Defendant

Both parties

Kim Young-tae

Attorney Jeong-sung (National Election)

Seoul Central District Court Decision 2009 Gohap1290, 2009 Gogo6 (Consolidated) Decided February 5, 2010

The judgment of the court below is reversed.

The defendant shall be punished by imprisonment for a term of one and half years.

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

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

1. Part of the defendant's case

A. Summary of grounds for appeal

(1) Defendant and the person to whom the attachment order was requested (hereinafter “Defendant”).

(A) misunderstanding of facts

Although the Defendant did not commit an indecent act by compulsion against the victim Nonindicted 3, 1, and 2, or assault Nonindicted 4, the lower court found the Defendant guilty of all the facts charged in the instant case.

(B) Unreasonable sentencing

The sentencing of the court below (three years of imprisonment) is too unreasonable.

(2) Prosecutor

The sentencing of the court below is unfair because the sentencing of the court below is too unfortunate.

B. Determination

(1) Judgment on the defendant's assertion of mistake of facts

In full view of the evidence duly adopted and examined by the court below, since the defendant can be recognized that he committed an indecent act by force against the victim non-indicted 3, 1, and 2 and assaulted against the victim non-indicted 4, the judgment of the court below is just and acceptable, and there is no error of law that affected the conclusion of the judgment by mistake of facts

(2) Determination on the assertion of unreasonable sentencing by the defendant and the prosecutor

Although the Defendant committed the instant crime during the period of repeated crime, and did not reach an agreement with the victims, it is recognized that the Defendant did not have a previous record of sexual assault, the Defendant appears to have committed the instant crime contingently, and considering all the sentencing conditions specified in the instant pleadings, such as the Defendant’s age, character and conduct, environment, and the circumstances and results of the instant crime, it is recognized that the Defendant’s punishment is too unreasonable, and the Defendant’s above assertion is reasonable. The Prosecutor’s assertion is without merit.

2. Part of the attachment order case

A. Summary of grounds for appeal

(1) Defendant

In light of the fact that indecent act by force against a minor under the age of 13 of this case is merely one day and there is no such criminal record, it cannot be readily concluded that the defendant is in danger of recidivism, and the attachment order of the location tracking electronic device (hereinafter “electronic device”) is unfair.

(2) Prosecutor

In light of the fact that the Defendant committed the instant crime during the period of repeated crimes, and even though he committed the indecent act by force, he committed the instant crime against children under the age of 10, the possibility of repeating the crime is very high in view of the fact that the Defendant did not repent even though she committed the indecent act by force, and that the Defendant did not commit the indecent act by force, it is insufficient to protect the victims in light of the degree of risk of repeating the crime.

B. Determination

(1) Summary of the grounds for the request for attachment order and the judgment of the court below

A prosecutor: (a) around 09:00 on October 14, 2009, the defendant tried to keep the victim's sexual organ by entering the victim non-indicted 1 (the victim non-indicted 12 years of age), who is his/her dependent, and the victim non-indicted 2 (the 10 years of age), who is his/her dependent, with his/her panty only after having taken the victim's panty with his/her panty, and forced the victims to keep his/her panty, but the victims were forced to keep his/her panty; (b) the victims were forced the victims to her her sens, committed indecent acts by force, and committed again sexual crimes, and (c) the court below ordered the defendant to attach his/her 2 years of age to the electronic tracking device pursuant to Article 5 (1) 4 of the Act on the Electronic Monitoring of Specific Criminal Offenders to the defendant pursuant to Article 5 (1) 1 to 4 of the Act on the Electronic Monitoring of Electronic Monitoring.

(2) Judgment of the court below

In order to issue an order to attach an electronic device pursuant to Article 5(1)4 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, it is recognized that a person under 13 years of age is under the risk of recommitting a sexual crime. Here, “risk of recommitting an electronic device” means that the possibility of recommitting a sexual crime is insufficient enough enough enough and that the person subject to the request to attach an electronic device would be under the legal peace by again committing a sexual crime in the future. The risk of recommitting an electronic device ought to be objectively determined by comprehensively assessing all circumstances, such as the occupation and environment of the person subject to the request to attach an electronic device, the conduct before and after the crime, the motive, means, circumstances after the crime, and outline of the crime. Such determination ought to be based on the time of judgment as a constructive judgment on the future. In addition, since the order to attach an electronic device is a disposition unfavorable to the person subject to the request to attach an electronic device, the requirement of re

In the instant case, according to the health team and the Korean evaluation of the risk of recidivism of a sex offender against the Defendant, the Defendant was deemed to have high possibility of recommitting a sexual crime because the risk of recommitting a sexual crime falls under “the upper” level. However, even if there were no previous criminal records, the Defendant appears to have committed the crime of indecent act by compulsion at first time, even though there were several opportunities with the victims, and the indecent act against the victim Nonindicted 1 and 2 under the age of 13 was committed at the same site only once, and it is only one time, and it is difficult to conclude that the Defendant again commits a sexual crime, taking into account the following: (a) the Defendant attempted to attract the victims of the instant victims’ hand by inducing them to reach the Defendant’s sexual organ by force; (b) the victims were suffering from the victims; and (c) the exercise of tangible force or the degree of indecent act is minor, it is difficult to conclude that the Defendant has a risk of committing a sexual crime again.

Therefore, although the request for the attachment order of this case must be dismissed on the ground of its reason, the court below erred by misunderstanding the facts or misunderstanding the legal principles as to the risk of recidivism, thereby ordering the attachment of an electronic device to the defendant. Therefore, the defendant's above assertion pointing this out is with merit

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act and Article 35 of the Act on the Electronic Monitoring of Specific Criminal Offenders, and the following is ruled again after pleading.

The summary of the facts constituting the crime recognized by this court and the evidence thereof are as shown in each corresponding column of the judgment below, except that the facts constituting the crime No. 2 in the judgment of the court below added 09:00 to the following "No. 13, 2009" of No. 2, No. 10 of the facts constituting the crime as stated in the judgment of the court below, and the "head and origin" of No. 6 of the judgment of the court below is deemed to be the head and origin as stated in each corresponding column.

1. Article applicable to criminal facts;

Article 298 (Indecent Act by Indecent Act, Selection of Imprisonment), Article 8-2 (3) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (Amended by Act No. 10258, Apr. 15, 2010); Article 298 (Indecent Act by Indecent Act by Minor under Age 13), Article 260 (1) of the Criminal Act (indecent Act by Indecent Act, Selection of Imprisonment and Selection of Imprisonment)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act: Provided, That the proviso of Article 42 of the Criminal Act shall not apply to each crime of violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims (Minor Rape, etc. under thirteen years

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, Article 50, and the proviso (proviso) Article 42 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on the Punishment of Sexual Crimes and Protection of Victims, etc. (Violation of the Act on the Protection, etc. of Victims (Minor Rape, etc. under Fifteen Years of Age) against Non-Indicted

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (As above, considering the favorable circumstances to the defendant)

1. Order of inspection;

Article 37(1)1 of the former Act on the Protection of Juveniles against Sexual Abuse (wholly amended by Act on the Protection of Children and Juveniles against Sexual Abuse, Act No. 9765 of June 9, 2009)

The summary of the facts leading up to the Defendant’s request for the attachment order of an electronic device is as specified in Article 2-2(1). As seen earlier, the Defendant’s request for the attachment order of this case is groundless since there is no evidence to prove that the Defendant is likely to recommit a sexual crime. Thus, the Defendant’s request for attachment order of this case is dismissed pursuant to Article 9(2)1 of the former Act on the Attachment of Electronic Monitoring of Specific Criminal Offenders (amended by Act No. 10257, Apr. 15, 2010

Judges Choi Jae-in (Presiding Judge)