2017No733 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape and Injury);

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

(Indecent Act by Compulsion)

2017Mno35 (Joint Attachment Orders)

A

Defendant and Prosecutor

A decoration (prosecution) and Kim Ho-young (public trial)

Attorney B,C

Seoul Central District Court Decision 2016Da1138, 2016Na36 decided February 10, 2017

(Consolidated) Judgment

June 15, 2017

The part of the judgment of the court below regarding the defendant case shall be reversed.

A defendant shall be punished by imprisonment for five years.

Personal information on the accused shall be disclosed and notified for five years.

The defendant's appeal regarding the part of the judgment below for which attachment order is requested shall be dismissed.

1. Summary of grounds for appeal;

A. Part of the defendant's case

1) The defendant and the person to whom the attachment order was requested (hereinafter referred to as the "defendant") asserted the mistake of facts or misapprehension of legal principles by the defendant and the person to whom the attachment order was requested (hereinafter referred to as the "defendant") had already been completed when the victim I (the 15 years old, hereinafter referred to as the "victim") was broken out in a locking. Therefore, there is no causation between the act of self-defense before the shoulder or the injury after the shouldering.

In addition, while the defendant avoided the victim and escaped from the door to the door, he was unable to open the door, and again tried to suppress the victim's attack or resistance, he only contacted the victim's chest with the victim's chest, and there was no intention of indecent act by compulsion. Even if such act constitutes indecent act by compulsion, there is no causation between the victim's injury before the escape and the indecent act after the escape.

2) Defendant’s assertion of unreasonable sentencing

The punishment of the court below (six years of imprisonment) and the incidental disposition (five years of disclosure and notification) of the court below are too unreasonable.

3) Prosecutor’s assertion of unreasonable sentencing

The sentence of the court below is too unhued and unfair.

B. The part on the case of the attachment order

Although it is difficult to see that there is a habitor of sexual crimes against the defendant, and it is unreasonable to order the defendant to attach an electronic tracking device for 20 years at the court below although the defendant is not highly likely to recommit sexual crimes.

2. Determination

A. As to the defendant's assertion of mistake of facts or misapprehension of legal principles

1) Relevant legal principles

In the crime of injury by indecent act by indecent act by indecent act, an injury ought to be caused by an act closely related to the opportunity or time and place of indecent act by indecent act. Meanwhile, it includes not only an act by indecent act by indecent act itself, but also an act by indecent act by indecent act by indecent act by indecent act by indecent act by compulsion (see, e.g., Supreme Court Decisions 2007Do2935, Jul. 12, 2007; 2008Do5915, Sept. 11, 2008).

(ii) the facts of recognition

According to the evidence duly adopted and examined by the court below, the following facts can be acknowledged.

The Defendant intruded into the studio of the victim I, and confirmed that the victim panty spanty spanty spanty spanty spanty spanty in the bed and spanty spanty spanty spanty spanty spanty spanty spanty spanty spans, and that the victim himself would come out of the house, but the victim spans or the defendant would come out of the house at the same time, and immediately prevented the victim from getting out of the house by hand. Nevertheless, the victim continued to have a sound spand, and the defendant was 3-4 times by making it difficult for the victim to listen to his sound, and the victim tried to get out of the house, and the defendant tried to come out of the house, and the defendant tried to have the victim spand and tried to come out of the house, and the defendant tried to come out of the house, without leaving the door to spansh the victim's door, and tried the victim's s s s door.

One hand during the time he was able to write the sound above the panty line in the inner panty line, as he was in charge of the string of the victim, and the other hand. The defendant again opened the panty door in the front door and fleded. The victim had the string of the snow on the string of the defendant's drinking.

3) Determination

According to the above facts, since the victim's injury was caused by the defendant's prior indecent act by compulsion, it is reasonable to view that there exists a causal relationship between the defendant's indecent act by compulsion and the victim's injury. Therefore, this part of the defendant's assertion is without merit.

B. Regarding the assertion of unfair sentencing

In addition, the Defendant committed a serious sexual humiliation to the victims as well as the victims by committing an act of self-defense and committing indecent act by force, and by committing an injury, etc., which is caused by the eye of the victim I who sees the face of the victim I who resisted. Furthermore, each of the crimes of this case was committed repeatedly between the two months and the one month, and there is a tendency that the criminal act of this case took place repeatedly, and that the law of the number of crimes took place. The Defendant invaded upon the residence in 201 and attempted to rape the victims, thereby committing a crime of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape, etc.). Accordingly, the Defendant should be held liable for criminal liability among each of the crimes of this case.

However, the injury suffered by the victim of the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes is a minor figure. The defendant repents and reflects his/her mistake, and has made efforts to recover part of the damage by paying money to the victim I with the consent of the victim I by the appellate court. In addition, the defendant, after the parent's divorce, was found to have caused a minor distortion or impediment in the psychological and emotional process in the process of being subject to a serious education for the sole custody of the victim. Since he/she was unable to receive proper treatment due to such distortion or impairment as economic difficulties, he/she did not properly regulate his/her own net desire or impulse and caused the crime of this case. Many relatives, including the mother of the defendant, want to leave the defendant's wife while he/she spreads his/her chest.

In addition, in light of the defendant's character, environment, motive, means, consequence, etc. of the crime, all of the sentencing conditions that the appellate court revealed, such as the circumstances after the crime, and the scope of recommended sentencing guidelines for the enactment of the sentencing guidelines by the Supreme Court, etc., the court below's sentence cannot be maintained too much at the appellate court. Thus, this part of the defendant's argument is reasonable and the prosecutor's argument on this part is without merit.

According to the evidence duly adopted and examined by the court below, all of the facts and circumstances acknowledged by the court below are justified. In full view of these facts, it is reasonable to determine that the defendant has a risk of recommitting a sexual crime, and thus, the judgment of the court below to the same effect is justified.

In addition, Article 9(1) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”) provides that “where a request for an attachment order is deemed reasonable, a court shall issue an attachment order by judgment within the period specified in the following subparagraphs: Provided, That where a specific crime is committed against a person under the age of 19, the lower limit of the attachment period shall be double the lower limit of the attachment period specified in the following subparagraphs: Provided, That where a specific crime is committed against a person under the age of 19, the lower limit of the attachment period shall be double the lower limit of the attachment period specified in the following subparagraphs.” Article 9(1)1 provides that “The statutory penalty for the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) committed by a criminal defendant by impairing his/her residence under the age of 15 is an imprisonment for life or for at least 10 years:

Therefore, this part of the defendant's argument is without merit.

Conclusion

Since the appeal by the defendant against the part of the judgment below against the defendant's case is well-grounded, this part of the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act and it is again decided as follows after pleading. Since the defendant's appeal against the part of the judgment below regarding the claim for attachment order among the judgment below is without merit, it is dismissed in accordance with Article 35 of the Electronic

Criminal facts and summary of evidence

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are the same as the corresponding column of the judgment below, and thus, they are quoted 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;

Articles 8(1) and 3(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Articles 319(1) and 298 of the Criminal Act (the occupation of an indecent act by force, the choice of a limited term of imprisonment), Article 3(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Articles 319(1) and 299 of the Criminal Act (the occupation of each intrusion upon residence, the choice of a limited term of imprisonment)

1. Aggravation for concurrent crimes;

Article 37 (Aggravated Punishment of Sexual Crimes in Violation of the Act on the Punishment, etc. of Sexual Crimes in the Judgment with the most severe punishment provided for in the former part of Article 37, Article 38 (1) 2, or Article 50 of the Criminal Act;

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. An order for disclosure and notification;

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

Reasons for sentencing

1. Scope of applicable sentences: Imprisonment for a period of five years to twenty-two years;

2. Scope of recommended sentences according to the sentencing criteria;

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

[Determination of Punishment] The type 5 (Indecent Act by Indecent Act, such as Residence) shall be applied in cases where the result of bodily injury to a sex offender was caused.

[Special Mitigation] Minor Injury

[Scope of Recommendation] Reduction Area (five years of imprisonment - eight years of imprisonment)

(b) Concurrent crimes: Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

[Determination of Kind] General Criteria for Sex Offenses Act of Indecent Act by Compulsion (subject to 13 years of age or older)

[Scope of Recommendation] Basic Field (2 years and six months of imprisonment - five years of imprisonment): Imprisonment with prison labor for 5 years - February 12

3. Determination of sentence: Imprisonment with prison labor for not less than five years and the reasons examined in the paragraph (b) above shall be determined as per the text;

Duties to register and submit personal information.

When a conviction on a crime in the judgment becomes final and conclusive, the defendant shall submit personal information to the competent authority pursuant to Article 43 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes because he/she falls under a person subject to registration of personal information under Article 42 (1

It is so decided as per Disposition for the above reasons.

Awards and decorations for judges;

Judges Jeong Jae-ok

Judges Lee Young-young