2010No553 Violation of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof (Special Robbery, Rape, etc.), violations of the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (Special Rape), special robbery, attempted special robbery, violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny), quasi-rape, quasi-rape,

2010 No. 28 (Joint Attachment Orders)

A

Defendant

Kim Jong-chul

Attorney CH(Korean Charter)

Seoul Central District Court Decision 2009Gohap1249, 2010Gohap26 (Joint) and 2009 Jeongo8 (Joint) Decided February 5, 2010

April 22, 2010

Of the judgment below, the part of the defendant's case against the defendant is reversed.

Imprisonment with prison labor for each of the crimes of Article 2(a) of the holding of the defendant, and for each of the crimes of Articles 1 and 2-b through 2-b of the holding of the defendant, 17 years.

Access information on the accused shall be made available for inspection for five years.

The seized ODG trademark hats (No. 30 of the list of seizure), Mask 1 (No. 31 of the list of seizure), tape 1 (No. 34 of the list of seizure), two electric wires (No. 35 and 40 of the list of seizure), one kitchen-car (No. 39 of the list of seizure), one cap (No. 41 of the list of seizure), one throw-on (No. 42 of the list of seizure), and one throw-on (No. 42 of the list of seizure) shall be confiscated.

Of the facts charged in the instant case, the larceny is acquitted.

The appeal regarding the attachment order case of a person whose attachment order is requested shall be dismissed.

1. The defendant case;

A. Summary of grounds for appeal

The punishment of imprisonment with prison labor for a total of 25 years (five years of imprisonment with prison labor for each of the crimes of No. 2 A at the time of sale, and twenty years of imprisonment with prison labor for each of the crimes of No. 1 and No. 2-b of the holding) sentenced by the court below to the defendant and the person subject to the request for attachment order (hereinafter referred to as the "defendants").

B. Determination

(1) Ex officio determination (as to the larceny of the facts charged in the instant case)

The summary of larceny among the facts charged in the instant case is as follows: "Around September 23, 2004, at the convenience store of "V in Seocho-gu Seoul Metropolitan Government U", the Defendant collected the credit card of one bank owned by R, and then withdrawn KRW 300,000 in cash by entering the password known by R, and continuously withdrawing KRW 70,000 in cash using the said R-owned Samsung Card. Accordingly, the Defendant stolen the cash of KRW 1 million in total."

However, on November 5, 2007, the court below held that although the defendant was sentenced to imprisonment with prison labor for habitual larceny on the part of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes in the Busan District Court, on the part of the above facts charged, most of the previous criminal convictions, including the previous criminal convictions, were stolen by means of taking away another's goods, which were incurred in the thief from the thief, and that this part of the crime was committed by taking advantage of credit cards, etc. after taking advantage of credit cards, and withdrawal of money from the stief from the stief by taking advantage of credit cards, etc., the type of the crime was entirely different, and that this part of the crime was committed only once by withdrawing money from the stief at that time, and thus, it was difficult to conclude that the crime was caused by the Defendant's deception, and thus res judicata effect of the above final judgment does not extend to this part of the crime.

However, according to the evidence duly adopted and examined by the court below, the defendant was sentenced to one year and two months of imprisonment for attempted larceny at the Seoul District Court on March 8, 2001; on January 4, 2005, the Daejeon District Court sentenced to one year and six months of imprisonment for larceny at the Seoul Northern District Court on February 16, 2006; on November 5, 2007, the defendant was sentenced to one year and six months of imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes at the Busan District Court on November 5, 2007; on September 26, 2007, the above judgment became final and conclusive; on September 26, 2007, the criminal facts of the above final judgment were found to have been stolen in a way other than the above final judgment or the fact that the defendant was convicted of the stolen goods by a method other than the above final judgment.

According to the above facts, this part of the facts charged of larceny, which became final and conclusive and committed prior to the pronouncement of judgment, is somewhat smaller than the method of crime; however, it refers to the nature of the perpetrator who repeatedly larceny as provided in Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes; and this refers to the habit of larceny as stated in this case, which means only the habit of larceny under the same number of Acts as long as it is recognized as the actor's realization of damp habits, not it refers to the habit of larceny, but it includes dampness that covers larceny under the several Acts (see, e.g., Supreme Court Decision 9Do4797, Feb. 11, 200), and it is more likely that the part of the facts charged of larceny, including the above facts charged, should not be deemed as being concurrent with the judgment of the court below, because it constitutes a crime of larceny, which constitutes a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and thus, it is more likely that the above part of the facts charged would be concurrent with the above facts charged.

(2) Determination of the assertion of unfair sentencing (the part on each of the crimes of subparagraphs 1 and 2-b and Kao at the market)

As seen above, since the part concerning the crime No. 2's crime cannot be maintained any longer due to the reasons for reversal of authority as seen above, since only the defendant's allegation of unfair sentencing regarding the crime No. 1 and No. 2-b or car-related crimes except this part can be sentenced to the same sentence, the defendant's release after completing the term of punishment, and committing a repeated crime again during the period of the repeated crime. The special robbery of this case, special robbery, special rape, and special robbery of this case are committed against the victims who lack the ability to resist at night, and thus, the victim's rape or indecent act by force cannot be committed, and the crime of robbery is committed by the defendant's 6-year imprisonment with prison labor for more than 6-year and less than 6-year punishment, and the defendant's attempt to commit the crime of larceny and other crimes of larceny, which are committed by the defendant's 3-year average and less than 2-year imprisonment with prison labor, and thus, the defendant does not have any specific tendency to commit the crime of larceny of this case.

2. Cases of attachment orders;

In the event that the defendant filed an appeal against the accused case, pursuant to Article 9(6) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, an appeal against the attachment order case is deemed to have been filed. However, the accused and the defense counsel did not submit any grounds for appeal regarding the attachment order case. In addition, even if examining the judgment of the court below, there is no reason to investigate and reverse this part ex officio.

3. Conclusion

Therefore, the part of the judgment of the court below as to each of the crimes listed in Article 2-A of the judgment of the court below concerning the crimes listed in Articles 1 and 2-b and 364-4 (4) of the Criminal Procedure Act is reversed pursuant to Article 364 (2) and (6) of the Criminal Procedure Act, and the part concerning each of the crimes listed in Articles 1 and 2-b of the judgment of the court below concerning the defendant's appeal is justified. The part concerning the defendant's case among the judgment below as to the attachment order case of the court below is dismissed as follows. Since the defendant's appeal regarding the attachment order case of the court below

Criminal facts and summary of evidence

The summary of the criminal facts and evidence against the defendant recognized by this court is as follows: "The third 6th 6th 3th 6th 2005.12th 2005.12th 2005.12th 13th 10th 11th 2005." "any risk of recommitting a sexual crime including a sexual crime against juveniles............." The defendant's 2-Ath 2th 2th 2th 2th 57th 2004........ the defendant released 70,000 won by means of cash service using the above R's Samsung Card in the automatic cash payment machine installed in Seocho-gu Seoul Metropolitan Government around September 23, 2004. The defendant's use of the credit card obtained by cash service by force is the same as the corresponding column of the court below's judgment, and it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

(a) A special robbery, rape: Articles 12 and 5(2) of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof, Articles 334(2), 33, and 297 of the Criminal Act;

(b) The point of each special robbery: Article 5 (2) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, Articles 334 (2), 33, 298 of the Criminal Act; and

(c) The point of each special rape: Article 6 (1) of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof, and Article 297 of the Criminal Act;

(d) Point of each special robbery: Articles 334(2) and (1), and 333 of the Criminal Act;

(e) An attempted special robbery: Articles 342, 334(2) and (1), and 333 of the Criminal Act;

(f) Habitual larceny: Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 331 (2) and Article 329 of the Criminal Act (to select a limited imprisonment, including all larcenys);

(g) An attempted quasi-rape: Articles 300, 299, and 297 of the Criminal Act;

(h) The point of quasi-decent acts by compulsion: Articles 299 and 298 of the Criminal Act;

(i) The point of fraud on August 9, 2009 and September 9, 2009: Articles 347(1) and 30 of the Criminal Act for each victim;

(j) The point of fraud on September 30, 2009: Article 347(1) of the Criminal Act;

(k) Use of each stolen credit card: Article 70 (1) 3 of the Specialized Credit Finance Business Act, and Article 30 of the Criminal Act (with respect to the crimes of August 8, 2009, inclusive, the choice of each imprisonment);

(l) Use of credit cards by force: Article 70 (1) 4 of the Specialized Credit Finance Business Act (to select each imprisonment);

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

A. In the case of a criminal record of a violation of the Punishment of Violences, etc. Act, sentenced on April 4, 2002, the crime of violation of the Act on the Punishment of Sexual Crimes, Protection of Victims thereof, etc., and the crime of violation of the Specialized Credit Financial Business Act: Provided, That in the case of a violation of the Act on the Punishment of Sexual Crimes, Protection of Victims thereof, etc., the proviso of Article 42 of the Criminal Act shall be limited.

B. On the other hand, each crime is committed in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes sentenced on November 5, 2007, and the remaining crimes are recorded in the judgment: Provided, That with respect to each sexual crime, violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims, violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims, each special robbery, each special robbery, violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (special robbery), violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny

1. Statutory mitigation;

Articles 26 and 55(1)3 of the Criminal Act [Article 26 and 55(1)3 of the Criminal Act concerning any crime of violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof on September 23, 2004]

1. Handling concurrent crimes;

The latter part of Articles 37 and 39(1) of the Criminal Act [the former part of Article 37 and the former part of Article 39(1) of the Criminal Act [the crime of violation of the Act on the Punishment of Sexual Crimes, Protection of Victims Thereof, etc. (Attempted Special Robbery)], the crime of violation of the Specialized Credit Financial Business Act, and

1. Aggravation for concurrent crimes;

(a) Crimes of violation of the Act on the Punishment of Sexual Crimes, Protection of Victims thereof, etc. (Attempted Special Robbery) and between violations of the Specialized Credit Financial Business Act referred to in paragraph (1) of Article 2 of the judgment: the former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act (limited to the penalty determined for the crime of violating the most severe Specialized Credit Financial Business Act, but the lower limit is the penalty determined for the crime of violation of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof);

(b) Among the remaining crimes: Aggravated penalty prescribed in the former part of Article 37, Article 38 (1) 2, Article 50, and the proviso to Article 42 of the Criminal Act (aggravated penalty determined by a violation of the Act on the Punishment of Sexual Crimes, Protection of Victims Thereof, etc. on October 1, 2009)

1. Order of inspection;

Article 37(1)4 of the Act on the Protection of Juveniles against Sexual Abuse;

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

Grounds for sentencing

피고인은 1995. 7. 28. 전주지방법원에서 강간치상죄로 징역 5년을 선고받았고, 2001. 3. 8. 서울지방법원에서 절도미수죄로 징역 1년 2월을 선고받았으며, 2002. 4. 4. 대전지방법원에서 폭력행위 등 처벌에 관한 법률위반죄로 징역 2년 6월을 선고받아 2004. 8. 6. 위 징역 2년 6월의 형의 집행을 마치고 출소하였고, 2005. 1, 4. 대전지방법원에서 절도죄로 징역 1년을 선고받아 2005. 1. 12. 그 판결이 확정되고, 2006, 2. 16. 서울 북부지방법원에서 절도죄로 징역 1년 6월을 선고받고, 2007. 11. 5. 부산지방법원에서 특정범죄 가중처벌 등에 관한 법률위반(절도)죄로 징역 1년 6월을 선고받아 2009. 3. 25. 그 최종형의 집행을 마치는 등 다수의 동종 실형 전과가 있고, 위 전과에서 나타나는 바와 같이 피고인은 형기를 마치고 출소하자마자 누범기간 중에 다시 범행을 저지르는 등 재범의 성향이 아주 높다. 피고인이 저지른 이 사건 특수강도강제추행, 특수강간, 특수강도 등의 범행은 피고인이 야간에 저항할 능력이 미약한 젊은 여성만을 범행대상으로 물색하여 피해자들에게 칼을 들이대며 위협하여 피해자들을 강간이나 강제추행을 하고 금품을 강취한 것일 뿐만 아니라 2004.경의 범죄를 제외하면 약 6개월 동안 10명의 여성을 상대로 계획적·반복적으로 범행을 저질렀다. 피해자 AE에 대한 특수강간의 범행은 칼로 피해자를 위협하여 인적이 없는 T으로 끌고 가서 붕대로 피해자의 눈을 가리고 강간하면서 입안에 사정을 하였고, 피해자 AF에 대한 특수강도강제추행 및 절도의 범행은 칼을 피해자의 목에 들이대고 위협하여 피해자의 승용차 뒷자석으로 끌고 가서는 움직이지 못하게 손과 발을 청색 테이프로 묶은 후 피해자를 강제로 추행하였고, 피해자로부터 빼앗은 신용카드로 돈을 인출한 후 다시 피해자에게 돈을 더 주지 않으면 누드 사진을 찍겠다거나 강간하겠다고 협박하여 피해자로 하여금 남동생에게 전화하게 하여 200만 원을 피해자의 통장으로 송금하도록 한 후 이를 인출하였으며, 피해자 AS에 대한 특수강도강제추행 및 절도의 범행은 칼을 피해자의 목에 들이대며 위협하여 피해자를 인적이 없는 T 오두막으로 끌고 가서 전기줄로 피해자의 양손을 묶어 반항하지 못하게 한 후 피해자를 강제로 추행하였고, 피해자로부터 빼앗은 신용카드로 현금을 인출하고 다시 위 오두막으로 돌아와서 피해자에게 "500만 원이 필요하다. 너 돈 없으면 나 강간할거야"라고 협박하여 피해자로 하여금 지인들에게 피해자의 통장으로 돈을 송금하도록 한 후 피해자의 통장에서 다시 현금을 인출하는 등 그 범행수법이 매우 치밀하고 위험하다. 피고인이 저지른 상습절도의 범행은 사우나에서 자고 있는 피해자들의 사물함 열쇠를 절취하여 사물함을 열거나 피해자를 가장하여 사우나 관리인에게 사물함을 열게 하는 등으로 3개월 내에 14회에 걸쳐 합계 6,716,700원 상당의 물품을 절취한 것으로 짧은 기간 반복적·계획적으로 절취범행을 하였고, 그 피해액도 비교적 크다. 이와 같이 피고인이 저지른 이 사건 각 범행으로 인하여 피해자들이 받은 물적·정신적 고통도 상당하였을 것임에도 피고인은 당심에 이르기까지 피해회복을 위한 아무런 조치도 취하지 않고 있다. 위에서 살펴본 바와 같이 피고인은 1995.경 강간치상죄로 징역 5년을 선고받은 이래로 수차례 실형을 선고받은 전력이 있을 뿐만 아니라 이 사건 각 범행도 피고인이 출소하자마자 누범기간 내에 모두 저지른 점, 단기간 내에 10명의 여성을 상대로 계획적·반복적으로 범행을 저질렀고, 그 범행수법 또한 매우 위험하고 대담한 점에 비추어 피고인을 사회에서 상당한 기간 격리시킬 필요가 있어 장기간의 실형의 선고는 불가피하다.

However, considering the defendant's environment, such as the defendant's age, character and behavior, environment, motive and circumstance of each of the crimes of this case, method and consequence of each of the crimes of this case, the total of 22-year punishment as ordered shall be determined by comprehensively taking into account all of the sentencing conditions shown in the arguments of this case, such as the defendant's age, character and behavior, and environment, the motive and circumstance of each of the crimes of this case, the means and consequence of each of the crimes of this case, the circumstances after the crime, etc.

Acquittaled Parts

The summary of the larceny among the facts charged in this case is as shown in the above 1-B (1). As stated in the grounds for reversal, this part of the facts charged falls under the time when a final judgment has been rendered, and thus, a judgment of acquittal is rendered pursuant to Article 326 subparagraph 1 of the Criminal Procedure Act.

Judges Lee Jae-won

Judges Magras

Judges Anti-Mao