(영문) 서울고등법원 2017.4.21.선고 2016노3140 판결

Of the judgment of the court below, the part against Defendant A and the part against Defendant B, 2016Kahap50, 2016Kahap79, 2016, 2016Kahap79, 200, '2016Kahap79', are reversed, respectively. Defendant A shall be punished by imprisonment for 4 years and by imprisonment for 8 years, '2016Gahap79, 2016, '201

Defendant A’s completion of the child abuse treatment program for 200 hours, and completion of the sexual assault treatment program for 80 hours against Defendant B. Of the facts charged in the instant case against Defendant B, each of the child welfare violations (child abuse) around April 2013 and around July 2013 shall be acquitted.

The summary of the acquittal part in the judgment against Defendant B is publicly announced.

Of the judgment of the court below, the appeal by the defendant B and the prosecutor as to the part concerning the defendant B's appeal as to the part concerning the defendant B's case Nos. 2016, 50's judgment as to the defendant B and the attachment order claim as to the defendant B is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant A

1) Considering the fact that there is a intellectual impairment in violation of the rules of evidence and lack of care and concentration compared to the general public, procedural rights, such as the attendance of a person in trust with the public prosecutor in the process of interrogation of the suspect, and the fact that an excessive long-term interrogation is conducted, each protocol of examination of the suspect prepared by the public prosecutor against the accused cannot be admissible as evidence because it is not illegally collected evidence or the arbitracy of the statement is not recognized, but the court below

2) misunderstanding of facts or misapprehension of legal principles

A) The fact of murder

In light of Defendant A’s intellectual ability or circumstances at the time of committing the crime, the Defendant was only the victim’s intentional assault or bodily injury, and did not have the intent to commit murder, but the lower court erred by misapprehending the legal doctrine as to the intentional murder, thereby finding the Defendant guilty of this part of the facts charged.

B) Child abuse point

Defendant A’s scam at one time with the victim G’s hand does not constitute physical abuse as prescribed in the Child Welfare Act. As to each act indicated in this part of the facts charged, the Defendant did not have any intent to abuse the victim. Even if it constitutes the elements of the crime of child abuse, even if it does not constitute the elements of the crime of child abuse, the lower court erred by misapprehending the legal doctrine on child abuse or by misapprehending the legal doctrine on child abuse, thereby finding the Defendant guilty of this part of the facts charged.

3) Unreasonable sentencing

The sentence of imprisonment with prison labor for Defendant A (four years of imprisonment) of the lower court is too unreasonable.

B. The sentence of imprisonment with prison labor and imprisonment with prison labor for eight years and six months for the defendant and the person against whom the attachment order was requested (hereinafter referred to as the "defendant") by the court below and the person against whom the attachment order was requested (hereinafter referred to as the "defendant") is too unreasonable.

1) As to the defendant on unreasonable sentencing (as to the defendant)

Each sentence of the lower court against the Defendants is too uncomfortable and unfair.

2) Despite the risk of recommitting a sexual crime against Defendant B, the lower court’s dismissal of the prosecutor’s request for an attachment order of an electronic tracking device is unreasonable.

2. Determination as to Defendant A

A. Ex officio determination

Of the facts charged in this case, the court below examined ex officio the admissibility of each protocol of examination of the defendant's suspect prepared by the prosecutor, and in particular whether the defendant's identity is recognized, among the evidence presented by the court below which found the defendant A guilty.

1) Relevant legal principles

The Criminal Procedure Act adopts the substantial direct cross-examination principle and the hearsay rule that the formation of a conviction against the substance of a case must be conducted through the examination of evidence, which is guaranteed in the presence of a judge, in order to realize the lawful procedure required by the Constitution. Therefore, the court shall ensure that the substantial direct cross-examination principle and the hearsay rule can function faithfully as the principle of principle and substantial control in the course of criminal proceedings and the trial process, and the exception thereof shall be limited to the minimum necessary extent prescribed by the Criminal Procedure Act so as not to infringe upon the right to a fair public trial based on the principle of direct trial and the right to receive presumption of innocence and the right to receive presumption of innocence, or to the extent that it does not lead to the result of de facto infringement or punishment (see, e.g., Supreme Court en banc Decision 2004Do4044, Nov. 12, 2004; Constitutional Court en banc Decision 2004Hun-Ba

Accordingly, Article 312 (1) of the Criminal Procedure Act, which provides an exception to the hearsay rule, stipulates that "a protocol in which a prosecutor recorded a statement of a criminal suspect who was a criminal defendant, is prepared in accordance with due process and method, and contains the same contents as the criminal defendant stated, may be admitted as evidence only when it is proved that the statement recorded in the protocol was made in a preparatory hearing or a trial in a particularly reliable state." It limits the scope of recognition of admissibility of evidence by clearly stating that "it is admitted

In this context, the term " particularly reliable state" means a state in which there is little room for false intervention in the preparation of the content, protocol, or document at the time of the preparation of the protocol, and there is a specific and external circumstance that ensures the credibility or voluntariness of the content of the statement (see, e.g., Supreme Court Decisions 2006Do3922, Sept. 28, 2006; 2012Do2937, Jul. 26, 2012). In any case, whether a suspect's statement may be deemed to have been made in an extraordinary state is bound to be determined individually by taking into account the external circumstances at the time of the statement, depending on specific matters.

Therefore, even if the "specific condition" of Article 312 (1) of the Criminal Procedure Act is acknowledged, the specific external circumstances at the time of the preparation of the suspect interrogation protocol are the main factors to determine whether the prosecutor has participated in the interrogation protocol, whether the presence of the counsel has been excluded without any justifiable reason, whether the presence of the person with trust related to the suspect who requires assistance, such as the disabled, is permitted, whether the investigation has been conducted in excess of the reasonable investigation period in light

In light of the above legal principles, the lower court’s determination that the Defendant’s statement made by the Defendant was admissible as evidence for conviction, and the lower court did not err by misapprehending the legal principles as to the admissibility of evidence. In so doing, the lower court did not err by misapprehending the legal principles as to the admissibility of evidence, as otherwise alleged in the ground of appeal. In so doing, the lower court did not err by misapprehending the legal principles as to the admissibility of evidence, thereby adversely affecting the conclusion of the judgment, thereby adversely affecting the conclusion of the judgment, as otherwise alleged in the ground of appeal.

2) Specific determination

A) According to the records of this case, the following circumstances are recognized.

(1) As a result of the psychological evaluation conducted by the lower court on March 30, 2016, the Defendant was found to have a 'cadastral disability indicating a serious defect in intelligence and adaptation behavior' with a very low point of 54 points. Accordingly, the Defendant was found to have a 'cadastral disability indicating a significant defect in the overall intelligence index.' Accordingly, the Defendant was found to have a low recognition function, such as an abstract concept formation ability, drilling ability, and logical thinking ability, and it is possible to understand and express language necessary for ordinary communication, but there is a lack of logical and abstract thinking. (2) The psychological evaluation conducted on March 30, 2016 with the prosecution of the Defendant A, which was conducted on March 30, 2016, the Defendant had an intelligence index of 53 points. The above report is a lack of basic desire and knowledge to the Defendant, which makes it difficult to find the Defendant difficult to respond to the issue of self-defense, and it is difficult to find the situation of self-defense and its lack of ability to respond with it.

(3) Article 244-5 of the Criminal Procedure Act provides that a public prosecutor or judicial police officer shall examine a suspect.

In doing so, if the suspect lacks the ability to discern right from wrong or make and communicate a decision due to a physical or mental disability, the suspect may be allowed to sit in company with the suspect either ex officio or upon the request of the suspect or legal representative, and Article 26 (6) of the Act on the Prohibition of Discrimination against Persons with Disabilities and the Remedy for Infringement of Rights, Etc. provides that "The judicial agency shall confirm whether a person with disabilities has difficulty in communication or expression of opinion to the person with disabilities, and inform the person with disabilities of the fact that he/she may receive assistance in criminal justice procedures and the details of such assistance. In such cases, the judicial agency shall not refuse the request of the person with disabilities to receive assistance in criminal justice procedures without justifiable grounds, and shall prepare necessary measures."

Despite the above legal provisions, the defendant A, who appears to have weak ability to distinguish things or make decisions and difficulties in communication or communication due to mental disorder in the course of the prosecutor's investigation, did not take measures to help the defendant A with psychological stability and smooth communication, such as appointment of a public defender or presence of a person in a trust relationship.

(4) The fact-finding results on the director of the National Mental Center held in the trial reveals the answer of the psychiatrist that Defendant A may take part in the investigation by maintaining caution during the period from 30 minutes to 1 hour. From March 24, 2016 to April 6, 2016, the Defendant was examined five times by the prosecutor’s office from March 24, 2016. Among them, the second investigation was conducted for total nine hours and 35 minutes (6 hours and 20 minutes if it is excluded from food death), the fourth investigation was conducted for total nine hours and 35 minutes (6 hours and 15 minutes if it is excluded from food death), and the fifth investigation was conducted for total nine hours and 15 minutes (6 hours and 55 minutes if it is excluded from food death hours), and the first, second and fifth investigation was conducted on each day.

(5) Although Defendant A was the suspect of the crime related to the victim G, Defendant A was the victim's status in the sexual assault case of Defendant B, but the victim also appears to have been subject to the victim's investigation without the attorney's assistance or trust relation with the victim. According to the record of the statement at the time of the prosecutor's investigation as the victim of sexual assault committed on April 15, 2016, according to the victim's statement document at the time of the prosecutor's investigation, Defendant A's statement that 'I am if I am unable to speak, I am am am, I am I am I am I am I am I am I am I am I am I am I am.' due to the investigation conducted by the investigative agency continued

(6) The results of fact-finding on the Director of the National Mental Center held in the trial, and the right to refuse to make a statement; or

With respect to the notification at the time of interrogation of a suspect by the prosecution, it is anticipated that a single person (such as ear, a single person, a statement, an individual, etc.) was included in the majority, and if an explanation was given by using a well-known word, it would be possible to understand it, but even if so, a medical specialist’s answer was presented that it would be difficult to logically understand and judge how to affect the situation. (B) In full view of the above circumstances, it is difficult to deem that there was a specific external circumstance to guarantee the credibility or arbitability of the statement to the extent that it would be the same as when the prosecutor made a statement before the judge at the time of interrogation of the suspect by the defendant, and thus, it is difficult to deem that there was a specific external circumstance to guarantee the credibility or arbitability of the statement in the suspect interrogation protocol prepared by the defendant A by the prosecutor at the time of interrogation of the suspect. Therefore, it cannot be deemed that the admissibility of evidence cannot be recognized, but the court below erred in adopting it as evidence on the premise that it has admissibility of evidence.

3) Sub-committee

As examined below, even if each protocol of examination of the suspect prepared by the prosecutor against Defendant A is excluded, even if all facts charged can be recognized through other evidence duly adopted and examined by the court below and the trial court, the part against Defendant A among the judgment below which is based on the conviction judgment cannot be maintained. However, even if the part against Defendant A is reversed among the judgment below, the part against Defendant A is reversed, it is still included in the scope of the judgment of this court, and thus, this is examined.

C. As to the assertion of mistake or misapprehension of legal principles

1) The point of murder

A) The judgment of the court below

피고인 A는 원심에서도 이 부분 항소이유와 같은 취지의 주장을 하였는데, 원심은 조사한 증거에 의하여 인정되는 다음과 같은 사정들, 즉 ① 피고인은 형부인 상피고인 B의 강요로 원치 않는 성관계를 맺어 피해자 G를 출산했고, 피해자가 커가면서 상피고인 B을 닮아감에 따라 피해자를 미워하는 마음이 커지던 중, 사건 당일 자신에게 짜증을 부리는 피해자를 보고 순간적인 화를 참지 못하고 살인의 범행을 저지른 점, ② 피고인은 거실에 엎드려 누워 있던 피해자의 허리를 밟은 다음, 피해자의 왼손을 잡고 작은방으로 끌고 간 뒤 피해자의 배를 오른발로 세게 2회 걷어찼고, 이에 피해자는 옆으로 누운 채 구토를 하면서 얼굴이 하얗게 변했으나, 피고인은 이를 알고도 계속하여 천장을 향해 누워 있던 피해자의 배를 세 차례나 힘껏 밟은 점, ③ 피고인은 무릎이 허리보다 약간 낮은 정도가 될 높이까지 발을 들어 올려 발에 힘을 많이 주고 강하게 피해자의 배를 밟았고, 피해자가 소리를 지르며 뒹굴다가 가만히 있자 다시 같은 방법으로 두 차례 더 발로 배를 밟았는데, 수사기관에서 '내 성격이 화가 나면 잘 참지를 못하고 분이 풀릴 때까지 화를 내야 하는 성격이라 그렇게 한 것이다.'라고 진술한 점, ④ 당시 피해자는 키 90cm, 몸무게 13.5kg의 생후 27개월 아기로 스스로를 보호할 능력이 전혀 없는 상태였던 점, ⑤ 피고인의 지적능력이 다소 부족한 점을 감안하더라도, 주요한 신체기관이 모여 있는 아기의 복부를, 흉기나 다름없는 어른의 발로 여러 차례 세게 가격할 경우 치명적인 결과가 발생할 수 있다는 것은 충분히 예상할 수 있었을 것으로 보이는 점, 6 피해자는 피고인의 폭행으로 췌장이 절단되고, 장간막이 파열되었으며, 다량의 복강 출혈이 발생하는 심각한 손상을 입었고, 폭행 후 불과 1시간여 만에 복부손상으로 사망한 점 등을 종합하면, 피고인의 지적장애와 산후 우울증 등을 감안하더라도 피고인이 적어도 미필적으로나마 살인의 고의를 갖고 여러 차례 피해자의 배를 발로 걷어차고 밟았다는 이 부분 공소사실을 충분히 인정할 수 있다고 보아, 피고인 A의 위 주장을 배척하였다.

B) Determination of the immediate deliberation

(1) The criminal intent of murder does not necessarily require the intention of murdering or planned. It is sufficient to recognize or anticipate the possibility or risk of causing the death of another person due to one’s own act, and its awareness or prediction is not only conclusive but also it is so-called willful negligence. In a case where the defendant asserts that there was only no criminal intent of murder or assault at the time of committing the crime, and that there was only the criminal intent of murder or assault, the issue of whether the defendant was guilty of murder at the time of committing the crime shall be determined by taking into account the objective circumstances before and after committing the crime, such as the background leading up to the crime, motive for committing the crime, existence of the prepared deadly weapon, type, method of attack, part and repetition of the attack, and possibility of causing the death (see, e.g., Supreme Court Decisions 2008Do9867, Feb. 26, 2009; 2006Do7346, Apr. 14, 2006).

(2) On the premise of such legal principles, even if 3 points are excluded based on Defendant A’s statement written in the protocol of interrogation prepared by the prosecutor without admissibility as seen earlier, as seen in the judgment of the court below in the above paragraph (a) above, the above paragraph (1), (2), (4), (5), and (6) The background and motive of the crime committed by the Defendant inferred through each point, (2), (4), (5), (4), and (5) the possibility of the occurrence of death, etc.

In full view of various circumstances, the judgment of the court below which found the Defendant guilty of this part of the facts charged is just in its conclusion, and there is no error of law by misunderstanding facts or misunderstanding of legal principles as to murder, thereby affecting the conclusion of the judgment.

(3) Defendant A’s ground of appeal on this part is without merit.

2) The point of child abuse

A) The judgment of the court below

Defendant A also argued to the same purport as the reasons for appeal in the lower court. On October 20, 2014, the lower court rejected the Defendant’s assertion that ① the Defendant continued to put the victim’s clothes of Victim G on October 20, 2014; ② the Defendant’s act did not constitute an independent defense against each of the above Defendant’s acts, ② the Defendant’s act did not constitute a legitimate defense against the Defendant at the time of committing each of the above acts, ② the Defendant’s act did not constitute a separate defense against the Defendant’s 17th day on March 15, 2016.

B) Determination of the immediate deliberation

(1) On March 15, 2016, Defendant A knew that the victim G was drinking the fluence of the fluorous baby on one occasion on the floor of the victim, and it seems that it would not reach up to the point of harm to the body of the victim. However, it constitutes a physical abuse under Article 17(1)3 of the Child Welfare Act, which is detrimental to the physical health and development of the body of the victim.

(2) The following circumstances acknowledged by the court below and the court below's evidence (except each interrogation protocol against the defendant A, as mentioned above), that is, the defendant gave birth to the victim G by giving birth to a pregnant woman who is not original due to sexual assault by the above defendant B. The defendant was unable to reach a usual victim on the grounds that the majority with the above defendant B was similar to that of the above defendant B, and the defendant in the court of the trial "at the time when the victim was born 10 months after the birth, the defendant was able to find that the victim was aware of the fact that the victim was flick and flicked, so that the victim was sufficiently flick and flicked, and that the victim died, "the fact that there was an intention against the defendant as the child victim at the time of the crime of this part," and "the victim was the time when the victim died."

(3) Considering the Defendant A’s attitude of committing the act, the motive and background of each of the crimes in this part, the degree and degree of the victim’s age at the time, etc., it cannot be deemed that Defendant A’s act with respect to the development of the victim’s decoration does not violate the social rules and is justifiable.

(4) Defendant A’s allegation of this part of the grounds for appeal is without merit.

3. Judgment as to Defendant B

A. We examine ex officio determination (as indicated in the judgment of the court below, '2016Kahap50' No. 2-A, '2016Kahap50' as indicated in the judgment of the court below) as to Defendant B's violation of the Child Welfare Act (Ab) between April 2013 and July 2013 among the facts charged in the case.

1) Summary of this part of the facts charged

A. Defendant B, around April 2013, at the Defendant’s house of Kimpo-si, Kimpo-si 102 Dong 104, Defendant B, while under the influence of alcohol, did not study the victim (six years of age at the time) one time on the ground that he was not under the influence of alcohol.

B. Around July 2013, Defendant B left the victim’s head one time at the victim’s house as described in the foregoing paragraph A, on the ground that Defendant B did not answer time to the victim I while referring to the victim I.

2) Determination

The lower court applied Article 17 subparag. 3 of the current Child Welfare Act to each of the above facts charged under Article 17 subparag. 1, but the current Child Welfare Act was partially amended by Act No. 12361, Jan. 28, 2014 and enforced from September 29, 2014, and thus, the current Child Welfare Act cannot be applied to each of the above facts charged prior to the enforcement of the current Child Welfare Act, and Article 17 subparag. 3 (amended by Act No. 12361, Jan. 28, 2014; hereinafter the same shall apply) of the former Child Welfare Act shall be applied.

Article 17 subparag. 3 of the former Child Welfare Act provides that "an act of abuse that causes bodily harm to a child" as one of prohibited acts, and "an act of bodily harm" refers to an act of causing a negative physical harm to a child, even if it does not reach the degree of "a physical harm" caused by the exercise of tangible force against a child, even if it does not reach the degree of "a physical harm" (see Supreme Court Decision 2015Do6781, May 12, 2016).

Based on these legal principles, according to the evidence duly adopted and investigated by the court below, it is difficult to conclude that Defendant B committed physical abuse as prescribed in Article 17 subparag. 3 of the former Child Welfare Act against the victim, and there is no other evidence to acknowledge this differently.

3) Sub-committee

As above, in regard to the guilty portion of "2016Kahap79" as stated in the judgment of the court below, which has a concurrent relationship with the non-guilty portion under the former part of Article 37 of the Criminal Act, the sentence shall be determined again. As such, among the judgment of the court below, the part of "2016Kahap50" No. 2-A and the part of "2016Kahap79" as stated in the judgment of the court below as to the defendant B cannot be maintained.

B. As to the assertion of unfair sentencing by Defendant B and the prosecutor (as to the Defendant’s case of the lower judgment, “2016Gohap50” No. 2-c. d. 50)

In a case where there is no change in the conditions of sentencing compared with the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect it (see, e.g., Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

Based on the above legal principles, there is no change in the conditions of sentencing compared with the original court because new sentencing data was not submitted in the trial, and considering the factors of sentencing revealed in the course of the pleadings in this case, it is not deemed that the sentencing of Defendant B is too heavy or too unfasible, thereby exceeding the reasonable scope of discretion.

Defendant B and the prosecutor’s respective arguments on unfair sentencing are without merit. As to the prosecutor’s rejection of the prosecutor’s request for an attachment order (the part regarding the claim for attachment order

In full view of the circumstances indicated in its reasoning acknowledged by the record, the lower court dismissed the prosecutor’s request to attach an attachment order against the Defendant B, on the ground that it is difficult to readily conclude that the Defendant B is

Examining the reasoning of the lower judgment in comparison with relevant legal principles and records, the lower court’s dismissal of the request for the attachment order of this case is justifiable.

This part of the appeal by the prosecutor is without merit.

4. Conclusion

Of the judgment of the court below, the part on Defendant A and the part on Defendant B 2-A-2 of the '2016 Gohap50' decision on Defendant B's case No. 2-2 of the '2016 Gohap79' decision, and the part on the '2016 Gohap79' decision, there are grounds for ex officio reversal. Thus, the above part of the judgment of the court below is reversed under Article 364(2) of the Criminal Procedure Act without examining the Defendants

Of the judgment of the court below, the prosecutor's appeal as to the part concerning the defendant B's appeal as to the part concerning the defendant B's claim for attachment order against the defendant B and the part concerning the defendant B's appeal as to the part concerning the defendant B's claim for attachment order against the defendant B is without merit. Thus, all of the appeals are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act and Article 35 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders [the part against the defendant A and the part concerning the defendant B's judgment as to the defendant's case 2016Da50-Ga 2-Ga and 2-Ga of the judgment of the defendant's case as to the defendant B]

This part of the facts constituting the crime recognized by this court is the same as the corresponding column of the judgment of the court below, except for deletion of the 6th through 7th of the judgment of the court below, and therefore, it is accepted by Article 369 of the Criminal Procedure Act.

Summary of Evidence

The summary of the evidence admitted by this court is as shown in the corresponding column of the judgment of the court in addition to the removal of the defendant A's partial statement on the 8th day of the judgment of the court below on the 19th day of the judgment of the court below, and the removal of the 9th day through the 13th day of the judgment of the court below on the 19th day of the judgment of the court below on the 8th day of the judgment of the court below.

Application of Statutes

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

(a) Defendant A: Article 250(1) of the Criminal Act (the occupation of homicide and the choice of limited imprisonment), Article 71(1)2 and Article 17 subparag. 3 of the Child Welfare Act (the occupation of physical abuse against a child and the choice of imprisonment);

B. Defendant B: Article 7(1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (amended by Act No. 10258, Apr. 15, 2010; hereinafter referred to as the “Special Act on the Punishment, etc. of Sexual Crimes”); Article 297 of the Criminal Act; Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010); Article 5(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 10259, Apr. 15, 2010; hereinafter referred to as the “Special Act on the Punishment, etc. of Sexual Crimes”); Article 5(1) of the former Criminal Act on the Punishment, etc. of Sexual Crimes (a) of the former Act on the Punishment, etc. of Sexual Crimes

1. Statutory mitigation;

Defendant A: Articles 10(2) and 55(1)3 of the Criminal Act (person with mental disability)

1. Handling concurrent crimes;

Defendant B: The crimes of the latter part of Articles 37 and 39(1) (the first head of the judgment that became final and conclusive) of the Criminal Act and the first head of the judgment that became final and conclusive

1. Aggravation for concurrent crimes;

(a) Defendant A: the former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act (within the scope of adding up the long-term punishments of the crimes of murder as stated in the most severe judgment)

(b) Defendant B: Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with the most severe punishment (aggravating concurrent crimes with the punishment prescribed in relation of relatives) among the crimes referred to in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act;

1. Order to complete programs;

Defendant A: Article 8(1) and (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes: Defendant B: The main sentence of Article 16(2) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012); Article 16(2) of the Addenda to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Law No. 10567, Apr. 7, 201)

1. Exemption from an order for disclosure and notification;

Defendant B: In full view of the Defendant’s age and occupation, relationship between the Defendant and the victim, type and motive of the crime, the process and consequence of the crime, the existence of the same kind of power, the risk of recidivism, the degree of disadvantage and expected side effects of the Defendant’s entry due to disclosure and notification order, and the comparative balancing between the expected side effects of the sexual crime subject to registration and the expected profits, etc., the Defendant’s personal information shall not be disclosed and notified in accordance with the following applicable laws. As such, it is determined that there are special circumstances that may not be disclosed and notified of the Defendant’s personal information.

Article 2 of the former Addenda on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Law No. 10258, Apr. 15, 2010), the proviso to Article 37(1) and the proviso to Article 41(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 11162, Jan. 17, 2012)

Article 2 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Law No. 11162 and January 17, 2012), the proviso to Article 37(1) and the proviso to Article 41(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012)

Reasons for sentencing

1. The scope of punishment by law;

(a) Defendant A: Imprisonment with prison labor for two years and six months to twenty years;

B. Defendant B: 7 years to 45 years of imprisonment with prison labor for each crime of “2016 Gohap79.”

2. Scope of recommendations according to the sentencing criteria;

(a) Defendant A: Imprisonment with prison labor of four to six years;

1) Basic crime: homicide / homicide / Other motive for consideration of murder (Type 1)

【Specially Convicted Persons] Mental Health and Welfare (Discretionary Elements), Victims (Aggravated Factors) who are vulnerable to crimes (Aggravated Factors) basic area, 4 years to 6 years of imprisonment

2) Concurrent Crimes: Each of the crimes of violation of the Child Welfare Act (hereinafter referred to as "child abuse") / [type 1 (general organic abuse] (a person with a special penalty] mitigation area / [a person with a mental disability] mitigation area / [a recommendation area, recommendation type] mitigation area, one month to eight months of imprisonment.

3) Criteria for handling multiple crimes: Imprisonment for 4 years to 6 years (=6 years +4 months +2 months ( Augustx1/2) +2 months ( Augustx1/3, less than month);

B. Defendant B: Each crime of “2016 Gohap79” is a crime of fraud of the first head on which the judgment became final and conclusive and a crime of latter concurrent crimes of Article 37 of the Criminal Act. Therefore, the sentencing guidelines do not apply.

3. Determination of sentence;

(a) Defendant A: Four years of imprisonment;

B. Defendant B: (a) 8 years of imprisonment with prison labor for each crime of “2016 Gohap79”. (b) The reasons for sentencing are as follows: (c) Defendant A committed physical abuse on the grounds that he/she sexual assaulted to himself/herself and gave similar treatment to Defendant B, etc.; (d) Defendant A committed a cruel murder in which he/she died due to the Defendant’s appearance over several occasions during the 27-month period; and (e) he/she committed an brupting act of death due to dystrokeing of the victim’s clothes that are only 27 months after his/her birth; and (e) he/she committed an brupting act of death due to maring cutting, cutting off, and livering marbling. Even if some of the motive or circumstances leading up to the above crime are considered, considering the importance of the crime of infringing on the life of a child that he/she has produced, it is inevitable to punish

However, Defendant A is an initial offender who has no criminal record other than each of the instant crimes. The Defendant, other than disputing the intention of murder or the illegality of child abuse, recognized all objective facts of the crime, and considered the harsh consequences of the crime.

The Defendant is in the position of the victim with respect to the crime of sexual assault committed by the Defendant B, and the mental impulse and childbirth therefrom seems to have affected the conclusion of each of the crimes of this case. Furthermore, due to intellectual disability, depression, etc., the Defendant was in a state of lacking the ability to discern things or make decisions at the time of each of the crimes of this case.

2) Defendant B raped Defendant B, who is merely 19 years of age on one’s own wife, over two occasions, and tried to care for his own children, once again. Defendant B’s family has broken down due to Defendant B’s fatal act, and subsequently, was unable to live independently due to intellectual disorder, and Defendant B was raising three children between Defendant B and Defendant B, regardless of his own will, regardless of whether he was aware of such act. While examining the same life, Defendant B suffered from depression with severe mental pain, and this led to a harsh result of killing Defendant B’s death. Defendant B expressed his intent to punish Defendant B. However, Defendant B’s entire criminal act, in depth against his own head, and is subject to criminal punishment, and there is no record of criminal punishment due to a sexual crime under the latter part of Article 37 of the Criminal Act with respect to a sexual crime, the first judgment of Defendant B and the judgment of Defendant B should be considered as a concurrent crime under the latter part of the Criminal Act.

3) In addition, the Defendants’ age, character and conduct, environment, motive and background of the crime, means and consequence of the crime, various circumstances revealed in the instant pleadings, such as circumstances after the crime, and the scope of recommended sentences according to the sentencing guidelines set by the Supreme Court Sentencing Committee, etc. shall be determined as ordered by the Criminal Procedure Act.

Registration of Personal Information

In a case where a judgment of conviction becomes final and conclusive on each of the facts stated in the judgment "2016Gahap79", Defendant B is a person subject to registration of personal information pursuant to Article 2 of the former Addenda to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Act No. 10258, Apr. 15, 2010) and Article 32 (1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012). Thus, Defendant B is obligated to submit personal information to the competent authority pursuant to Article 5 (1) of the former Addenda to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Act No. 1156, Dec. 18, 2012); Article 43 of the Act on Special Cases concerning the

Of the facts charged in the instant case against Defendant B, the summary of each violation of the Child Welfare Act (child abuse) around April 2013 and around July 2013 is as described in the above 3-A.1). As seen in the above 3-A.2), since it constitutes a case where there is no proof of a crime as stated in the above 3-A.2), the acquittal is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act and the summary of the judgment is publicly announced pursuant to Article 58(2) of the Criminal Act.

Judges

The presiding judge, judge and assistant judge

Judge Maximum Order

Judges Full-time Leave

Note tin

1) The defense counsel of the defendant A prepared a written opinion of the defense counsel submitted on February 22, 2017, in the prosecutor’s protocol of interrogation of the defendant as to the defendant.

The grounds for appeal asserted that the appeal cannot be accepted, which was filed after the expiration of the period for submitting the grounds for appeal.

It is judged ex officio that it does not fall under any of the reasons.

2) The defense counsel of Defendant A is either illegally collected evidence or voluntary statement of each protocol of interrogation prepared by the prosecutor in the grounds of appeal.

Although this Court asserted that there is no admissibility of evidence, it is recognized ex officio by the prosecutor that the special condition at the time of interrogation is recognized.

As long as the admissibility of the above evidence is denied on the ground that it is alleged that the above argument in the grounds of appeal is not separately determined.

v. n.

3) According to the dismissal of the appeal in this part, as to the crime No. 2-C, 4, and 5 of the judgment of the court below, "2016Dahap50 decided on the defendant B" in the disposition of the court below

A person shall be punished by imprisonment with prison labor for up to six months. An order for the completion of a child abuse treatment program for up to 200 hours shall be issued to Defendant B shall be maintained as is.

A. An order to complete a child abuse treatment program is based on Article 8 of the Act on Special Cases Concerning the Punishment, etc. of Child Abuse Crimes.

The rate was enacted by Act No. 12341 on January 28, 2014 and came into force on September 29, 2014; the order to complete the program was issued after the enforcement date thereof.

The judgment of the court below is accompanied by the conviction of the 2-C, d, e. the 2016 Gohap50's ruling of the court below.

심급 사건

-인천지방법원부천지원 2016.9.23.선고 2016고합50

서울고등법원 2017.4.21.선고 2016노3140

-대법원 2017.7.11.선고 2017도6914

참조조문

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