Defendant

Both parties

Unmanned-style, Lee Jong-young, Kim Jong-Un, Kim Jin-Nam (prosecutions), Choi Chang-ho, and He/she shall hold a trial)

Attorney Jeong-yang (Korean National Ship)

An applicant for compensation shall be named the applicant for compensation.

1. Daejeon District Court Decision 2014Gohap264, 2015Gohap12 (Joint) and 2014 senior high-ranking35 (Joint) decided March 11, 2015, Supreme Court Decision 2015Ma980 Decided April 29, 2015 / Daejeon District Court Decision 2015Ma1865 Decided August 12, 2015

All the judgment below is reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

Innocence of a person who violates the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.

The request for the attachment order of this case is dismissed.

The application for compensation of this case is dismissed.

1. Summary of grounds for appeal;

A. Defendant and the requester for an attachment order (hereinafter referred to as “Defendant”);

1) misunderstanding of facts or misunderstanding of legal principles (as to the part concerning the judgment of the court of first instance 2014 high-priced264)

The Defendant, under an agreement with ○○○, only has a sex relationship and did not have raped, but also did not know that ○○ was a disabled person. Nevertheless, the lower court erred in recognizing that the remaining Defendant had raped ○○○.

2) As to the total amount of unfair sentencing (as to the total amount)

The punishment of the lower court (the first instance court: 4 years of imprisonment, the second instance court: 10 months of imprisonment, and the third instance court: 10 months of imprisonment) is too heavy.

B. Prosecutor (as to the judgment of the court of first instance)

1) The part of the defendant case

Unfair sentencing: The first instance court's punishment is too minor.

2) Part of the attachment order case

Defendant is likely to recommit a sexual crime. Nevertheless, it is unreasonable for the first instance court to dismiss the Defendant’s request to attach an attachment order.

2. Ex officio determination

Before making decisions on the grounds for appeal, this paper will examine ex officio.

First of all, the prosecutor applied for the amendment of a bill of amendment to the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes against the Defendant in the trial of the trial of the party, which changed the date and time of the crime from " August 29, 2014" to " around September 1, 2014," and this court permitted the amendment, thereby changing the subject of the judgment. This part of the judgment of the court below should be sentenced to a single punishment in relation to the remaining criminal facts as stated in the judgment of the court below and the former part of Article 37 of the Criminal Act. Thus, the part of the judgment of

In addition, the appeal against the defendant was filed against the whole judgment of the court below of first, second, and third, and this court decided to consolidate the above tax appeal cases, and the judgment of the court of first, second, and third shall be sentenced to one sentence in relation to concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the judgment of the court of first, second, and third cannot be maintained any more in this respect.

Despite the above reasons for ex officio reversal, the defendant's assertion of misunderstanding of facts or misapprehension of legal principles is still subject to the judgment of this court, and this will be examined below.

3. Judgment on the part of the defendant's case (the part on the defendant's assertion of mistake or misapprehension of legal principle)

A. This part of the facts charged

On August 2014, the Defendant had an interview on the victim ○○○○○○, which was operated by the Defendant through a job offer advertisement, with mental disorder Grade 3 and emotional distress 3 (the age of 38). In the above interview, the Defendant, despite being aware of the victim’s mental disorder, talked about the victim’s mental disorder 3 and emotional distress 3, and led the victim to the Defendant’s house located in the 203th, Gangnam-gu, Seoul Special Metropolitan City ( Address omitted) with the victim’s mental disorder.

Around 10:00 on September 1, 2014, the Defendant, at the above Defendant’s house, tried to display a dynamic image of the drinking water sold to the victim, and let the victim sit next to the Defendant, and tried to look at the victim’s chest, with his hand, and see the victim’s chest.

Therefore, when the victim gets out of the defendant's view to walking, the defendant saw the victim's resistance against the victim's right to the ship and forced the victim's clothes to be entirely forced, and sexual intercourse with the victim once.

Accordingly, the defendant raped the victim with mental disability.

B. Determination

1) Criminal facts in a criminal trial should be established based on strict evidence with probative value, which leads a judge to confluence to a reasonable doubt. Thus, in a case where the prosecutor’s proof fails to sufficiently reach the extent that the defendant’s assertion or defense is inconsistent or unreasonable, even if there is suspicion of guilt, such as where the defendant’s assertion or defense is inconsistent or unreasonable (see Supreme Court Decision 2012Do3722, Sept. 26, 2013).

2) The first instance court found the Defendant guilty of this part of the facts charged by comprehensively taking account of the evidence as indicated in its holding. However, the lower court’s determination is difficult to accept in the following respect.

A) First of all, ○○○ was judged as having a disability grade 3 on the ground of mental disability, and according to the inquiry inquiry report on △△△△ Mental Council members, and △△△△ Hospital from around 2009 to the recent period, it is recognized that ○○ received several medical treatments from 2009 to △△△△△△△△ in the form of a physical disorder, such as water surface disorder, exchange, exchange, damage network, etc. However, in light of the following circumstances acknowledged by the record, it is difficult to readily conclude that the Defendant was aware that ○○ was a disabled person at the time of having sexual intercourse with △○○, and there is

(1) In light of the contents of the statement made by ○○ in an investigative agency, the contents of the statement made in the court below and the court of the trial at the court below, and the attitude of the statement made in the court of the trial at the court of the trial, it is difficult for ○○ to recognize ○○ as a disabled person when ordinarily viewed that it is not easy to understand ○○ as a disabled person, instead of being aware of the substance of the question, and to accurately understand the facts that existed in about one year prior to the fact, and that it is not much easy to make daily dialogue or to lead a life.

(2) In the court of the first instance, ○○ stated in the court that “the Defendant was investigated by the police at a company traveling at the old male-friendly Gu on the ground that he was born with the old male-friendly Gu,” and “the Defendant was aware that it was necessary that he was made a mistake to the Defendant,” and “the Defendant was aware that he was inside the Defendant, while the Defendant and the talked with the Defendant, that “the Defendant returned the Handphone Handphone at the same time and made it known to the Defendant (or the Defendant so called so) was inside the door for the match,” it appears that the question of “if the basic life recipient was engaged in economic activities and deposited money in the passbook, it would hinder the receipt of the subsidies paid by the State?” In the same case, it appears that it was difficult for the Defendant to take money by means of a pre-age law, and if the monthly rent was carried into a sanction, it would be difficult for the Defendant to choose the terms and contents of the terms used at the time of speech or conversation, which are the mental disorder of the disabled.”

(3) Around 2009, ○○ was judged as having a grade 3 of intellectual disability. According to the statement by ○○○, he was diagnosed by a member of the △△ Mental Health Center and judged as having a disability, and she was admitted to and resided in the mental health sanatorium for about six months. Accordingly, the △△△△△ Mental Health Center stated that there was no diagnosis of such disability.

(4) After the graduation of a high school, ○○ had been living in the workplace. Although there is no driver’s license, she is aware that there is no driver’s license, she will be able to deal with smartphones, she has experience in marriage before the disability judgment, she has experience in living together even after the disability judgment, she is aware that there is experience in living alone, she is seeking monthly rent due to neglect, and it is somewhat doubtful to view she as a social life as a person

(5) Although the Defendant stated to the effect that “the Defendant had a disability in light of the interview before the Defendant, who was a person subject to livelihood security and who was a person subject to assistance from the Defendant.” However, the Defendant consistently asserted from the investigative agency to this court that “○○○ does not mean that he was disabled, and does not seem to have been disabled.” Generally, considering that it is exceptional to the fact that it is difficult for the job seeker to find out that the job seeker was a intellectual disability before the job offerer in order to report job offering advertisements and to find employment, it would be difficult to readily dismiss the Defendant’s assertion that ○○○○ was not a disability at the time of the interview, insofar as it was not proven in a specific basis or circumstance that it was difficult to determine that there was a intellectual disability, and as long as it was not confirmed by the Defendant at the time of the interview, the Defendant’s assertion that ○○○○ was not a disability to the Defendant. Even if the Defendant stated that there was a intellectual disability at the time, it appears difficult to view that the Defendant’s perception was a disability.

B) Next, each of the above statements made by Cho○○○’s investigative agency, the lower court, and the court of the first instance, as evidence that corresponds to the fact that the Defendant rapes the Cho○○, who had a mental disability, as shown in this part of the facts charged, is admissible. However, considering the following circumstances acknowledged by the record, each of the above statements made by Cho○○○ is highly difficult to believe with the fact.

(1) While ○○ stated, from the investigative agency to the trial of the party, that “the day following the interview or the day after the interview and the day after the interview was made, sexual assault was committed at the Defendant’s home.” However, ○○○ entered the Defendant’s house two and three times before and after the date of sexual assault in this court. On different days, the two different days of the Defendant’s house was drinking food, such as cryp, kimchi, chip, cryp, and so on, as well as the day after the date of the Defendant’s sexual assault, it appears to the effect that, in the way of reporting the new purchase of the Defendant’s house at the Defendant’s house, the Defendant considered a video related to the work on the computer, along with a way to report the new purchase of the Defendant’s house at the time after the date of the Defendant’s sexual assault. In addition, ○○ received several keyss from the Defendant to make it difficult for the Defendant to understand the Defendant’s key to the Defendant, including the need to contact with the Defendant.”

(2) On October 2014, 2014, ○○ filed a complaint with the Defendant around one month or more from the date of sexual assault from the Defendant, and later filed a complaint, the investigation agency stated to the effect that “The Defendant did not make a report by stating that “I will not make a report only when I would make a report. I would not make a report. I would make a report late. I would like to make a change in the idea that I would be inside the match.” However, in the court of first instance, the reason why the Defendant filed a complaint late is “I would return the Handphone to I would make it difficult for the Defendant to understand that I would not have been able to do so,” and in light of such circumstances, I would not be ruled out that there was a possibility that I would make a report to the Defendant late on the ground that I would make a report.”

(3) The Defendant appeared to have an attitude from the police to the court of the first instance in order to conceal a sexual relationship with the Cho○ at the time of the investigation. However, after the prosecution, the Defendant made a concrete and consistent statement on the relationship with the Cho○ at the time, and the circumstances surrounding and after the establishment of a sexual relationship, while ○○ has reversed the Defendant’s statement even though denying questions based on the Defendant’s statement, and has made considerable parts of the statement corresponding thereto. In light of the fact that the Defendant’s statement on the circumstance at the time was more trusted than ○○’s statement, the Defendant’s statement on this part seems to have been grounded on the Defendant’s vindication on this part.

3) Ultimately, it is difficult to view that the statement of Cho○○, which corresponds to this part of the facts charged, that the Defendant raped the Cho○○○, with mental disorder, is extremely reliable, and thus insufficient to use it as evidence of guilt, and that it was sufficiently proven to the extent that there is no reasonable doubt otherwise. Nevertheless, the first instance court found the Defendant guilty of this part of the facts charged because it was based on the statement of Cho○○, which fell short of credibility, and thus, it was erroneous in that judgment that affected the conclusion of the judgment by misunderstanding facts.

The defendant's appeal pointing this out is with merit.

4. Judgment on the part of the attachment order case

A. Relevant legal principles

In applying Article 35 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, except as otherwise provided for in the above Act, the provisions of the Criminal Procedure Act, etc. shall apply mutatis mutandis to the extent not contrary to its nature. Article 298(1) of the Criminal Procedure Act provides that “The public prosecutor may add, withdraw, or modify facts constituting an offense or applicable provisions stated in the indictment with the permission of the court. In this case, the court shall grant permission to the extent that the identity of the facts charged is not undermined.” Thus, the court shall grant permission unless there are special circumstances where a public prosecutor’s request for the revision of the request for the attachment order by the public prosecutor does not impair the identity of the facts charged. Meanwhile, the judgment on the application for the attachment order by the public prosecutor pursuant to Article 9(5) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders must be issued simultaneously with the judgment on the specific crime case. Additional measures taken for the purpose of re-socializing the attachment order by means of recidivism and character and behavior against the specific criminal offender are not identical with that of the specific crime case.

B. Determination

1) At the first instance court’s first instance court, a prosecutor prosecuted the Defendant on the charge of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape with a disabled person) and attempted rape. On December 10, 2014, a prosecutor filed a request for an attachment order based on the facts constituting the relevant facts charged. However, at the first instance court, the prosecutor joined the crime in violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Acts on Duties, etc.) and the second instance court filed a request for an attachment order on September 11, 2015, on the ground that the case of appeal in the first, second, and third lower court was involved in the crime of indecent act by compulsion, and filed a request for the alteration of the attachment order to add and expand the facts leading to the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape with a disabled person) and the crime of attempted rape on September 16, 2015.

However, the above request for revision of an attachment order by a prosecutor is added to the facts that are entirely different from the facts that are entirely different from the facts that are the cause of the request for the attachment order, and thus, in light of the above legal principles, such request for revision of an attachment order cannot be subject to permission by the court. In a case where there is an illegal cause, the court that issued the request for revision of the attachment order can cancel the request for revision (see Supreme Court Decision 2001Do116, Mar. 27, 2001, etc.). Accordingly, this court must cancel the above decision for the request for revision of the attachment order and reject the request for revision of the prosecutor’s request for revision of the attachment order (Therefore, the fact that the existing request for attachment

2) Furthermore, as examined in the judgment on the part of the Defendant case as seen earlier, the facts charged in violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape with Persons with Disabilities), which was found guilty by the judgment of the court below, should be pronounced not guilty. As such, the facts charged in violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape with Persons with Disabilities) were inconsistent with the facts charged in question and the facts charged

5. Conclusion

Therefore, the part of the judgment of the court of first instance regarding the defendant's case, the entire judgment of the court of first instance, and the part concerning the attachment order of the court of first instance, there are grounds for ex officio reversal as seen earlier, and in addition, the defendant's appeal on the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape with Persons with Disabilities) among the judgment of the court of first instance is well-grounded. Thus, without examining the grounds for unfair sentencing among the judgment of the court of first instance, Articles 364 (2) and (6) of the Criminal Procedure Act, and Article 35 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders,

The summary of the facts charged by this court and the evidence related thereto are as follows. Of the facts charged in the judgment of the court in the judgment of the court of first instance, the "written statement by the witness assistant ○" in paragraph (1) and the summary of the evidence were deleted. The defendant, in the judgment of the court of third instance, sentenced on June 15, 2012 to imprisonment with prison labor for not more than ten months and a fine not exceeding five million won in fraud, etc. and completed the execution of the sentence at the Gwangju District Court on October 15, 2012. On March 11, 2015, the Daejeon District Court sentenced on April 29, 201 to imprisonment with prison labor for not more than four years, and on April 29, 2015, the defendant changed the sentence from Gwangju District Court to 30 million won and the judgment of the court of first instance on June 15, 2015."

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

Articles 300 and 297 of the Criminal Act, Article 10(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (the Indecent Act by Abuse of Occupational Authority, etc.), Article 298 of the Criminal Act (the point of each indecent act by force, the choice of imprisonment), Article 347(1) of the Criminal Act (the point of fraud and the choice of imprisonment)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act: Provided, That with respect to attempted rape, the proviso of Article 42 of the Criminal Act shall not apply.

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (within the scope of proviso of Article 42 of the Criminal Act concerning attempted rapes prescribed in the most severe punishment)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. Order to complete programs;

Article 16(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Duty to register personal information;

Articles 42(1) and 43 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (with respect to the Crimes of Rape in the Market, Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Act in the Course of Duties, etc.), and indecent act

1. Exemption from an order for disclosure and notification;

Article 47(1) and Article 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, 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 circumstance of the crime of this case and the circumstances after the crime, etc.) are difficult to see that the defendant is highly likely to recommit a sexual crime; the defendant's imprisonment for a certain period of time, personal information registration, and the completion of a sexual assault treatment program for a certain period of time is likely to have an effect to prevent recidivism; and the defendant's age, family relationship, profits and the preventive effect expected by the disclosure and notification order to the defendant, and disadvantages and side effects therefrom are taken full account of all the circumstances.

1. Dismissal of application for compensation;

Articles 25(3)3 and 32(1)2 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (Article 25(3) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (Article 25(3)3 and Article 32(1)2 of the Act on Special Cases Concerning

1. Scope of applicable sentences under Acts: Imprisonment for one year and six months to twenty-five years; and

2. Scope of recommendations according to the sentencing criteria;

(a) Basic crime: Fraud;

[Determination of Punishment] Fraudulent Crime> General Fraud> Less than KRW 100 million (Type 1)

[Special Sentencing] Cumulative Offense

[Recommendation and Scope of Recommendation] Aggravation: Imprisonment with prison labor for one year to two years;

(b) Concurrent crimes under paragraphs (1) and (2): Each indecent act by compulsion;

[Determination of Type] General Criteria for Sex Crime>

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Area: Imprisonment of six months to two years;

(c) Scope of recommendations after handling multiple crimes: Imprisonment from one year to four years: (i) two years and six months, the upper limit of basic crimes + one year, two years and two years, one-year, two years and two years, one-year, the upper limit of the first concurrent crimes + one-third, two years and one-year, two years and one-third, the upper limit of the second concurrent crimes);

[The sentencing guidelines are not set for attempted rapes in relation to each of the above crimes, and the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Acts on Occupational Authority, etc.). Thus, the sentencing guidelines are set. Thus, the minimum sentencing guidelines set for each of the above crimes shall govern.]

(d) Scope of final recommendations made pursuant to legal applicable sentences: Imprisonment with prison labor for a year and June, and between four years and two months;

3. Determination of sentence: Imprisonment for 2 years and 6 months; and

The defendant has been punished more than three times to commit multiple crimes including fraud, and the period of repeated crime for which three years have not yet passed since the end of life in prison due to fraud, etc. at the time of each of the crimes of this case is a repeated crime period of which the victim employed or wishing to be employed by himself/herself without being able to commit several times of sexual crime, and committed a secondary crime against many victims. The motive, method, mode and consequence of the crime, the number of victims, the risk of the crime, the circumstances after the crime, etc. are not very good in light of the motive, method and consequence, the victim's number, the risk of the crime, and the circumstances after the crime.However, since the victims' damage was completely recovered, it is not easy to punish the defendant.

However, it seems that the defendant has been repented of his mistake late, and this point is considered as favorable circumstances.

Accordingly, the defendant's age, character and conduct, environment, family relations, relationship with victims, motive, method and result of the crime, circumstances after the crime, recovery of damage, and criminal records, etc., are comprehensively integrated, and the punishment against the defendant shall be determined by referring to the scope of recommendations according to the above sentencing guidelines.

1. A summary of the cause of claim;

A defendant has committed two or more sexual crimes, such as a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and a crime of attempted rape, and one of them has committed against a person with a physical or mental disability, and there is a risk of recommitting a sexual crime.

2. Determination

A. The risk of recommitting a sexual crime under Article 5(1) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders means that the possibility of recommitting a sex crime is insufficient solely with the possibility of recommitting a crime, and that there is a probable probability that the person subject to the request for an attachment order may de facto injure the legal peace by committing a sexual crime again in the future. The existence of the risk of recommitting a sexual crime ought to be objectively determined by comprehensively assessing various circumstances, including the occupation and environment of the person subject to the request for the attachment order, the criminal conduct prior to the crime, the motive, means, the circumstances after the crime, the circumstances after the crime, and the situation after the crime, and such determination ought to be based on the time of the judgment (see Supreme Court Decision 2010Do7410, 2010Do444, Dec. 9, 20

B. The facts charged as to the Defendant’s violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape with Persons with Disabilities) constitute a time when there is no proof of a crime as seen in the above 3.B., and thus, the facts constituting the cause thereof cannot be used as a basis for determining whether or not the Defendant is likely to recommit a sex crime. Meanwhile, in full view of the following circumstances acknowledged by the evidence adopted and investigated by the first instance court, the risk of recidivism of the Defendant is assessed as 10 points, namely, as follows: (a) the degree of risk of recidivism is assessed as 10 points; and (b) the level of “halfway” (low to 0-6 points, middle 7-12 points, high to 13-29 points); (c) the Defendant’s imprisonment with prison labor for a certain period, personal information registration, and sexual assault treatment programs, it is difficult to readily conclude that the Defendant is likely to recommit a sex crime again.

C. Therefore, the request for the attachment order of this case is dismissed in accordance with Article 9(4)1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders on the ground that the request for attachment order of this case is groundless.

The summary of the facts charged against the defendant in violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape with Persons with Disabilities) is as stated in the above 3. A. The above 3.B., and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, since there is no proof of a crime as stated in the above

Judge Lee Jae-han (Presiding Judge)