2018Gohap150 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

(A) Violation of the Child Welfare Act (indecent act by compulsion of a child).

Brokerage Sexual Harassment, etc.

A

Maok-young (prosecutions) and Kim Jong-chul (public trial)

Attorney B (Korean National Assembly)

April 27, 2018

A defendant shall be punished by imprisonment for not less than two years and six months.

The defendant shall be ordered to complete the sexual assault treatment program for 80 hours.

The seized Samsung (M-G720N) mobile phones (No. 1) shall be confiscated.

Criminal facts

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

A. On March 2017, the Defendant: (a) around March 2017, the Defendant, along with the Defendant’s fingers of the Defendant, who was intending to sleep at the Defendant’s home room located in Seongdong-gu Seoul building and the Defendant’s home room located in 302, placed his finger in the victim’s clothes; and (b) placed the victim’s chest in the victim’s panty line; and (c) placed the victim’s chest in the victim’s panty line; and (d) committed indecent act by force against the victim, who is a blood relative.

B. Around July 2017, the Defendant 201: (a) sited along the victim’s chest, who was trying to sleep at the same place as the above-mentioned 1-A (A); (b) kidd the victim’s chest, and her fingers into the victim’s panty; and (c) her fingers into the victim’s her panty; (d) thereby, the Defendant committed an indecent act against the victim by force. On November 8, 2017, the Defendant committed an indecent act by force against the victim, who was in a relationship of relatives. Around November 8, 2017, the Defendant kept the victim at the left side of the victim who was trying to sleep at the same place as the above-mentioned 1-A (A) and kept the victim’s chest by putting his finger in the victim’s clothes; and (e) committed an indecent act by force against the victim.

2. Violation of the Child Welfare Act (voluntary compulsion, intermediary, sexual harassment, etc. against a child);

피고인은 2017. 11. 15. 08:30경 피고인의 주거지 거실에서 피해자에게 피고인의 휴대전화에 저장된 성관계 동영상을 보여주며 "이거 한번 봐봐. 같이 한번 해보자."라고 말하였다.

As a result, the Defendant committed sexual abuse such as sexual harassment that causes a sense of sexual humiliation to the victim who is a child.

Summary of Evidence

1. Partial statement of the defendant;

1. The first written statement against the defendant in part of the interrogation protocol of the prosecution;

1. Records of statements made by victims;

1. Each police statement of E and F;

1. Family relation certificate:

1. A report on internal investigation, report on internal investigation (in the form of house structure and bed), report on internal investigation (in the form of a victim), investigation report (in the form of a victim), investigation report (in the form of a victim's cell phone image checking), investigation report (in the form of a suspect's cell phone image

Application of Statutes

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

Article 5(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a point of indecent act by blood and marriage), Article 71(1)1-2 and Article 17 subparag. 2 of the Child Welfare Act (a point of sexual abuse and choice of imprisonment)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Act and Article 50 of the Act shall be the most severe judgment on March 2017.

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Exemption from an order for disclosure and notification;

In full view of all the circumstances, including the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the crime of this case committed by the defendant prior to the crime of this case) and the fact that it is difficult to readily conclude that the defendant has the risk of recidivism of sexual assault, since there is no record of punishment for sexual assault crimes committed by the defendant prior to the crime of this case, each crime of this case was committed against a victim related to his/her relative, and thus, it is likely that the victim would suffer greater damage if disclosed, and the defendant's personal information registration against the defendant and completion of sexual assault treatment can only be deemed to have an effect of preventing recidivism, it shall be determined that there is a special circumstance that may not disclose or notify

1. Summary of the assertion

Criminal facts stated in Paragraph 2 of the judgment are acknowledged, but each criminal facts listed in Paragraph 1 of the judgment are dealt with as follows. First of all, the defendant's form of indecent act is described, and the indictment procedure violates the provisions of the law because it is difficult to see that the facts charged have not been specified because the contents of assault and intimidation are not entirely stated. Next, since the defendant did not assault and threaten the victim, the crime of indecent act by compulsion, which constitutes the elements of assault and intimidation, cannot be established, and the victim's chest and her her her her her her her her her her her b

2. Relevant legal principles

A. The crime of indecent act in the funeral includes not only the case where the other party commits an indecent act after having the other party resist the other party by assault or intimidation, but also the case where the assault itself is deemed an indecent act (hereinafter referred to as "sexual indecent act"). In this case, an indecent act does not necessarily require that the assault be enough to suppress the other party's will, and if there is the exercise of tangible force contrary to the other party's will, regardless of its force, it means an act that causes sexual humiliation or aversion to the general public objectively and goes against good sexual morality, thereby infringing on the victim's sexual freedom. Determination of whether it constitutes an indecent act ought to be made with careful consideration of the victim's intent, gender, age, relationship between the perpetrator and the other party's former, circumstances leading to such an act, specific form of act, objective situation, and sexual morality of the time (see, e.g., Supreme Court Decision 201Do2417, Apr. 26, 2002).

B. In a case where a minor victim makes a statement that he/she had suffered a sex offense, such as indecent act by force, from his/her relatives in the position of protecting and supervising him/her, the credibility of the statement shall not be dismissed without justifiable grounds, even if the victim’s statement appears to be inconsistent with the minor part due to a minor’s unclearness of the content of the statement, or a difference in the expression, if the victim, despite being aware of the absence of any material evidence or direct witness, other than his/her own statement, clearly expresses the victim’s personal injury at the risk of criminal punishment by his/her guardian, and the motive or reason for making a false statement is not clearly revealed. In addition, if the contents of the statement are factual, specific, consistent, consistent, and there are no differences in the statement in light of the empirical rule, it is difficult to find the credibility of the statement without justifiable grounds (see, e.g., Supreme Court Decision 2006Do3830, Oct. 10, 206).

3. Determination

A. As seen in the following behind the specification of the facts charged, insofar as the Defendant’s act constitutes “indecent act”, this part of the facts charged can be deemed as specifically stating the indecent act and the attitude of the method of assault. This part of the Defendant and the defense counsel’s assertion is not acceptable.

B. The establishment of indecent act by compulsion

1) The Defendant denies that he did not commit an indecent act against the victim as described in Paragraph 1 of the judgment by the investigative agency, including that the victim’s chest and her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her

2) Comprehensively taking account of the following circumstances revealed in accordance with the evidence adopted and examined by this court, the victim’s statement is sufficiently reliable, and thereby, it can be acknowledged that the victim’s chest and her fel, who was intending to sleep as stated in the Defendant’s crime No. 1.

A) Among the statements made by the victim, the main parts of the victim’s statement are generally consistent and are specific to the extent that the content thereof must be directly experienced. Moreover, there is no part that can be deemed contradictory or unreasonable in light of logical and empirical rules.

(1) On November 15, 2017, the victim who was in the fifth grade of an elementary school at the time of each of the instant crimes stated that the victim was in the fifth grade of an elementary school until 09:50 on November 15, 2017, and that the defendant did not have his body or her body until 4th grade F, and that the defendant was in a set of the new wall time from the fifth grade and the defendant was in a set of time one week, and that the defendant was in a heavy part of her own clothes. In addition, the victim showed the body of the same day and her body. In today, the victim tried to show the same image of the defendant, and the victim was in a relatively consistent manner with the victim's statement that "I am in a relatively consistent manner with the victim's own body," and the victim was in a relatively consistent manner with the victim's statement from the Seoul Center on November 28, 2017.

(2) The victim, at the Seoul Seaba Center, was the last day on November 2017, and the day after the day after the day was the day when he she received gifts from a private teaching institute. At the first day, the day when he she got her first, he she was the day when she went back to the fiveth grade in the spring of 2017, and was the day when she was her back to the opening point of the Aambac’s language. On July 2017, 201, the victim was trying to look back to her as soon as the Defendant tried to look back from TV after her shower, but the Defendant was only her. The day was the day when she got her to come her first time. The Defendant made a statement that he she was her memory on the day when she was her in front, and that he she was sufficiently aware of the grounds for the Defendant’s act of memory as stated in paragraph (1) of this Article.

(3) The victim's dump dump dump dump dump dump even fump dump. When the defendant first met dump, he dump dump dump dump. When the defendant first met dump, he dump dump dump dump dump dump. In July, the defendant bump dump dump dump and dump dump dump, but the defendant bump dump and dump dump dump dump dump. Finally, he dump dump dump dump dump dump dump dump was dump.

(4) Of the victim’s statements, there are parts that are not consistent with the Defendant and the victim’s attitude or location when committing an indecent act. However, as seen earlier, the victim stated that the victim was committed an indecent act once every week from the Defendant during several months. As such, this is merely a natural feature that appears in the process of specifying the exact situation by rhizing the victim’s memory several times, and the overall credibility of the victim’s statement does not decline considering the following circumstances.

B) Around November 15, 2017, the victim expressed a large number of stories when first revealing the facts of his damage to the teacher at the school. On the other hand, around November 28, 2017, the victim continued to appear in the process of making a statement at the Seoul Seaba Center. In addition, the victim knows about the family members of the Republic of Korea at around November 29, 2017. In that sense, the victim sleeped in the Japanese Island. In addition, the Defendant also stated that “I will go more if I think that I would go forward even if I would go forward before I think.” On the part of the victim, I would like to find that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see the victim.

C) Around 8 months prior to the Defendant’s first indecent act on November 2017, 2017, the victim talked with the teacher to contain the fact of damage. However, at the Seoul Seaba Center, the victim said that “the victim was aware of the Defendant’s unfortunate and speech, so that he could not talk with others.” The victim also stated that “I am aggressive and consensus.” Despite the fact that the victim was not a separate one, I would like to raise the speech and desire. As such, if the Defendant, a pro-friendly son residing with the victim, showed a very little appearance, it seems that the victim was unable to immediately talk with the Defendant or a third party about the fact of his damage. In fact, the victim might not have been aware of the fact that the victim was suffering from a sudden indecent act, at intervals of time, due to the victim’s statements made in the process of making a statement about his damage. As seen earlier, it was difficult for the victim to have been aware of the fact that he was suffering from the victim’s family.

D) At the time of the first statement of the victim’s damage, there is no circumstance to deem that the teacher who heard the victim’s damage had provided information that is not the fact to the victim with a biased prejudice. In addition, when the victim makes a statement at the Seoul Seaba Center, the fiduciary relationship was present at the victim, and there was no question to induce the victim to make a specific answer in the process of making the statement.

마) 피고인은 자신이 평소 피해자와 살갑게 지내는 편이 아니었고 피해자와 아무런 신체 접촉이 없었다고 주장하면서도 판시 제2항 기재와 같이 피해자에게 성관계, 동영상을 보여주며 "이거 한번 봐봐. 같이 한번 해보자."라고 말한 사실은 인정하고 있다. 그런데 피고인이 피해자에게 보여준 동영상은 남녀의 성기 삽입 장면이 적나라하게 촬영된 것으로, 영상을 함께 보며 피해자에게 그와 같이 해보자고 말한 것은 피고인이 검찰 제1회 조사에서 진술한 대로 피해자에게 그 정도까지의 성적 접촉을 제안하였다고 해석할 수 있다. 이러한 피고인의 언동은 그 전에 피해자와의 성적 접촉이 없었다면 나오기 어려운 것으로 아무런 신체 접촉이 없었다는 피고인의 주장과 어긋난다.

3) The Defendant’s act of talking the victim’s chest and her butt, who was about to sleep, can be seen as a so-called indecent act that constitutes an indecent act against the victim by itself in light of the victim’s age, relationship between the victim and the Defendant, specific behavior, etc. Ultimately, the Defendant’s act as stated in paragraph (1) of the same Article constitutes a crime of indecent act by compulsion.

4) Accordingly, we cannot accept this part of the assertion by the Defendant and the defense counsel.

1. The grounds for sentencing: Imprisonment with prison labor for a period of two years and six months from June to June 22

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

(a) Basic crimes: Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes on March 2017;

[Determination of Type] The type 2 (Indecent Act by Indecent Act by Indecent Act by Indecent Act, etc.) (a victim under the age of 13 at the time of each of the crimes in this case, although he/she was under the age of 13 at the time of each of the crimes in this case, he/she was indicted by indecent act by blood under Article 5 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, not by indecent act by blood by blood under Article 7 (3) of the same Act, but by indecent act by blood under Article 5 (2) of the same Act, he/she refers to the "the crime of indecent act by blood under the age of 13 at the age of 13" among the "the crime of indecent act by force

[Special Aggravation] Aggravations: Victims (the father of the victim does not want the punishment of the defendant in this court) who are vulnerable to the crime. However, the defendant did not make a serious effort to repent or to reach an agreement with respect to his own crime, and the above expression of intent by the father of the victim does not appear to reflect the intent of the victim. Therefore, the statement by the father of the victim is not considered as a "unlimited penalty," which is a special mitigation factor; hereinafter the same shall apply).

[Recommendation and Scope of Recommendation] Aggravation, 4 years to 7 years of imprisonment

(b) Concurrent Crimes: A crime of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Acts in the Relationship of Relatives) around July 2017;

[Determination of Type] Crimes of Indecent Act by Compulsion (subject to 13 years of age or older) on the General Standards for Sexual Crimes

[Special Aggravation] Aggravated Punishment: Aggravating area of the victim (the recommended area and the scope of recommendations) who is vulnerable to the crime, four to seven years of imprisonment. A second concurrent crime: A violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a indecent act by force in relation of relatives) around November 8, 2017.

[Determination of Type] General Criteria for Sexual Crime Crime of Indecent Act by Indecent Act (subject to 13 years of age or older)

[Special Aggravation] Aggravations: Victims (recommended and Scope of Recommendation) who are vulnerable to crimes, the scope of aggravated punishment, 4 years to 7 years of imprisonment.

(d) Scope of recommendations according to the standards for handling multiple crimes;

From 4 to 12 years of imprisonment (the total of 2 years and 4 months of imprisonment with prison labor of 1/2 up to 7 years of imprisonment with prison labor of 1/2 of the upper limit of the range of sentence for the first concurrent crime) and 1/3 of the upper limit of the range of sentence for the second concurrent crime, each of 7 years of imprisonment with prison labor of 4 to 12 years);

3. Each of the instant crimes committed by the sentence decisions is an indecent act committed by the Defendant on several occasions by force against the victim who is his/her grandchildren, and by showing the victim’s sexual intercourses. In particular, the Defendant is merely 11 years of age residing together with the victim, and thus, it is not good to commit the crime against the victim who is vulnerable to the crime, and is highly likely to be subject to social criticism. Accordingly, the victim seems to have suffered considerable mental impulse or sexual humiliation.

These circumstances are disadvantageous to the defendant.

However, the Defendant is older than 73 years of age, and there are no criminal records of the same kind, and there are no criminal records of the suspension of execution. Before the instant case, the Defendant appears to have maintained a smooth family life with his/her family members including the victim, and the Defendant is against his/her recognition of some crimes. In addition, the father and son of the victim and son of the Defendant want to receive treatment rather than punishment against the Defendant. Such circumstances

In addition, comprehensively taking into account the various sentencing conditions shown in the trial process of this case, such as the character, conduct, family relationship, motive, means and result of the crime, and circumstances after the crime, the punishment is determined as ordered by deviating from the minimum sentencing criteria and the sentence is determined as ordered.

Registration of Personal Information

Where a conviction becomes final and conclusive on each crime in the judgment, the defendant is a person subject to registration of personal information pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.

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

The presiding judge and the deputy judge;

Regular Category of Judges

For judges the last place: