Defendant

Egyptium

Attorney Name-ho

A defendant shall be punished by imprisonment for five years.

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

A location tracking electronic device shall be attached to a person who has requested an attachment order for seven years.

Matters to be observed as stated in the attached Form shall be imposed on the person requested to attach an attachment order.

Among the facts charged in this case, the prosecution against the violation of the Act on the Protection of Juveniles against Sexual Abuse (Juvenile Rape, etc.) is dismissed.

1. Violation of the Act on the Protection of Juveniles against Sexual Abuse (Juvenile Rape, etc.);

On January 1, 2009, the Defendant, at around 14:00 on the date, tried to rape the victim ○○○ (at that time, 15 years old) and carried the victim into the Nakdong River mouth in the Gyeong-gun of the Gyeongbuk-gun, by burning the victim on the vehicle (vehicle registration number omitted) that was owned by the Defendant.

피고인은 그곳에서 자동차를 세우고 뒷좌석으로 자리를 옮겨 피해자도 뒷좌석으로 넘어오게 한 후 이미 거의 매주 같은 장소에서 강간을 당하여 저항할 의지를 상실한 피해자의 바지와 팬티를 벗기고 가슴과 음부를 손으로 만지고 혀로 핥아 애무한 다음 피해자의 몸 위에 엎드려 성기를 음부에 삽입함으로써 강간하였다.

2. Violation of the Act on the Protection of Juveniles against Sexual Abuse (Juvenile Rape, etc.);

On February 15, 2009, after 12 days after the day when the above victim '○○○ (the age of 15 at that time) was pregnant due to the defendant, the defendant tried to rape the victim, and moved the victim into a sloping river bank located in the Gyeongbuk-gun, Gyeongbuk-gun, by burning the victim on the passenger car as stated in Paragraph 1, which was owned by the defendant, and then moving the victim into a sloping river bank located in the Gyeong-gun, Gyeongbuk-gun.

피고인은 그곳에서 자동차를 세우고 뒷좌석으로 자리를 옮겨 피해자도 뒷좌석으로 넘어오게 한 후 이미 거의 매주 같은 장소에서 강간을 당하여 저항할 의지를 상실한 피해자의 바지와 팬티를 벗기고 가슴과 음부를 손으로 만지고 혀로 핥아 애무한 다음 피해자의 몸 위에 엎드려 성기를 음부에 삽입함으로써 강간하였다.

3. Violation of the Act on the Protection of Juveniles against Sexual Abuse on October 24, 2009;

On October 24, 2009, the Defendant had been able to rape the victim's ○○○ (the age of 16 at that time) and left the car as stated in paragraph (1) owned by the Defendant, by burning the victim into the victim and moving the victim into the Nakdongdong River in the Dasan-gun of the Gyeongbuk-gun.

The Defendant, at that place, set up a motor vehicle and moved it to the back seat, and, like in the previous case, was off from the victim’s clothes, “one-time defect is terminated,” and the victim resisted and continued to do so, but was not in an attempted crime by resisting and continuing to do so.”

1. Part of statements corresponding thereto in this court by the defendant;

1. Each statement corresponding thereto in this Court by the witness ○○ and Nonindicted 4

1. Each protocol of examination of the accused prepared by the public prosecutor, which corresponds thereto;

1. Each statement corresponding thereto among the investigation reports prepared by the Daegu District Prosecutors' Office or by the assistant judicial police officers;

【Risk of Reoffending at the Time of Sales】

In full view of the fact that the defendant had sexual intercourses with the aged victim, the method and circumstances of the defendant's crime, the circumstances after the crime, etc., the risk of recidivism of sexual crimes is recognized.

1. Article applicable to criminal facts;

Article 7(1) of the former Act on the Protection of Juveniles against Sexual Abuse (amended by Act on the Protection of Children and Juveniles against Sexual Abuse, Act No. 9765 of Jun. 9, 2009 and enforced January 1, 2010; hereinafter the same shall apply), Article 297 (Rape) of the Criminal Act, Article 7(5) and (1) of the former Act on the Protection of Juveniles against Sexual Abuse, Article 297 (Attempted Rape) of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with the punishment prescribed in the Act on the Protection of Juveniles against Sexual Abuse (Juvenile Rape, etc.) on February 15, 2009, with the largest nature of the offense and the criminal administration]

1. Order of inspection;

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

1. Orders to attach electronic devices;

Article 9(1)2 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders; Article 5(1)3 of the former Act on the Monitoring, etc. of Electronic Monitoring, Etc. of Specific Criminal Offenders (Amended by Act No. 10257, Apr. 15, 2010)

1. Imposition of obligations;

Article 9-2(1) of the former Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (Amended by Act No. 10257, Apr. 15, 2010)

1. The assertion;

The defendant and his defense counsel asserts that there is no fact that sexual intercourse between the victim and the victim has been forced against the victim's will if sexual intercourse was made under the agreement with the victim.

2. Determination

A. The defendant and his defense counsel asserted that the victim's statements are not consistent and are not reliable in violation of objective facts.

In light of the victim's Na and the attitude of the statement, etc., the victim's statements are different from the investigation agency to this court. However, when considering the victim's Na and the victim's attitude, it seems that the victim's statement does not deviate from a natural level due to the limit of human memory. In particular, although the defendant and the defense counsel impeachments the victim's credibility on the ground that the victim was first raped in the same veterinary law for a long time, it seems that the victim's initial memory is lost or scarcityd as the victim was sexual intercoursed in the same veterinary law for the same time. Furthermore, it appears that the victim made a consistent statement considering the damage as a whole. In particular, it is difficult to view that the victim made a consistent statement on the part of important parts, such as the process or method of raped by the defendant, and circumstances after raped by the defendant, and it is difficult to view that it was false, and there is no other material to reject the victim's credibility.

B. At the time of sexual intercourse, the Defendant cited as the ground for a legal action that the victim was almost not able to resist, and that the Defendant did not use violence and intimidation to the extent that the victim’s resistance was significantly difficult.

The issue of whether the perpetrator committed assault and intimidation to establish the crime of rape ought to be determined based on the specific situation in which the victim was faced at the time of sexual intercourse by comprehensively taking into account the content and degree of assault and intimidation, the background leading up to exercising force, the relationship with the victim, and the circumstances at the time of sexual intercourse, as well as all the following circumstances. From an ex post perspective, it should not be readily concluded that the perpetrator’s assault and intimidation did not reach the extent to which the victim could have significantly difficult resistance (see Supreme Court Decision 2005Do3071, Jul. 28, 2005, etc.).

In light of the health class and general common sense, even if the victim was sexually sexually sexually sexually sexually, it seems not easy for the victim to stop from exercising his/her forced force, an adult male, even if he/she had sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually.

C. The defendant and his defense counsel asserted that at the time of the first sex relationship between the defendant and the victim, the victim was harsh by the victim, etc., and that the defendant did not have sexual intercourse with the victim by force.

In light of the above, the victim did not have any cruel fact first, and there is no reason to support the defendant's assertion, and instead, the defendant stated in the prosecutor's office that "(the victim was only the victim) was first confined (the investigation record No. 114)" (the investigation record No. 114) against the defendant's defense. In addition, it is difficult to accept the defendant's suspicion first of all, which is the age group of his father's father.

D. The defendant and his defense counsel are based on a legal action that the victim did not file a complaint without a long-term request for rescue.

However, the victim stated to the effect that “(sexual relation) consent was not given but it would be a suppression even if the victim did not refuse to do so, and therefore, he did not know that he given up (half).” Also, the victim stated that “When disclosing the fact of damage, it was difficult to see whether the victim was abandoned from his parents and piracy from the Defendant.” Thus, the victim who had continuously been suffering from the same damage for a long time from the Defendant continued to do so seems to have lost the resistance and did not make any specific request for rescue when he was in the state of sporasity.” The victim’s action cannot be understood.

E. As to the details of the instant complaint, the Defendant and the defense counsel asserted that the victim received anonymous letter that the victim’s conduct is not good, and that the victim was forced to bring the victim into the custody of his parents, and that the victim was accused of the complaint.

However, although the victim's anonymous letter is submitted to the investigation records, the victim's accusation of this case is merely merely a side of the defendant's prosecution. As long as the defendant's conviction was judged based on the aforementioned evidence, it is difficult to view the victim's accusation as an important factor in determining rape.

F. The Defendant and the defense counsel have received letters or gifts from the Defendant and the victim, and take them on the basis of a change of the points between the Defendant and the Defendant and the victim.

그러나 피해자는 자신이 먼저 문자를 보낸 적은 거의 없으며 특히 강간을 당한 일요일에는 피고인이 먼저 ‘교회니, 집이니’라고 문자를 하고 이에 대한 답을 하지 않으면 집으로 찾아와서 ‘바람 쐬러 나가자’라고 하였고, 피고인을 따라 나서지 않으면 피고인과 친한 이웃 관계였던 피해자의 부모가 이상하게 여길까봐 피고인을 따라 나갔다고 진술하고 있다. 피고인도 경찰에서 “피해자에게 문자를 보내어 ‘어디냐’고 물은 뒤 답장이 오면 그 곳으로 가 ‘바람 쐬러 가자’며 낙동강변으로 제 차량에 태워갔다”라고 피해자의 위 진술에 부합하는 진술을 한 사실이 있고(수사기록 제73면 경찰피의자신문조서), 그 외에 어떠한 문자를 더 주고 받았는지에 대하여 피고인의 변소를 뒷받침할 사정은 보이지 않는다. 한편 피해자가 피고인에게 몇 번 선물을 하거나 함께 나들이를 간 사실은 인정되나 앞서 본 바와 같이 피해자는 이미 저항의지를 상실한 자포자기의 상태였던 점에 비추어 보면, 이를 근거로 피고인과 피해자를 교제하는 관계로 인정하거나 피해자가 피고인과의 성관계를 동의한 것으로 볼 수는 없고 위와 같은 피해자의 행동들이 이 사건 공소사실의 유죄 여부를 판단하는 데에 중요한 요소가 될 수도 없다.

G. In full view of the above circumstances, the facts charged in the instant case can be found guilty without any reasonable doubt, and the Defendant and the defense counsel’s assertion that seems contrary thereto is rejected.

[Scope of Punishment] Imprisonment 5 years, - June 22

[Determination of Basic Crimes] Violation of the Act on the Protection of Juveniles from Sexual Abuse (Juvenile Rape, etc.) on February 15, 2009

· Type of crime: sex crime group, general criteria, persons aged 13 or older, type 1 (general rape)

· Specially under way: the victims who are vulnerable to the crime, pregnancy,

· Person in General: The use of crimes in the form prescribed by Article 7 of the former Act on the Protection of Juveniles against Sexual Abuse, personal trust relationship, etc.

·General mitigations: the fact that a reasonable amount is paid for compensation for damages, the fact that such amount is not advanced; and

· Scope of recommendations for special adjustment: Aggravation; 3 years of imprisonment; 9 years;

[Concurrent Crimes] Violation of the Act on the Protection of Juveniles from Sexual Abuse (Juvenile Rape, etc.) on January 209

· Type of crime: sex crime group, general criteria, persons aged 13 or older, type 1 (general rape)

· Specially under way: the victims who are vulnerable to the crime, pregnancy,

· Person in General: The use of crimes in the form prescribed by Article 7 of the former Act on the Protection of Juveniles against Sexual Abuse, personal trust relationship, etc.

·General mitigations: the fact that a reasonable amount is paid for compensation for damages, the fact that such amount is not advanced; and

· Scope of recommendations for special adjustment: Aggravation; 3 years of imprisonment; 9 years;

[Scope of the revised recommended sentence] Imprisonment for not less than five years (in consideration of the lower limit of the applicable sentencing, concurrent crimes without sentencing guidelines)

[Determination of Sentence] The above sentencing conditions and age victims have been raped continuously and repeatedly for a long time, and the victim's her guardian is pregnant, and the most serious crime has been committed by rape again at 12 days after the surgery. The victim is judged to have high risk of recidivism in light of the following: (a) the victim is suffering from mental or physical pain due to the instant case; (b) the period and frequency of the crime; and (c) the method and circumstances of the crime.

However, the defendant did not have the same criminal records and has no record of punishment for suspended execution or more, the victim's parents paid 5,000,000 won to compensate for damages, reflects the errors and repents in depth, and considering all the sentencing conditions specified in the arguments of this case, such as the character, conduct, age, environment, and circumstances after the crime, it is ordered as ordered by the court.

1. Summary of the facts charged

(a) Indecent acts by compulsion of minors;

1) 피고인은 2003년 가을경 대구 달성군 화원읍 설화리에 있는 폐 공장 내부에서 피해자 오○○(여, 당시 10세)을 보고 욕정을 일으켜 위 장소로 피해자를 데리고 간 다음 “착하다. 예쁘다.”라고 하면서 피해자의 바지를 벗기고 손으로 음부를 만지고 혀로 핥아 애무하였다.

Accordingly, the defendant committed indecent act against a person under 13 years of age.

2) 피고인은 2005. 3.경 위 폐 공장 내부에서 피해자 오○○(여, 당시 12세)를 보고 욕정을 일으켜 위 장소로 피해자를 데리고 간 다음 피해자의 바지와 팬티를 벗기고 가슴과 음부를 손으로 만지고 혀로 핥아 애무하였다.

Accordingly, the defendant committed indecent act against a person under 13 years of age.

(b) Violation of the Juvenile Protection Act;

On April 14, 2006, at around 14:00 on the date, the Defendant was in mind to rape the victim’s ○○○ (the age of 13 at that time) and carried out a rocketing car owned by the Defendant (vehicle registration number omitted) with the rocketing car in the Gyeongbuk-gun, the Defendant was going to go to the Nakdongdong River (hereinafter referred to as the “Songbuk-gun”).

피고인은 그곳에서 자동차를 세우고 뒷좌석으로 자리를 옮겨 피해자도 뒷좌석으로 넘어오게 한 후 바지와 팬티를 벗기고 가슴과 음부를 손으로 만지고 혀로 핥아 애무하였다.

During that process, the Defendant, by putting the shoulder part of the Victim’s shoulder into two knife and cutting off his shoulder, cut off the Defendant’s knife and pushed off the Defendant, and tightly, she raped once by inserting the sexual shot on the body of the victim (the victim was in a state of completely off boom and panty, so it was not possible to escape out of the vehicle and escape).

2. Determination

A. The facts charged as stated in Article 305 and Article 298 of the Criminal Act are crimes falling under Article 308 of the Criminal Act, which may be prosecuted only upon the victim's complaint under Article 306 of the Criminal Act. Meanwhile, Article 2 (1) 3 of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (amended by Act No. 10261, Apr. 15, 2010; hereinafter the same applies) provides that the above crimes shall be one of sexual crimes, and Article 19 (1) of the same Act shall not be accused upon the lapse of one year from the date when the victim becomes aware of a sex crime, notwithstanding the provisions of Article 230 (1) of the Criminal Procedure Act, unless there are any force majeure reason not to file a complaint.

However, according to the evidence mentioned above, the victim received sex education at the second year of middle school, and the victim's parent became aware of the damage, and each of the above complaints filed on December 7, 2009 can be acknowledged.

A person who has the capacity to file a complaint shall have the capacity to file a complaint, i.e., the capacity to file a complaint. Since the capacity to file a complaint is sufficient to understand the damaged facts and identify the interests in a social life based on the complaint, the capacity to file a complaint is recognized by a person who has the capacity to file a complaint (see Supreme Court Decisions 98Do2074, Feb. 9, 199; 2004Do664, Apr. 9, 2004; 87Do1707, Sept. 22, 1987; 95Do696, May 9, 1995).

Based on such precedents, it is reasonable to view that, at least in light of the victim's age, ability to express opinion, intellectual level, and social adaptation ability, the victim, who was regularly educated, had the meaning of sexual crimes from 2007 and had the ability to file a complaint against such crimes.

In addition, considering the position of the judicial precedents on force majeure cases in which a complaint cannot be filed, it is difficult to dismiss at work, and it does not constitute force majeure cases where a crime of sexual intercourse by force on duty was not filed (see Supreme Court Decision 85Do1273, Sept. 10, 1985). However, while the victim was under the protection and supervision of a mother, etc. who can be deemed the actual perpetrator other than the defendant, it is recognized that the case constitutes a case where force majeure events for which a complaint cannot be filed under the proviso of Article 19(1) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (see Supreme Court Decision 2007Da705, Apr. 25, 2008).

In light of the above, whether there was an inevitable reason for which filing a complaint could not be filed should not be determined simply by examining whether the victim had a superior relationship with the defendant or the victim's fear against the defendant. It should be determined by comprehensively taking into account the following: (a) whether the defendant could actually prevent the victim from filing a complaint; (b) whether the victim was in a situation where the victim could not file a complaint at all without the defendant's help; (c) whether the victim was under the actual supervision of the defendant to the extent that the victim could not have been able to perform external activities against the defendant's will; and (d) whether the victim's intellectual ability, lack of social relationship

In the instant case, even though the victim actually renounced the resistance against the Defendant, the victim did not guarantee the Defendant’s freedom of action at all under the pressure of the Defendant, or the Defendant could have avoided the victim’s complaint at all. Moreover, the victim is not in a situation in which the victim could not file a complaint without the Defendant’s aid, and the victim appears to have entered into a social relationship with the victim through school or church life. Moreover, even if the victim’s parents did not become the party to the actual consultation, it is difficult to deem that the victim could not file a complaint with the Defendant with the parent’s aid. Accordingly, the victim cannot be deemed to have caused force majeure where the victim could not file a complaint.

Therefore, each of the charges of this part of the victim's accusation is unlawful because it is obvious that the one-year complaint period stipulated in Article 19 (1) of the former Act on the Punishment of Sexual Crimes and Protection of Victims Thereof has lapsed, notwithstanding the absence of any force majeure cause which makes it impossible to file a complaint, and each of the charges of this part of the indictment is also filed based on an unlawful complaint. Thus, the prosecution procedure becomes invalid in violation of the provisions of the Act and this part of the indictment is dismissed pursuant to Article 327 subparagraph 2 of the Criminal Procedure Act.

B. The facts charged as stated in Article 10(1) and Article 297 of the Criminal Act are crimes falling under Article 10(1) of the former Act on the Protection of Juveniles against Sexual Abuse (wholly amended by Act No. 8634, Aug. 3, 2007; hereinafter the same) and Article 297 of the Criminal Act, which can be prosecuted only upon a victim’s complaint. The period of filing a complaint is one year as stated in Article 19(1) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof.

Meanwhile, as seen earlier, the victim’s accusation against this part of the facts charged also did not constitute a force majeure event. As such, this part of the complaint is unlawful since it is obvious that the one-year period of complaint under Article 19(1) of the former Act has elapsed, and it is also illegal to have been filed after the lapse of the one-year period of complaint under Article 19(1) of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims, and this part of the indictment is also based on such unlawful complaint. Thus, the prosecution is dismissed in accordance with Article 327 subparag.

[Attachment]

Judges Clinical (Presiding Judge)

1) On March 30, 2010, the written agreement submitted to the court was not written by the victim himself/herself, and the victim confirmed whether the victim himself/herself was not subject to punishment by telephone on the same day. On April 2, 2010, the written agreement submitted by the victim himself/herself, but does not contain an expression of intent that the victim does not wish to be punished by the defendant. Furthermore, on April 7, 2010, the victim stated that the victim is punished by the defendant. Accordingly, in this case, the victim did not express his/her intent not to be punished by the victim. However, the fact that the defendant paid a considerable amount to the parent of the victim is considered as sentencing data.