2020No1272 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape);

Violation of the Act on the Protection of Juveniles against Sexual Abuse (similar sex);

(6) Rape, and Act on the Protection of Children and Juveniles against Sexual Abuse

Anti-purchase, etc., Special Cases concerning the Punishment, etc. of Sexual Crimes

Violation of the Act (Samera, Use and Screening of Cameras)

20 Mano99 (Joint Attachment Orders)

20 Bono41 (Consolidated Probation Orders1)

A

Both parties

Min Il-young (prosecutions, requests for attachment orders, requests for probation orders), Kim Jong-ho (Trial)

Law Firm Hain

Attorney Kim Sung-hun, Park Sang-hoon

Seoul Southern District Court Decision 2020 Gohap125, 2020 Gogo8 (Consolidated), 2020 Report6 (Consolidated) Decided July 3, 2020

December 22, 2020

The part of the judgment below regarding the defendant's case and the part concerning probation order shall be reversed.

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

An order shall be issued to the accused to restrict employment for three years at child and juvenile-related institutions and welfare facilities for persons with disabilities.

The probation order requester shall be ordered to be put on probation for three years, and matters to be observed in the attached Form shall be imposed.

One (No. 10), one (No. 1), one cellular phone (LG) and one (COX) with the main body of the COX shall be confiscated, respectively.

The appeal against the prosecutor's request for attachment order shall be dismissed.

1. Summary of grounds for appeal;

A. The defendant and the person who requested an attachment order, and the person who requested a probation order (hereinafter referred to as the "defendant") appealed that the sentence sentenced by the original trial (eight years of imprisonment, five years of probation order, etc.) is too unreasonable.

B. The prosecutor appealed that the sentence imposed by the original judgment is too unfasible, and that the court below dismissed the request for attachment order.

2. Determination on the grounds for appeal

A. Judgment on the assertion of unfair sentencing (Defendant case part)

① In light of the fact that the crime of this case was committed by the victim, who is only a middle student of 15 years of age at the time, was frightened to sexual trafficking, and the victim took advantage of the victim's response to sexual intercourse, and the defendant repeatedly threatenedly threatened the victim with rape, similarity, photographing cell phones over six years, and the number of times the defendant committed rape by introducing the victim to a third party, the crime of this case is not very good, and the defendant committed an act of increasing sexual humiliation by photographing the victim. ② The defendant did not have clothes or clothes when she comes to meet her distorted sexual desire, or did not have sexual humiliation or clothes her face after his/her oral intercourse or sexual intercourse with the victim, and the defendant did not feel sexual humiliation and her sexual humiliation at the same time. ② The defendant's act of not being able to have sexual humiliation or her sexual humiliation with the victim's view that he/she suffered considerable harm to the victim, such as sexual humiliation or her sexual intercourse with the victim.

① The Defendant’s mistake is recognized, ② there has been no criminal punishment for the past, ③ there have been circumstances to consider the Defendant’s family relationship or growth process; ④ the Defendant and his/her family have continuously prepared some money while making efforts to recover damage to the victim; ④ after the closing of the arguments in the trial, the Defendant agreed with the victim; ⑤ the victim expressed his/her intention not to punish the Defendant; ⑤ the victim reached an agreement with his/her genuine will when he/she could be judged to a considerable extent; ⑤ the application for compensation order was withdrawn; ⑤ the application for compensation order was also withdrawn, and ③ the social relationship of the Defendant is relatively clear.

According to the law and the sentencing guidelines, the sentencing data changed in the appellate court (agreement with the victim, the victim's penalty is not available, etc.) should be taken into account.

In light of the above circumstances, comprehensively taking account of the sentencing factors indicated in the records, such as Defendant’s age, character and conduct, environment, motive, means, and consequence of the crime, circumstances after the crime, and victim’s age, the sentence imposed by the lower court appears to be unreasonable and unreasonable. Therefore, the Defendant’s assertion of unfair sentencing is reasonable, and the Prosecutor’s assertion of unfair sentencing is without merit.

B. Judgment on the part of the claim for attachment order

The court below dismissed the prosecutor's request for an attachment order based on various circumstances as stated in its reasoning. Considering all the circumstances acknowledged by the evidence duly adopted and investigated in the court below and the court below, the court below's judgment is justifiable. In particular, the prosecutor's assertion that ① the criminal records of the defendant, ② the degree of accepting the rape belief of the defendant in the course of the prosecutor's examination is an average of 1.33 points below the average male undergraduate undergraduate (2.70 points), and the risk assessment degree of recidivism of the defendant in Korea (KSORAS) is an intermediate (11 points), and the risk assessment degree of sex offense of the defendant in the Korean sex offender at the risk assessment level (KSL-R), respectively, the mental disorder is low (4 points). ③ The investigator of the probation office also presented the prosecutor's opinion that it is necessary to pay careful attention to the attachment of the electronic tracking device based on the above evaluation result, ④ if this judgment becomes finalized for a long time, and there is considerable change in the situation of the defendant's sex.

C. Determination on the case of probation order claim

As long as a defendant and a prosecutor have lodged an appeal against a prosecuted case, it is deemed that an appeal has been filed regarding a request for probation order pursuant to Articles 21-8 and 9(8) of the former Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (amended by Act No. 16923, Feb. 24, 2020; the Electronic Monitoring Act). Meanwhile, there is no particular reason for appeal regarding a request for probation order in the petition of appeal or the statement of grounds for appeal submitted by the prosecutor or the defendant.

Judgment ex officio is made.

According to Articles 21-8 and 9(5) of the Electronic Monitoring Act, the judgment on a probation order case shall be sentenced simultaneously with the judgment on a specific criminal case. Thus, in a case where the judgment on a case involving a probation order is reversed illegally, the case of probation order to be tried together with the judgment on the case where the judgment on a case involving a defendant is reversed, and at the same time, the case of probation order to be sentenced shall be reversed (see Supreme Court Decision 2011Do453, 2011Do12, Apr. 14, 201). As seen earlier, as long as the part of the judgment of the court below on the defendant case should be reversed on the ground of unfair sentencing

3. Conclusion

As the Defendant’s argument regarding unfair sentencing among the part of the judgment below on the Defendant case is well-grounded, the Defendant case among the judgment below should be reversed. Accordingly, pursuant to Article 364(6) of the Criminal Procedure Act and Article 35 of the Electronic Monitoring Act, the part on the Defendant case and the part on the probation order claim are reversed, and the following is again decided after pleading. The prosecutor’s appeal regarding the part on the request for attachment order is without merit, and thus, it is dismissed in accordance with Article 364(4)

Grounds for a new judgment: The defendant's case and probation order case part]

Criminal facts, facts of reasons for probation order and summary of evidence

Criminal facts recognized by the original court, facts constituting the cause of probation order and summary of evidence are the same as the corresponding column of the original judgment, and thus, they are cited in accordance with Article 369 of the Criminal Procedure Act and Article 35 of the Electronic Monitoring Act.

Application of Statutes

1. Relevant Articles and choice of punishment on the facts constituting the crime;

Article 13(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the purchase of sex to children and juveniles, the choice of imprisonment), Article 7(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the occupation of rape to children and juveniles, the choice of limited imprisonment), Article 7(2)1 of the Act on the Protection of Children and Juveniles against Sexual Abuse (the similarity to children and juveniles), Article 297 of each Criminal Act (the occupation of rape in the direction of Article 4-2), Article 297 of each Criminal Act, Article 297 of each Criminal Act, Article 34(1) of the Criminal Act (the occupation of rape in the door of Article 4-4(2) of the former Act on the Punishment, etc. of Sexual Crimes (amended by Act No. 15977, Dec. 18, 2018); Article 14(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 15975, Apr. 16, 2019)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the aggravation of concurrent crimes with punishment provided for in the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape) as stated in Article 2(a) of the Decision with the most severe criminality)

1. An employment restriction order;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 15352, Jan. 16, 2018); Article 56 (1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 15452, Mar. 13, 2018); Article 2 of the Addenda to the Act on Welfare of Persons with Disabilities (Amended by Act No. 15904, Dec. 11, 2018); Article 59-3 (1) of the Welfare of Persons with Disabilities Act; Article 56 (1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 1738, Jun. 2, 2020); the main sentence of Article 59-3 (1) of the Welfare of Persons with Disabilities Act

1. Articles 21-3 (1), 21-2 subparagraph 1, 21-4 (1) and (2), 9-2 (1) 3, 4, and 5, and 21-8 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (Amended by Act No. 16923, Feb. 24, 2020);

1. The proviso to Article 21 (2) of the Act on the Protection of Children and Juveniles against Sexual Abuse, the proviso to Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (this shall not apply where an order is issued to a defendant on probation to complete a sexual assault treatment program due to the matters to be observed, and the order is issued separately

1. Article 47(1) and Article 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from Disclosure Orders and Notification Orders; the proviso to Article 49(1) and the proviso to Article 50(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 16622, Nov. 26, 2019); (b) appears to have an effect of preventing recidivism by registering personal information of the defendant, completing sexual assault treatment programs, and probation orders; (c) the effect of preventing sexual crimes that can be achieved by the defendant compared to the disadvantages and anticipated side effects that the defendant would suffer due to disclosure orders and notification orders is relatively inappropriate; and (d) other various circumstances such as the defendant’s age, occupation, family relationship, etc., it is determined that there are special circumstances that the defendant’s personal information should not be disclosed or notified.

1. Confiscation;

Article 48(1)1 of the Criminal Act, Reasons for sentencing

Article 2-A. Based on the reasons stated in Paragraph 2-A., the sentence like the order shall be imposed (It is clear that there is a favorable condition for the defendant, but there is an unfavorable condition for the defendant, so the defendant shall be selected by considering all such circumstances).

Registration and submission of personal information

Where a conviction becomes final and conclusive against a defendant, 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.

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

The presiding judge, judge and subordinate judge;

Judges Choi Jong-hee

Judges Cho Young-young

1) The case requesting a compensation order (2020 early 297) was withdrawn after the closing of argument in the appellate trial.

A person shall be appointed.