2013Gohap1024 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (13 years of age)

The name of a crime recognized as a minor rape: A sexual crime.

Violation of the Act on Special Cases concerning the Punishment, etc. of Minority (13 years of age);

(B) The punishment of sexual assault crimes, etc.

A crime recognized as a crime of rape in violation of the Act on Special Cases.

Name: Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (the foregoing)

Special Cases concerning the punishment, etc. of sexual crimes)

Violation of the Act (indecent act by blood), violence

Article 4 (Bodily Injury Caused by Group, Deadly Weapons, etc.)

2013. The order to attach 58 (Joint) the device;

Applicant for Attachment Order

A (*************************), and non-service workers.

Residence

Reference domicile

Kim 00 (Court Prosecutions) and Chapter 00 (Court Trials)

Attorneys Han-O (Korean Bureau)

March 24, 2014

A defendant shall be punished by imprisonment for ten years.

To order the defendant to complete the sexual assault treatment program for 80 hours.

The information on the accused shall be disclosed and notified through the information and communications network for ten years (Provided, That the crime of a crime subject to disclosure shall be limited to the crime No. 1 and No. 3 of the judgment).

For the applicant for an attachment order, an electronic tracking device shall be attached for 20 years.

The prosecution against the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes among the facts charged in the instant case is dismissed.

Criminal facts and facts of the cause of request for attachment order

[Criminal Facts]

1. Around July 2012 and around September 2012, the Defendant and the requester for attachment order (hereinafter “Defendant”) arranged the Defendant’s mother at the Defendant’s home room located in the Yangcheon-gu Seoul Metropolitan Government △△△△△ apartment, △△△△△△△△△△△△△, located in the Defendant’s home room located in the △△△△△△△△△△△△, Yangcheon-gu, Seoul, as well as the Defendant’s home room located in the △△△△△△△△△△△△△△△△△△, located in the △△△△△△△△△△△△△, located in the △△△△△△△△△△△△, and arranged the Defendant’s news taken from the Defendant’s home with the Defendant’s birth, and followed the shower and her clothes to the victim, who wanted to take the Defendant and her clothes, and sexual intercourse with the victim under the age of 13 by force.

2. Violation of the Punishment of Violences, etc. Act (a group, a deadly weapon, etc.).

A. On March 26, 2013, the Defendant, at the Defendant’s house living room of △△△ apartment, 08 △△△△△△△△-dong, △△△△-7, the Defendant stated that the Defendant, who was a relative to the Defendant’s school, went back to her school, her child Kim Jong-hee (here, 12 years old) and made himself/herself a child abuse crime by referring to her head, arms, and legss of the victim’s head, arms, legs, and legs, etc., which are dangerous articles in the length of the Defendant’s body, were put to the victim’s body, she could not know the number of days of treatment.

B. On June 6, 2013, the Defendant, at the Defendant’s house room of △△ apartment, 08 △△△△△△△△07, based on the victim’s head head room, which is a dangerous object without any justifiable reason, brought up two parts of the victim’s head room in which the victim’s number of days of treatment cannot be identified.

3. Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (compreting deceptive means, etc.);

On July 26, 2013, the Defendant had sexual intercourse with the victim, who was a child or juvenile, in the Defendant’s house located in △△ apartment, 08 △△△△ 07, △△△△, on July 26, 2013, at the Defendant’s house, and had sexual intercourse with the victim by force.

【Fact of Grounds for Filing Requests for Attachment Orders】

As above, the Defendant committed a sexual crime against a victim under the age of 19 on more than two occasions, and, in light of the fact that a sexual crime against a victim who is a pro-child, has been committed against the victim, who is beyond the socially accepted sense, and has a dynamic sexual exploitation, the risk of recidivism and recidivism of a sexual crime is recognized.

Summary of Evidence

Each fact of Nos. 1 and 3

1. Each statement made by the victims of each video recording CD;

Facts of Decision 2

1. Statement of the second protocol of interrogation of the accused prepared by the public prosecutor as to the accused in the second protocol (part that the accused made the phone call at school and made the victim time);

1. The witness Kim Jong-soo’s statement

1. Each statement made by the victim recorded in each CD; 1. Counseling day and place of health service, investigation report (report related to drugs treated by the victim in a school health room) and investigation report (a document attached to a photograph after confirmation of the place of crime);

The risk of recidivism and recidivism of sexual crimes in the judgment

The risk of recidivism is recognized in light of the fact that the defendant has committed a sexual crime against 12 to 13 years of age on two or more occasions, but the defendant has no anti-sexual attitude, the investigation before the claim also leads to a shock behavior of the defendant, the risk of recidivism against the defendant is found to be doubtful, the risk of recidivism is to be higher than 16 points in total, and the risk of recidivism is to be higher than 18 points in total as a result of the evaluation of the risk of sexual assault against the defendant (K-STRAS), the risk of recidivism is to be recognized in light of the fact that the total point of the risk of recidivism is 18 points.

Application of Statutes

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

Article 7(5) and (1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 11556, Dec. 18, 2012); Article 297 of the Criminal Act (hereinafter referred to as the "sexual intercourse with a minor under 13 years of age"); Articles 3(1) and 2(1)3 of the Punishment of Violences, etc. Act; Articles 257(1) and (1) of the Criminal Act; Article 7(5) and (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (a point of sexual intercourse with a child or juvenile force)

1. Aggravation for concurrent crimes;

Articles 37 (former part, 38 (1) 2, and 50 of the Criminal Act / [Aggravation of concurrent crimes with punishment prescribed by the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with the most serious punishment (referring to the 13 years old, minor, deceptive scheme, etc.)]

1. Order to complete programs;

Article 4 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Law No. 11572, Dec. 18, 2012) and the main sentence of Article 21(2) of the same Act

1. An order for disclosure and notification;

Article 38(1)1 and Article 38-2(1)1 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 11572, Dec. 18, 2012)

○ No. 3: Articles 49(1)1 and 50(1)1 of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Orders to attach an electronic tracking device;

Article 5(1)3 and 4, and Article 9(1)1 and (2) of the former Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (Amended by Act No. 11558, Dec. 18, 2012)

○ No. 3 Crimes: Registration of personal information under Article 5(1)3 and 4 and Article 9(1)1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders

Where the criminal facts of Articles 1 and 3 of the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11572, Dec. 18, 2012) and Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes are persons subject to registration of personal information, the defendant is obligated to submit personal information to the competent authority pursuant to Articles 5(1) and 43 of the Addenda of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11572, Dec. 18, 2012).

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

Since the facts constituting the crime of Paragraph 1 of the holding, since the date and time are too comprehensive, creating an obstacle to the exercise of the right of defense, it cannot be deemed that the facts charged are specified. The defendant does not have to have committed the victim by means of salary or carbon gas as stated in the holding, such as the facts constituting the crime of Paragraph 2 of the holding, nor did he have sexual intercourse with the victim as stated in

2. Determination as to whether the facts charged are specified

A. Article 254(4) of the Criminal Procedure Act provides that “The time, place, and method of a crime must be specified.” The purport of the Act that specifies the facts charged is to limit the scope of the trial to the court and facilitate the exercise of defense by specifying the scope of the defense of the accused. As such, the facts charged in the legislative purport of the Act demanding that the specific elements of the facts charged be provided in Article 254(4) of the Criminal Procedure Act shall be sufficient to include the specific elements of the facts charged so that it can be identified from different facts, and the term “day of a crime” as stated in the above legal provision shall be stated to the extent that it does not conflict with double prosecution or prescription. Although the date, time, place, and method of a crime is not specified specifically in the indictment, it does not go against the extent mentioned above, and where it is deemed that the time, place, and method of the crime does not interfere with the exercise of defense of the accused, it cannot be seen that the facts charged are not specified in the indictment (see, e.g., Supreme Court Decision 197Do2197).

B. However, the victim argued that the crime under paragraph (1) of the judgment of the victim was committed after the victim's mother was hospitalized in the hospital and the defendant was committed on the date of arranging the status of the director and the defendant as an apartment recorded in the above crime, and the defendant did not have sexual intercourse with the victim at the time of arranging the defendant's situation. Thus, it does not seem that the comprehensive nature of the date of the crime is likely to make it difficult for the defendant to exercise his right to defense, and it is sufficient for the court to specify the object to be tried. Accordingly, this part of the defendant's assertion is without merit.

3. The following facts are acknowledged by the court's duly adopted and investigated evidence: ① The victim consistently asked the victim whether the victim was the victim from the victim's walled ship ( March 26, 2013). (A) The victim made a statement to the effect that the victim was the victim by using shot gas around the day before the sports competition day ( June 6, 2013), ② the defendant also made a statement to the effect that the victim was the victim at the time of receiving the victim's phone from shotging, i.e., the date when the victim was the victim, ii) the victim was the victim from shotging, i.e., the date when the victim was asked from shotging the victim, ii) the victim's statement that the victim was the victim from shotging the victim, iii) the victim's statement that the victim was the victim's 1) and ii) the victim's statement that the victim was the victim's 3th of March 21, 2013.

In light of the facts stated in the judgment, the health teacher Kim Jong- Line, who prepared the above health work site, visited the victim at around March 2013 at the public health clinic. At the time of the visit, the victim was harsh in the head, and there was a small room and a hole in the buck site, and stated that the bucks and bucks prescribed disinfection, bucks, etc. to treat them. ⑤ The victim stated that it is a tool used when she wears clothes or takes them out at a high buck, and the apartment criminal facts stated in the judgment are installed at the small part of the apartment, and the two clothes are located at a higher part than the entrance, and the above upper part of the clothes are likely to have been put in clothes or used when he takes them out. In full view of the fact that the defendant was found to have inflicted an injury on the victim by using the shot and gas buck, which is dangerous goods like the criminal facts in paragraph (2).

4. Determination as to whether the defendant has sexual intercourse with the victim

In light of the following various circumstances, the statement made by the victim's investigative agency, which is the only evidence about the fact that the defendant has sexual intercourse with the victim, is sufficient to recognize its credibility, while the above argument that is contrary to the above cannot be accepted.

The victim stated consistently at the investigative agency that the victim was hospitalized in the hospital more than 000, and the defendant was first committed a crime for the first time on the date when he was hospitalized in the hospital as an apartment, and that there was a soundproof construction work of the above apartment (crime No. 1) and that there was a crime (crime No. 3 of the judgment of the court below). The victim's statement is consistent with the victim's statement concerning the work that occurred around the day of each crime.

The victim first committed a crime with the Defendant, and after completion of shower as of the date of the first commission of the crime, there was a statement to the effect that the Defendant would bring about the victim's desire, and that the crime was commenced, and the circumstances of "after completion of each crime," belong to his body.

The statement was made in order to cut off from outside, after the shower and the clothes were received, the statement was made, so that the contents of the statement are specific, birth, and difficult circumstances without direct experience.

In the written request, such as the explanation prepared by ○○ Specialized Examination Commissioner, it is difficult to see that the defendant was intentionally reported to the father who is the father who can be the most favorable social support source, and the victim's ability to judge and act in daily life is similarly similar to that of others, and the identity of the victim's statement due to recognition restriction is not considered, and the victim's statement and the interview at the time of the deliberation and evaluation are combined, and the victim's statement are logical and consistent and consistent, it is stated that the credibility is high in the victim's statement.

The victim stated to the effect that the first crime was committed in 2012 in the course of investigation. However, at the time of the aforementioned statement, the victim was hospitalized in the hospital beyond 000 and the defendant was arranged as an apartment after being hospitalized in the hospital.

The consistently stated that the Defendant was hospitalized at the hospital on July 16, 2012 after being transferred to the hospital after being in excess of the apartment toilet on July 16, 2012, and after being transferred to the hospital, until September 8, 2012. During the above hospitalization period, the Defendant arranged the company’s director as the apartment house, and the victim thought that the crime was committed. The victim thought that the crime was committed. The victim was shot up on the way on which 00 hospital was hospitalized at the time of the above crime. The victim’s statement was sent to the hospital due to other symptoms prior to and after the above hospitalization. In particular, there was a 000 disorder in the statement that the first crime was committed on April 10, 201, and that there was no error in the victim’s statement during the investigation period. Considering that the victim’s statement was made during the above 00-day period, the victim’s statement was made only to the extent of credibility during the investigation period.

○ Even after the first crime was committed, the victim lives more than one year with the defendant without notifying the external institution, but this is coming from violence and suppression atmosphere from the defendant. It seems not easy to inform the outside of the crime of the defendant, who is a pro-friendly father supporting himself and her, under the long-term birth of her mother, in view of the situation faced by the victim, such as the fact that it seems not easy for the victim to inform the outside of the crime, and that the victim seems to have no other person or place where she had resided in the same house as the defendant.

On the other hand, 00 stated that the defendant had no sexual assault against the victim. On July 26, 2013, when cleaning the apartment on July 26, 2013, there was an apartment soundproof construction work, and the defendant started to find the apartment as above, and the defendant returned to the hospital after 00 was hospitalized, and the defendant returned to the hospital again. However, the defendant supported 00 as the children of 00, 200, 200, 200, 200, 300, 300, 300, 200, 200, 30, 23:00, 23:00, 3:00, 23:00, 23:00, 3:1:00, 3:00, 23:1; 27:1; 27:1; 200, 3; 27:1; 200, 3; 3; 3; 3; 3; 27; 3; 3; 3; 3; 200000, after the defendant statement again after statement again.

○ and the Defendant’s sexual organ and the Defendant’s scam are increasing in the shape of the Scam, and even though the Defendant’s sexual organ was inserted, the victim did not make any particular reference to the Defendant’s physical characteristics, it seems that the victim did not want to have properly seen the characteristics of the Defendant in a situation where he has a sexual intercourse that he does not want to do with the Defendant, and there is sufficient possibility that even if she considered that 13 years old cannot dismiss the Defendant’s sexual organ as different physical characteristics from that of another male. In addition, it is sufficient that the victim’s sexual organ was not damaged, but it may be deemed that there was no damage to the Defendant’s sexual organ because it was not de facto inserted into the part of the victim’s sexual organ, and that the victim’s sexual organ is still more feasible than the victim’s sexual organ’s response, and that it is still possible to see that the victim’s sexual organ and the victim’s sexual organ and the victim’s sexual organ are more likely to be recovered without any damage to the victim’s sexual organ.

1. Reasons for sentencing: Imprisonment with prison labor for a period from 10 to 45 years;

2. Scope of recommendations according to the sentencing criteria;

(a) Basic crime: Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (referring to minor, deceptive scheme, etc. under thirteen years of age);

[Determination of Type] Sex Offenses, General Criteria, Sex Offenses against the Age of 13, Type 5 (Constition of Force)

【No Special Convicted Person】

[General Sentencing] Aggravations: Aggravations for criticism

[The scope of recommendations and recommendations] Basic Area, 8 years to 12 years

(b) Concurrent crimes: Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (compreting deceptive means, etc.);

[Determination of Type] Sex Offenses, General Standards, rapes (subject to 13 years of age or older), Type 2 (Authority between Juveniles) [Aggravated Punishment] : Victims vulnerable to the crime [Aggravated Punishment] : Where the crime is committed against a person who is a relative of blood or marriage, where the crime is committed against a juvenile

[The scope of recommendation and recommendation range] Aggravation, six to nine years. Concurrent crimes: Violation of the Punishment of Violences, etc. Act (a group, deadly weapons, etc.)

[Determination of Type] Violence, General Injury, Type 1 (General Injury)

[Special Aggravations] Aggravations: In the event that a person commits a crime by carrying a deadly weapon or other dangerous articles, there is no motive for the crime, victim who is vulnerable to the crime [no general person].

[The scope of recommendations and recommendations] Aggravations, six months to three years

(d) Criteria for handling multiple crimes;

[Decision of Recommendation] Six years from 17 years to 17 months ( = 12 years + 9 years + 1/2 + 3 years ¡¿ 1/3] Imprisonment with prison labor for 10 years to 17 months.

3. Determination of sentence;

The defendant has no criminal record for the same kind of crime, and the detention of the defendant entails a difficult situation to his family members. However, since the defendant used to assault the victim who is a parent-child and has sexual intercourse by force, the contents of the crime are anti-humane and the nature of the crime is very good, and even though the victim seems to have a great mental suffering due to the crime in this case, the defendant does not reflect his mistake while denying the crime until the last day. Considering the above circumstances, the defendant cannot avoid severe punishment corresponding to his responsibility, and therefore, the defendant shall be determined as the punishment like the order.

The acquittal portion

1. Summary of the facts charged

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

From July 201 to September 2012, when the Defendant’s mother 000 was hospitalized at the Guro-si Hospital, the Defendant arranged the Defendant’s moving-out from the Defendant’s home room located at △△△△△△△△△△△△△△△△△△, 3rd-ro Seoul, along with the Defendant’s Kim Jong-hee (the age of 12 at that time), who is a kind of parent-child, and followed the Defendant’s moving-out with the Defendant’s moving-out at the Defendant’s home room located at △△△△△△△△△△△△△△△△△△△△△△, her relative, and followed the Defendant’s moving-out with the Defendant’s moving-out of the Defendant’s moving-out and wearing-out and her clothes, “I wish to do so,” and “I wish to do so, with the victim’s consent, I am on the floor of the victim.

(b) Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape in Relationship);

On July 26, 2013, the Defendant raped the victim who was in sexual intercourse with the victim of △△ apartment, 08 △△△△ 07, △△△△, on a night-time basis, at the Defendant’s home room located in the said △△ apartment, and at the victim Kim Jong-hee (here, 13 years old) who was a son with whom TV was reported.

2. Determination

Whether a perpetrator committed assault and intimidation to establish the crime of rape ought to be determined based on the specific situation in which the victim was faced at the time of sexual intercourse, taking into account the following circumstances: (a) the content and degree of assault and intimidation; (b) the developments leading up to exercising force; (c) the victim’s relationship with the victim; and (d) the sexual intercourse at the time of sexual intercourse (see Supreme Court Decision 2012Do4031, Jul. 12, 2012, etc.). However, according to records, the victim’s act of assault frequently from the Defendant at ordinary times led the victim to the victim’s speech at the time of sexual intercourse as stated in the above facts charged; (d) the victim did not assault the victim at the time of the above act of sexual intercourse; and (e) the victim stated to the effect that the victim was out of his clothes; and (e) the victim’s act of assault and intimidation did not have any other evidence to deem that there was sexual intercourse between the victim and the victim at the time of his sexual intercourse.

Therefore, the judgment of innocence should be rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act because there is no proof of a crime in this part of the facts charged. However, in a case where the court found the defendant guilty of a violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (competence of minors, deceptive schemes, etc.) and a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (competence of deceptive schemes, etc.), the court ordered

v. n.

Public Prosecution Rejection Parts

1. Summary of the facts charged

The Defendant: (a) around April 2013 and around July 2013, 2013, at the Defendant’s home room located in Yangcheon-gu Seoul, Yangcheon-gu, Seoul, △△△△△△△△△△△△△△△△△, located in the Defendant’s home room located in Yangcheon-gu, Yangcheon-gu, Seoul, Seoul, △△△△△△△△△△△△△△△△△△△△△7; (b) the victim Kim Jong-hee (here, 13 years old) who was reporting TV, committed an indecent act against the victim, by gathering his hand into the victim’s mother on his own, and inserting him into the victim’s chest.

2. Determination

A. Article 254(4) of the Criminal Procedure Act provides that “The description of facts charged shall be made by specifying the time, time, place, and method of a crime.” The purport of the provision is to ensure the efficiency and speed of the trial by prescribing the subject matter of the trial, and to facilitate the exercise of the defendant’s right to defense by specifying the scope of defense. Therefore, with respect to the date and time of the trial, the prosecutor shall take into account the following three specific elements to the extent that it is possible to distinguish between the two factors, such as whether the time and time conflict with those of double litigation or prescription, whether the place falls under territorial jurisdiction, and whether the method falls under the constituent elements of the crime. In addition, as in the case of indecent act by compulsion, it is a principle that the facts charged should be stated so that it can be distinguished from other facts by specifying the time, place, and method of each act. However, it does not affect the effectiveness of a prosecution if some of the aforementioned specified elements are somewhat ambiguous, and it does not affect the victim’s right to defense other than the victim’s basic evidence.

B. In light of the above legal principles, health stand back to the instant case, and the record, without memory as to when the victim committed an indecent act like the facts charged, and the frequency of such indecent act is stated several times, and the prosecutor, if the date and frequency are not specified, shall set three times the frequency of such indecent act. After the victim’s mother was hospitalized at the time of such indecent act, it appears that the period during which the defendant was living together with the director and the victim in the victim’s house divided into three times. In light of the basic purport of the facts charged as seen earlier, legal principles and the contents and circumstances stated in this part of the facts charged, it cannot be deemed that the facts charged alone with the above contents of the facts charged are sufficient to limit the subject matter of the trial against the instant court or to limit the defense of the defendant.

C. Therefore, since each of the facts charged is not specified and thus the prosecution procedure becomes invalid in violation of the provisions of law, each indictment is dismissed in accordance with Article 327 subparagraph 2 of the Criminal Procedure Act.

Judges of the presiding judge 000

Judges 000

Judges 000