(영문) 서울중앙지방법원 2018.12.14. 선고 2018고합907 판결

The defendant shall issue an employment restriction to a child or juvenile-related institution, etc. for five years. An order shall be issued to a person subject to probation order subject to probation for three years, and compliance with the attached Form.

Matters shall be imposed.

Reasons

Criminal facts and facts constituting the probation order

【Criminal Power】

On April 22, 2016, the defendant and the person requesting a probation order (hereinafter referred to as the "defendant") sentenced the Seoul Northern District Court to imprisonment with prison labor and one year and six months for quasi-rape, and completed the execution of the sentence on December 8, 2017.

【Criminal Facts】

1. Intrusion upon residence;

On July 26, 2018, at around 05:43, the Defendant: (a) was boarding the river basin located in Gangnam-gu Seoul Metropolitan Government with subway No. 4 lines; (b) was under the influence of alcohol by the victim B (the name of the passenger, the passenger, and the age of 39); and (c) was able to commit an indecent act by following the victim; (b) around 06:14 of the same day, the Defendant followed the victim’s back from the East Station located in Jongno-gu Seoul Metropolitan Government; and (c) around 06:21 on the same day, the Defendant opened the front door door of the victim’s house located in the same Gu C, which was not corrected by deeming the victim’s entry into the said house; and (d) the person, who was under the influence of alcohol, and was under the influence of alcohol, was at the house of the victim, on the ground that the victim cannot be identified.

Accordingly, the defendant invadedd the victim's residence.

2. Indecent acts by quasi-indecent acts;

피고인은 전항 기재 일시 직후인 2018. 7. 26. 06:35경 다시 위 피해자의 집 안방까지 들어가 술에 취해 잠들어 있는 피해자의 양쪽 가슴을 양손으로 주무르고 다시 피해자의 브래지어를 내린 다음 입으로 피해자의 양쪽 젖꼭지를 빨았다. 이로써 피고인은 피해자의 주거에 침입하여 피해자의 심신상실 상태를 이용하여 추행하였다.

[Fact of Grounds for Probation Orders]

On April 22, 2016, the Defendant committed the instant sexual crime against a female who has lost the mind of under the influence of alcohol, and was sentenced to imprisonment with prison labor for one year and six months for quasi-rape on April 22, 201, and on December 8, 2017, the Defendant committed the instant sexual crime against a female who has lost the mind of under the influence of alcohol, and committed the instant sexual crime against a female who is similar only to eight months after having been discharged from prison after having completed the execution of the said punishment. In full view of the Defendant’s tendency,

Summary of Evidence

1. Defendant's legal statement;

1. The written statement made by the police against B;

1. One copy of a written request for appraisal and a written appraisal;

1. A written inquiry about the details of transportation cards;

1. Report on internal investigation (the details of CCTV internal investigation and use of CCTV card for the accused), investigation report (the capture of CCTV images that the accused is going to the victim's house), investigation report (the photographing of inside the scene after reporting), investigation report (the photographing of the identity of the accused in the sexual assault case), investigation report (the response of specific notification of the genes in the sexual assault case), and investigation report (the activities of the subway No. 4 under the sending of a writ);

1. Eight copies of CCTV images;

1. Previous records of judgment: Criminal records, correspondence records, personal confinement status, and two copies of judgment;

1. The risk of recidivism in the judgment below: The following circumstances acknowledged by the evidence duly adopted and investigated by the court, including the character and conduct of the defendant, the environment, family relationship, the motive and background of the crime in this case, the method and content thereof, and the situation before and after the crime, are acknowledged to be likely to recommit a sexual crime.

(1) A defendant has many records of criminal punishment and has the record of having been punished as imprisonment with prison labor by committing a sexual crime.

② As above, the Defendant was sentenced to imprisonment with prison labor by committing the crime of quasi-rape, and subsequently committed the instant crime again at least eight months after the execution of the sentence was completed.

③ Sexual crimes committed by a criminal defendant and crimes of this case are committed against an unspecified female under the influence of alcohol, and are similar to the method of committing such crimes.

④ According to the results of the evaluation of the risk of sex offenders in Korea (K-SORAS), the defendant's risk of recidivism falls under the intermediate level of 11 points in total, but belongs to the higher level in the relevant section (7-12 points). Furthermore, according to the results of the evaluation of the defendant's mental disorder selection scheme (PC-R), the defendant's risk of recidivism falls under the intermediate level of 21 points in total, but falls under the higher level in the relevant section (7-24 points).

Application of Statutes

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

Article 3(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, Articles 319(1), 299(a), 319(a), 319(1) of the Criminal Act (a) of the Criminal Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (a point of residence intrusion and a

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act (Limits to the proviso to Article 42 of the Criminal Act in regard to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, Article 50, and the proviso to Article 42 of the Criminal Act [the penalty concurrent crimes prescribed in the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with heavy penalty]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. An order for disclosure and notification;

Articles 47(1) and 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the main sentence of Article 49(1) and the main sentence of Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Jan. 16, 2018); Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Mar. 13, 2018)

1. Issuance of probation orders and matters to be observed;

Article 21-2 subparag. 1, Articles 21-3, 21-4, and 9-2(1)3 and 4 of the Act on the Probation, Electronic Monitoring, etc. of Specific Criminal Offenders

1. proviso to Article 16 (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with Non-compliance Order (this shall not apply to cases where an order is issued to a defendant on probation and completion of sexual assault treatment programs is imposed due to the matters to be observed, and

1. Reasons for sentencing: Imprisonment with prison labor for a period of two years and six months to twenty-five years;

2. Scope of recommendations according to the sentencing criteria;

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

[Determination of Punishment] The type 2 of the crime of indecent act by force (subject to the age of 13 or more) on the basis of the general standards on sexual crimes (a indecent act by force, such as by force or by force, by force or by special force)

[Special Aggravations] Aggravations: Cumulative repeated crimes of the same kind which do not fall under specific violent crimes (Cumulative Crimes)

[Scope of Recommendation] Aggravation, 4-7 years of imprisonment

(b) Crimes of intrusion upon residence: The sentencing criteria are not set. The final recommending type according to the standards for handling multiple crimes: Imprisonment with prison labor for not less than four years (the crime for which the sentencing criteria are set and the crime for which no sentencing guidelines are set are concurrent crimes under the former part of Article 37 of the Criminal Act, considering only the lower limit of the sentencing range in light of the sentencing criteria for the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes for which the sentencing

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and result of the crime, and various sentencing factors specified in the arguments in the instant case, such as the circumstances after the crime, shall be determined as the order.

○○ Unfavorable Circumstances: Each of the instant crimes committed by the Defendant, upon intrusion upon the Victim’s house, was intruded by the said house, and thus, committed an indecent act against the Victim under the influence of alcohol in the inside of the house, and the nature of the instant crime is not somewhat weak in light of the circumstances and methods of the crime. The Defendant was sentenced to imprisonment for a year and six months due to quasi-rape, and again committed the instant crime at least eight months after the execution of the sentence was completed, and thus, is highly likely to be subject to criticism in that he/she committed the instant crime. The victim appears to have caused considerable mental impulse and sexual humiliation. The victim was punished against the Defendant.

In the case where a conviction becomes final and conclusive for a crime of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Act by compulsion by force) in a gender-based judgment subject to registration and submission of personal information, 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 is obligated to submit personal information to the competent agency pursuant to Article 43 of the same Act.

Meanwhile, with respect to the defendant, a sex crime which causes the registration of personal information under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and other crimes are concurrent pursuant to Article 37 of the Criminal Act and the punishment is prescribed pursuant to Article 38 of the Criminal Act. The period for registering personal information resulting therefrom is 20 years pursuant to Article 45(1)2 and (2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. However, considering the nature of each of the crimes in this case and seriousness of the crimes, it is not recognized that the period for registering personal information of the defendant is unreasonable, and therefore, the period for