Defendant

Defendant

Kim Jong-tae

Attorney Han-soo (Korean National Assembly Line)

Suwon District Court Decision 2006Gohap50 Decided May 3, 2006

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for fifteen years.

The ninety-six days of detention before the pronouncement of the judgment below shall be included in the above sentence.

1. Summary of grounds for appeal;

A. Error of mistake

The lower court found the Defendant guilty of all of the above parts, even though the Defendant did not have threatened the victim with a knife, which is a dangerous object at the time of committing the crime as prescribed in paragraph (1) of the lower judgment, by taking the 6,000 won in cash from the knife, or by taking the knife from the knife

(b) Mental illness;

The Defendant, at the time of committing the instant crime, was unable to participate in sexual desire for children and committed the instant crime under the state that the Defendant was unable to discern things or make decisions due to mental illness, such as a certificate of damage from a juvenile from time to time, and a certificate of mental fission, etc., which was suffering from suffering from the instant crime, but the lower court erred by neglecting the Defendant’s state of mental disorder.

C. Unreasonable sentencing

In light of the various sentencing conditions of this case, the sentence imposed by the court below against the defendant is too unreasonable.

2. Determination

A. Part concerning mistake of facts

The evidence of the court below, which corresponds to the part of the defendant's assertion that there was an error of mistake of facts in the facts alleged in the judgment of the court below, in particular, the victim non-indicted 1 and 2's statements are ① their body and consistency, there is no special reason to make a false additional statement in order to gather the defendant although they did not take custody of money, and ② according to the court decision (575 pages of investigation records) on the previous crime committed by the defendant which is bound in investigation records, the defendant entices her children to take 1,00 won into consideration, and used the method of the crime of rape, such as apartment house, and her body and body. As such, the above victim non-indicted 1 got deducted from 6,00 won before her clothes, and 1,00 won among them did not appear to have been found to have been credibility and credibility of the defendant's statement that corresponds to the above investigation records in light of the fact that the defendant made a false statement within 25,00 won.

B. Part of mental health and injury

According to the results of the mental examination in the trial of the court, the defendant argued that he was unable to attend the school by rapeing the female under nine years of age at around 1983 when he was a middle student; that the contents of the repeated crime are raped with the defendant; that the defendant was sexual assaulted by his father at the time of the sixth year of elementary school; thereafter, the defendant had constantly been sexually abused by his father at the time of the sixth year of elementary school; that he had experienced sexual desire only for his female sexual behavior or sexual wound; that the defendant's image has very irregular and function is very poor; that the defendant's emotional problem, such as depression, shock, impulse, etc., is very unstable; that the defendant's sexual disorder, sexual impulse, sexual impulse, and sexual disorder, which caused the defendant's serious mental disorder and mental disorder at the time of the crime of this case.

As a result of the above mental appraisal, in light of the Defendant’s criminal records, the content and frequency of the instant crime, etc., the Defendant was found to have caused the instant crime without suppressing the impulse of the crime due to the opportune certificate at the time of the instant crime, and was in a state of lacking the ability to decide the intention or to discern things, and thus, the Defendant’s assertion of mental disability is

3. Conclusion

Therefore, since the defendant's appeal is partially reasonable, the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without examining the remaining argument of unfair sentencing, and it is so decided as per Disposition after pleading.

The summary of the criminal facts and evidence recognized by this court is as stated in each corresponding column of the judgment below, except for adding "a dangerous person" to "a person who is terminated" of the first head of the criminal facts of the judgment of the court below (as stated in the second 6th of the judgment of the court below) and "a person who lacks the ability to discern things or make decisions due to satisfy evidence," and adding "a dangerous person" in front of the second 12th of the "satch of the judgment of the court below (as stated in the corresponding column of Article 369 of the Criminal Procedure Act).

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 9 (1) and 6 (1) of the Act on the Punishment of Sexual Crimes and the Protection of Victims thereof, Article 297 of the Criminal Act (the point of injury by rape and the selection of limited imprisonment under paragraph (1) of the same Article), Article 333 of the Criminal Act (the point of each robbery under paragraphs (10) of the same Article), Articles 301, 297 of the Criminal Act (the point of each robbery under paragraphs (2), 3, 6, 8, 9, 10, 11, and 12 of the same Article in the market), Articles 301, 297 of the Criminal Act (the point of each rape injury under paragraphs (2), 3, 6, 8, 9, 10, 11, and 12 of the same Article), Article 8-2 (1) of the Act on the Punishment

1. Aggravation of repeated crimes;

Article 35 (Limits under proviso of Article 42 of Criminal Act)

1. Mitigation of mental illness;

Articles 10(2) and 55(1)3 of the Criminal Act

1. Aggravation of concurrent crimes;

Article 37 (Aggravation of Punishment of Sexual Crimes and Punishment of Victims Thereof under the former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Punishment of Sexual Crimes and Punishment of Victims Thereof)

The defendant rapes 12 female students under the age to attend an elementary school, resulting in mental impulses that will not be entirely erased to his and his and her family members; the crime of this case is highly interviewed and active; the defendant committed the crime of this case in a state of mental disorder; he and she was sentenced to imprisonment with prison labor for not more than 5 years for the crime of violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims (Rape, etc. of Minors under the age of 13) even before the crime of this case; he and after three months have passed since he was released from the school and 12 times repeatedly from February 11, 2005 to January 22, 206; and returned home or her school or pedagoging a child who had a way to go ahead of her residence to her private teaching institute; the defendant committed the crime of this case in a state of mental disorder; the defendant committed the crime of this case in a state of mental disorder; the defendant's experience and family environment favorable to the defendant; the defendant's age of this case;

Judges Lee Jae-hwan (Presiding Judge) Kim Jong-ho