Defendant

Defendant

Maintenance year (prosecution), Lee Jae-jin (public trial)

Attorney Cho Chang-soo (National Assembly)

Cheongju District Court Decision 2018Gohap197, 2018 Jeon high-ranking36 (Consolidated) Decided January 18, 2019

The part of the judgment of the court below regarding the defendant case shall be reversed.

A defendant shall be punished by imprisonment for six years.

The defendant shall be ordered to complete the sexual assault treatment program for 80 hours.

The defendant shall be subject to employment restrictions for ten years with respect to children and juveniles-related institutions, etc. and welfare facilities for persons with disabilities.

1. Scope of the judgment of this court;

The court below sentenced a judgment dismissing the prosecutor's request regarding the part of the case for which the request for attachment order was filed while it sentenced a conviction on the part of the defendant's case, and since only the defendant appealeds against it, there is no interest in appeal regarding the part for which the request for attachment order was filed. Therefore, notwithstanding Article 9 (8) of the Act on Probation and Electronic Monitoring, the scope of trial of this court is limited to the part of the defendant's case

2. Summary of grounds for appeal;

The sentence of the lower court (one year of imprisonment, 80 hours’ order to complete a program, and 10 years’ employment restriction order) is too unreasonable.

3. Ex officio determination

Article 59-3(1) main sentence of Article 59-3(1) of the Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018; effective June 12, 2019) provides that where a court sentences a person to "sexual crimes" (referring to sexual crimes defined in Article 2(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes or sex crimes against children and juveniles defined in subparagraph 2 of Article 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse), it shall sentence orders to operate welfare facilities for a certain period or not provide employment or actual labor to welfare facilities for persons with disabilities simultaneously with a judgment of a sex offense case. The proviso to the above provision provides that the same shall not apply to cases where the risk of recidivism is significantly low or where there are special circumstances that need not restrict employment. Meanwhile, the amended provisions of Article 59-3 of the Act on the Punishment, etc. of Sexual Crimes shall apply to persons who committed a sex offense before this Act enters into force.

Each crime in the judgment of the court below constitutes a sex offense under the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and the Act on the Protection of Children and Juveniles against Sexual Abuse, and at the same time the judgment of the court below is judged as to whether the defendant is sentenced to or exempted from employment restrictions on welfare facilities

4. Conclusion

Therefore, the part of the judgment of the court below on the defendant's case is reversed under Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the part of the judgment of the court below on the defendant's case is again decided as follows through pleading.

Since each corresponding part of the judgment of the court below is the same as the corresponding part of the judgment below, it shall be quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 5 (1) (a) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 7 (1) (a) of the Act on the Protection of Children and Juveniles against Sexual Abuse (a point of rape by relative relation), Article 5 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a point of indecent act by relative relation), Article 7 (2) 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse (a point of similarity between children and juveniles)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Rape in Relation to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes) and the Act on the Protection of Children and Juveniles against Sexual Abuse; the punishment imposed on the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape in Relation to Relatives); the punishment imposed on the violation of the Act on the Protection, etc. of Children and Juveniles against Sexual Abuse with more severe punishment; the punishment imposed on the violation of the Act on the Protection, etc. of Children and Juveniles against Sexual Abuse; and the punishment imposed on the violation of the Act on the Protection of Children

1. Selection of punishment;

Selection of a limited term penalty for a crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse.

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in the Act on the Protection of Children and Juveniles against Sexual Abuse, which is heavier than the punishment)

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Exemption from an order for disclosure and notification;

In light of the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the fact that it is difficult to readily conclude that a defendant has a risk of re-offending of a sexual crime, such as having no record of punishment against the defendant for a sexual crime; the fact that the registration of personal information of the defendant against the defendant and the completion of a sexual assault treatment program alone appears to have the effect of preventing re-offending; the defendant's age, occupation, family environment, social relationship, method and consequence of the crime; the method and consequence of the crime; the disclosure order; the preventive effect expected by the notification order; the disadvantage and anticipated side effects of the defendant's entry; and the victim protection effect

1. An employment restriction order;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse ( January 16, 2018), the main sentence of Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 2 of the Addenda to the Act on Welfare of Persons with Disabilities (Act No. 15904, Dec. 11, 2018); the main sentence of Article 59-3(1) of the Act

Where a conviction of this case becomes final and conclusive, the defendant is a person subject to registration of personal information pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus is obligated to submit personal information to the competent agency pursuant to Article 43 of the same Act.

Each of the crimes of this case is very poor because the defendant committed rape or forced similarity of a victim who is one of his or her father and is a child of 14 years old and has intellectual disabilities. Although the defendant, as his or her father, is responsible for raising and protecting the victim in a sound manner, he or she committed repeated crimes to satisfy his or her distorted sexual desire. The victim seems to have caused considerable sexual humiliation and mental impulse due to each of the crimes of this case on the age around which he or she formed sexual identity and values.

However, the Defendant led to the confession of each of the crimes in this case, and there is no record of punishment for sexual crimes before the instant case. The Defendant’s wife, son, and son wished to take the Defendant’s wife against the Defendant. The victim stated to the effect that “the Defendant would take advantage of the Defendant’s direct apology with the victim,” in the course of the investigation of sentencing in the trial of the first instance after the her mother and her son, and the victim stated to the effect that “the Defendant would take advantage of the Defendant’s direct apology with the victim,” and it appears that the Defendant

The punishment as ordered shall be determined by taking into consideration the following circumstances: the defendant's age, character and conduct, environment, family relationship, motive and background of the crime, circumstances after the crime was committed, and all of the sentencing conditions shown in the records and arguments of this case.

Judges Kim Sung (Presiding Judge) (Presiding Judge) and Lee Hong-hee