(영문) 서울중앙지방법원 2019.5.15.선고 2019고정6 판결

Defendant shall be punished by a fine of KRW 4,000,000. Where the Defendant does not pay the above fine, the Defendant shall be confined in the workhouse for the period calculated by converting KRW 100,000 into one day.

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

In order to order the provisional payment of an amount equivalent to the above fine.

The defendant shall be ordered to place an employment restriction on children, juvenile-related institutions, etc. for two years.

Reasons

Criminal History Office

On October 29, 2018, from around 07:42 to 07:50, the Defendant committed an indecent act by committing an indecent act on the victim’s bridge and sexual organ by holding the victim D (2*) sit in front of the victim’s left hand, and holding the victim D (2*) sit in front of the victim’s side.

Summary of Evidence

1. Legal statement of witness D;

1. Investigation report (to be accompanied by CCTV screen images in the C private rain or a resting room), investigation report (a suspect AC shooting or CCTV counter investigation);

1. CCTV video CDs and CCTV-cap photographs;

Application of Statutes

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

Article 11 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Act

1. Order to complete programs;

Article 16(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Determination on the assertion by the Defendant and his/her defense counsel under Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

According to the evidence duly adopted and examined by this court, it cannot be deemed that the victim's implied consent was made to the defendant's delivery of the victim's bridge and sexual organ, and the defendant committed an indecent act as stated in the crime and committed an indecent act. Thus, the defendant and his defense counsel's assertion is without merit.

1. The victim stated in the investigative agency and the court that he was unable to know that he was able to remove a small theater at the latest before the instant case at the latest, and that he was able to drink up to 1 market price of the new wall, and that he was locked at approximately 2-3 hours prior to the occurrence of the mobile phone, and that he was unable to know that he was locked at the time, because he was locked.

2. The CCTVs of the instant rain or male resting room from 07:42 on the day of the instant case to 07:50, the following pages are taken.

A. At around 07:40:50, the Defendant entered the rest room in which the victim is aboard, and knife the victim’s surrounding part, and knife the victim’s head, and knife the victim’s head.

나. 07:41:44경 피고인은 피해자의 다리를 만지면서 무슨 말을 하자, 피해자는 깜짝 놀란 듯 상체를 약간 일으켜 피고인에게 무엇인가 말을 하고는 다시 같은 자세로 잠을 잔다.

C. From that time until 07:45:25, the Defendant was living around, as the victim’s legs and buckbucks are known, and the victim continues to do so without movement. In this case, the Defendant’s fault is located near the victim’s sexual flag or spuck, where the victim is sprinked.

D. Around 07:45:25, the Defendant brought bits, covered the body of the victim, and continuously acted below the body of the victim or down the victim's booms. The victim has changed the attitude of the arms around 07:46:04 but continues to have the same age.

E. 07:46:30 The Defendant committed an act of cutting down the body of the victim by cutting off the body of the victim into several sides, and at this time, the victim was locked, and there was no movement in the same body again. Around 07:46:40, the Defendant took the same action to see the victim's view, to search whether the victim was self-employed, such as walking down the victim's horse and cutting down the victim's timber, etc., and the victim still remains the same.

G. At around 07:49.10, the Defendant: (a) changed the victim’s attitude that was unsatisfed, and took the same action to look at the victim’s sexual organ from around 07:49:50 to around 07:50. H. Around 07:50 to around 50:30, the custodian entered the rest room and went out of the rest room, and the Defendant went out of the rest room and went out of the manager. The Defendant took out what is the victim, and the victim’s relative and other people who were in the rest room seem to have come out of the lock.

3. According to the statements of the victim and CCTV images, the victim was deep diving at the time when the victim was temporarily set up in the room. At around 07:41:44, the victim was locked due to the defendant at around 07:45:25, and from around 07:5:5 to 07:5:30,00, in particular, from around 07:49:10 to around 07:49:10, the defendant covered the victim's body and made an interview with the victim's will, and commits an indecent act against the victim, it is only five minutes, and it is reasonable to view that the victim's body was in part of the victim's body to the extent that the person can be ordinarily allowed for the person. Accordingly, even if the victim was still locked or even if there was a little consciousness, it is at the time of diving.

It can not be said that the manager has correctly perceived B, and only after entering the resting room, the manager has broken down.

4. In particular, in light of the age, relationship, place of indecent conduct, etc. of the victim and the defendant, it cannot be deemed that the victim explicitly and implicitly consented to the defendant's unloading of his/her will from the rain or the resting room where many people live together and committing an indecent act on his/her sexual organ.

The degree of indecent conduct on the grounds of sentencing is very serious. Nevertheless, the Defendant was unable to take advantage of the victim. Nevertheless, the Defendant made a vindication that the victim seems to enjoy, and does not reflect his/her mistake. Provided, That the Defendant has no record of having been punished for the same kind of crime or of having no record of having been sentenced to suspended execution or heavier punishment for the same crime, in addition to the punishment imposed twice before, shall be considered as favorable to the Defendant. In addition, the Defendant’s age, character and behavior, environment, and circumstances after the crime, etc. shall be comprehensively taken into account all the sentencing conditions

Registration and submission of personal information

When a conviction of a criminal facts in the judgment becomes final and conclusive, the defendant is a person subject to registration of personal information under Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and is obligated to submit personal information to the competent agency pursuant to Article

Exemption from an order to disclose or notify personal information

In light of the fact that the registration of personal information and order to complete a program against the accused appears to have an effect on the prevention of recidivism of a sexual crime to a certain extent, the Defendant’s age, occupation, risk of recidivism, contents and motive of the crime, method and consequence of the crime, severity and side effect of the crime, disclosure order, notification order, employment restriction order, the degree and anticipated side effects of disadvantage and side effects of the Defendant’s suffering, the preventive effect of the sexual crime subject to registration which may be achieved therefrom, and the effect of the protection of the victims, etc., comprehensively taking into account the following factors: Article 47(1) and Article 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes; Article 49(1) proviso of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 50(1) proviso of the Act on the Protection of Sexual Crimes;