Defendant

Unmanned-ROMs (Filing of Prosecutions) and Hy-youngs (Public Trial)

Attorney Cho Jae-young (Korean)

A defendant shall be punished by imprisonment for four years.

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

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

On June 15, 2012, the Defendant, at the Gwangju District Court, sentenced 10 months of imprisonment and 5 million won of fine for the violation of the Act on the Regulation of Fraud and Unauthorized Receipt of Claims, etc., and completed the execution of the sentence in the Gwangju Prison on October 15, 2012.

" 2014 Gohap264"

1. Special Act on the Punishment, etc. of Sexual Crimes;

On August 28, 2014, through the job offer advertisement, the Defendant was considered to have an interview on the victim ○○○○○○○○, which was operated by the Defendant, with mental disorders of Grade 3 and ullosis (the age of 38). In the above interview, the Defendant, despite being aware that the victim had mental disorders of Grade 3 and ull with a view to having mental disorders of Grade 3 and ull and that it is not good for the victim, the Defendant, despite being aware that there was a mental disorder of the victim, had a defect in talking with the victim in relation to his duties, and induced the victim to the house of the Defendant, who was 203 of Grade 2 in the south-gu,

On August 29, 2014, at the above defendant's house around 10:00, the defendant sent 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 her 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.

2. Attempted rape;

On September 5, 2014, through job offer advertisements, the Defendant considered the interview on the victim Kim ○○○○, operated by the Defendant, on the part of the Defendant ○○○○○○○ (the age of 33). The following day, the Defendant: (a) talked with the victim about his/her duties by phone calls; (b) talked with the victim; (c) talked with the victim; and (d) entered the victim’s house in Yanan

On September 6, 2014, when the Defendant had talked about the business of the above victim's house at around 01:30, the Defendant: (a) placed the victim on the floor, detained the victim's resistance on the part of the vessel; and (b) attempted to have sexual intercourse with his/her chest and drinking with the victim by putting the victim back back his/her opening, leaving his/her finger back with the victim's clothes; and (c) attempted to have sexual intercourse; (d) however, the Defendant did not have sexual intercourse with the Defendant by making it difficult for the victim to do so by his/her hand.

Accordingly, the defendant attempted to rape the victim.

" 2015 Gohap12"

3. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Acts in Occupational Abuse, etc.);

피고인은 ‘☆ ☆☆☆유통’이라는 상호로 건강주스 등을 수입하여 판매하는 유통업을 영위하였던 사람이고, 피해자 오○○(여, 40세)은 2013. 10. 5.경부터 2013. 12. 2.경까지 피고인으로부터 고용되어 위 ☆ ☆☆☆유통에서 건강주스를 판매하는 영업사원으로 근무하였던 사람이다.

Around 21:00 on November 28, 2013, the Defendant, while drinking alcohol with the victim in the “pro rata Dong-dong-dong-gu, Gwangju-gu”, the Defendant: (a) was able to collect money from the victim that “if he well listens to the horses in the city and is extremely high-speed, he shall be promoted with high-speed and may be held.” (b) the Defendant, while speaking, was able to take the victim’s hand and make the victim sit up against the Defendant, and then write down the buckbucks as her clothes of the victim.

While the defendant was waiting for the above car page and for the cab, the defendant saw the victim's kn's kn's kn's kn's kn's kn's kn's kn's kn't.

Accordingly, the defendant committed indecent acts by force against the victim under his supervision due to employment.

1. Partial statement of the defendant;

1. Each legal statement made by the witness ○○, Kim○, and OO○;

1. Each prosecutor and police interrogation protocol of the accused;

1. Recording notes;

1. Investigation report (attaching a photograph of text message sent by a victim to a suspect);

1. The point of previous records of judgment: Criminal history records, inquiry reports, investigation reports (report attached to judgments), and investigation reports in the evidence records of 2014 punishment and 13293 of the Gwangju District Prosecutors' Office (written rulings for repeated crimes and current status of personal identification and confinement);

[In full view of all the above evidence, including the victim's ○○, Kim○, and O○○'s statements, the facts constituting the crime can be acknowledged as indicated in the judgment]

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

Article 6(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 297 (Rape of Persons with Disabilities, Selection of Imprisonment) of the Criminal Act, Articles 300 and 297 (Attempted Rape) of the Criminal Act, Article 10(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Acts by Occupational Authority, etc. and Selection of Imprisonment)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act: Provided, That the proviso of Article 42 of the Criminal Act shall not apply to the crimes of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and attempted rapes

1. Aggravation for concurrent crimes;

Articles 37 (former part of Article 37, Article 38 (1) 2, and 50 of the Criminal Act [Aggravated Punishment for Concurrent Crimes within the limit of the proviso of Article 42 of the Criminal Act]

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (The following circumstances considered as favorable to the reasons for sentencing)

1. Order to complete programs;

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

1. Exemption from an order for disclosure and notification;

In full view of Articles 47(1) and 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 (Although the defendant committed a sexual crime on three occasions, he/she has no criminal record of the defendant, it is difficult to readily conclude that the defendant is highly likely to commit a sexual crime against many unspecified persons, taking into account the circumstances such as the benefits and effects expected by the disclosure and notification order of this case and the disadvantages and side effects resulting therefrom, it is difficult to conclude that the defendant's personal information should not be disclosed or notified.

Where a conviction becomes final and conclusive on each crime in the judgment, the defendant is a person subject to registration of personal information under Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus, he/she is obligated to submit personal information to the competent agency in accordance with Article 43

1. The scope of punishment by law: Imprisonment for a period of three years and six years to fifty years;

2. Application of the sentencing criteria;

(a) A crime of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

[Determination of Type] Sex Offenses and Rapes for Persons with Disabilities (at least 13 years of age)

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment for 6 to 9 years

[General Aggravationd ] Aggravation : Use of Personal Trust Relationship and Cumulative Cumulative Offense not constituting Cumulative Offense

(b) Handling multiple crimes: Imprisonment with prison labor for not less than six years; and

Since the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape with Disabled Persons) to which the sentencing guidelines are set, and the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Act in Occupational Authority, etc.) to which no sentencing guidelines are set, are concurrent crimes under the former part of Article 37 of the Criminal Act, only the lower limit of the sentence range is observed in the sentencing guidelines for the crime of violation of the Act

3. Determination of sentence: Four years of imprisonment; and

The instant crime was committed against the victims employed by or wishing to be employed by a business entity operated by the Defendant, and its nature is very poor in light of the method of crime, mode of conduct, and risk. Furthermore, the victims seem to have suffered considerable mental impulse and sexual humiliation due to the instant case. Nevertheless, the Defendant, without his fault, consistently made arguments from the investigative stage to the present court.

However, under the circumstances favorable to the defendant, such as the fact that the defendant has no criminal record for the same kind of crime, the fact that the defendant did not have committed the crime of this case in a planned manner, the fact that the exercise of tangible force weighted in the course of the crime of this case, and the fact that ○○○ disability cannot be deemed to have been serious, etc., shall be considered as favorable to the defendant. In addition, considering the defendant's age, character and behavior, environment, family relationship, relationship with the victim, motive for the crime, means and consequence of the crime, all sentencing factors specified in the arguments of this case, such as the circumstances after the crime, the sentence of imprisonment with prison labor exceeding the lower limit of the sentencing range

1. Summary of request;

A person subject to a request for attachment order has committed two or more sexual crimes as stated in the facts constituting a crime, and one of them was a sexual crime against the disabled person. For the same reason, it is necessary to attach a location tracking device to the person subject to the request for attachment order and to impose special matters to be observed (200 hours of sexual assault treatment program) as well as to attach an electronic tracking device to the person subject to the request for attachment order.

2. Determination

The term “risk of recidivism of 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 recidivism is insufficient only, and there is a probable probability that the person subject to the request to attach an electronic device may injure the legal peace by again committing a sexual crime in the future. The existence of the risk of recidivism of 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 to attach an electronic device, the criminal conduct and environment prior to the crime, the motive, means, circumstances after the crime, the circumstances after the crime, and the outline, etc. (see, e.g., Supreme Court Decision 2010Do7410, Dec. 9, 2010).

In the following circumstances acknowledged by the evidence duly adopted and examined by the court, namely, the Korea risk assessment level of a sex offender against the person who requested an attachment order (K-SSAS) is at least 10 points in recidivism risk, and as a result of the application of the PC-R to the exclusion of a mentally ill person (PC-R), a comprehensive recidivism risk is at least 20 points in the mental disorder level, and the comprehensive recidivism risk is at least “half times” level, and the investigation before the request states that “the person who requested the attachment order is not identical to the person who requested the attachment order, and the person who requested the attachment order should carefully review the attachment of the electronic tracking device, considering that the person who requested the attachment order was not with the intention to prevent sexual crimes from being committed from the beginning.” The distorted sexual impulse of the person who requested the attachment order revealed by the crime of this case appears to have been considerably mitigated or corrected through the completion of convict life and sexual assault treatment program, and it is difficult to conclude that there is no evidence to establish any risk of recidivism by the prosecutor.

Therefore, the request for the attachment order of this case is without merit, and it is dismissed in accordance with Article 9(4)1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders.

Judges Soh-man (Presiding Judge)