2011Gohap586 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.)

Act on the Punishment of Sexual Crimes and Protection, etc. of Victims

2. Special cases concerning the punishment, etc. of sexual crimes

Violation of the Law (Housing Rape, Rape, etc.)

Violation of the Act (Rape, etc. of Juveniles), child or juvenile sex reports;

Violation of the Family Protection Act (Rape, etc.)

Violation of the Family Protection Act (Juvenile Rape, etc.), theft, and attachment order

201Jacciny36 (Joint Attachment Orders)

EO

Maddenwons (prosecutions) and Park Jin-Jins (Trial)

Law Firm Magdae (Attorney Lee Han-soo, Counsel for plaintiff-appellant)

January 17, 2012

A defendant shall be punished by imprisonment for three years.

The disclosure of information on the accused shall be made public through the information and communications network for three years (Provided, That the summary of the sex offense shall be limited to the crimes listed in the judgment No. 1 and No. 2).In the facts charged in the case, the accused is acquitted.

The request for the attachment order of this case is dismissed.

Criminal facts

1. Crimes of indecent act by compulsion or attempted rape;

The defendant and the person subject to the attachment order (hereinafter referred to as the "defendant") were well known of the inspection of 000 dong 00 in Yangsan-si.

A. Around July 2009, the Defendant: (a) reported the appearance of the victim, who is a parent of sexual ○○○○○’s believers, the Defendant committed an indecent act by forcing the victim by putting the victim’s arm’s length with both hands and hands over; (b) under the influence of her arms, she would be under the influence of alcohol; (c) by putting the victim’s arms into her hand, she would be under the influence of alcohol; and (d) by putting the victim into her arms, the Defendant committed an indecent act by forcing the victim by force.

B. On July 2009, the Defendant told ○○○○, by telephone, called “the victim’s lecture room was hume,” and let the victim enter the victim into the front parking lot of the OOO ○○○ apartment located in the 00-dong Busan Northern-dong, and had the victim take aboard the victim at the top of the car operated by himself/herself, and had the victim take a way to rape the victim while he/she was sexually sexually humeed.

The Defendant: (a) was on a tideland in the vicinity of ○○○○○○, Ulsan-gun, Ulsan-gun; (b) laid down the said car in his hands, laid down the safety belt the victim was sucked behind the chair; (c) forcedly put the victim’s arms by hand; (d) forced the victim’s arms, cut off the victim’s arms, cut off his arms, cut off the victim’s arms, and tried to engage in sexual intercourse with the victim by “one defect,” and putting the victim’s chest fast and her chest on his hand. However, the Defendant attempted to engage in sexual intercourse with the victim’s chest while resisting the victim’s body. From around August 2009, the Defendant committed an indecent act in which the victim ○○○ was able to report the television by his scambling at the victim’s hand, making the victim’s scambling.

D. Around August 2009, the Defendant tried to engage in sexual intercourse with the victim by putting the victim's arms in a separate room of the victim's ○○○○○○○, where the victim was able to report the television by getting the her to her sofly, and entered into the part of the victim covered by the victim so that the her chest is revealed, her breast is cut off by hand, her breast is cut off by hand, her breast is cut off by her chest, and her chest is "blad for her early use", and her arms were fladd by her arms, suppressions the victim's arms into the victim's arms. However, the Defendant attempted to engage in sexual intercourse with the victim in the victim's sexual organ by hand.

2. Rape;

At around 04:00 on July 30, 2009, the Defendant knew of the fact that he was diving without his guardian in the above ○○○○○○○ on the same day, and had sexual intercourse with the victim by taking advantage of the fact that he had sexual desire to commit rape by intrusion on an essential bond scheme, opening and opening a visit without correction, and trying to get out of the victim’s neck who was diving from the wall by hand. The Defendant got off the victim’s shoulder from the locking or her humb. The Defendant: (a) got off the breast so that the breast was revealed; (b) forced the victim to have his clothes humbed up up to his clothes; and (c) forced the victim to have sexual intercourse once.

3. Larceny;

Around April 2007, the Defendant: (a) at the store of relics in Yangsan-si, Yangsan-si, the victim’s ○○○○○○○○○○○○ (○○○○○○○○○○○○) opened a 10-kick-kick-kick-kick-kicked work, the market price of which is equivalent to KRW 30 million; (b) one (c) one (c) one (d) one (d) one (d) one (d) one (d) one (d) one (d) one (d) one (d) one (d) one (d) one (d) one (d) one (d) one (d) one (d) one (d) one (e.g., the market price of which is at least KRW 500,000,000, the market price of which is at least KRW 200,000; and (c) one (d) one (d) one (d) one (d) one (e.g) one) one (1) one (d) one) one (d) one (3) one) one (d) one) one (h) one (3) one (h.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of the witness ○○;

1. Partial statement of the witness ○○○;

1. Each police officer's statement concerning 00;

1. Records of seizure and the list of seizure;

1. Each report on investigation;

1. Photographs of seized articles;

Judgment on the argument of the defendant and defense counsel

1. The assertion;

① In relation to the criminal facts No. 1-A, the defendant was using the Internet, and did not commit any act, such as forcing him/her to wear the chest, although he/she was using the victim’s chest, the defendant did not commit any act. (2) In relation to the criminal facts No. 1-B, the defendant did not commit rape, such as drinking the victim’s chest and part of his/her chest, and he/she did not take the part in the victim’s chest, but he/she did not commit any rape. (3) In relation to the criminal facts No. 1-C. 1-D, even though the defendant was raising the victim, he/she did not have taken part in the victim’s breast, and the defendant did not commit any rape. (4) In relation to the criminal facts No. 1-D, the defendant did not commit any rape. (5) In relation to the criminal facts, the defendant did not commit any rape.

2. Determination

According to the above evidence, although the victim made a somewhat inaccurate and consistent statement about the date and time of the crime after the lapse of the time of the crime, the victim made a consistent and detailed statement about the place, situation, and behavior of each of the above crimes from the investigative agency to the court. This is about the content that is not known without direct experience. The victim's statement that does not speak to ○○○○ for the defendant's crime is an indecent act against the defendant after the crime of rape in the last crime, which is the crime, reduced the amount that the defendant made an indecent act against 00 after the crime of rape in the first place, but it cannot be seen that there was a lack of credibility or consistency in the victim's statement concerning the crime of rape in light of the fact that it was difficult to view that the victim's statement was made after the crime of rape in the first place on July 25, 201, and that it was difficult to find the victim's statement that there was an indecent act of 00 after the victim's age, sex ○ and the defendant.

Application of Statutes

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

Article 7(2) of the former Act on the Protection of Juveniles against Sexual Abuse (amended by Act No. 9765 of Jun. 9, 2009; hereinafter the same shall apply), Article 298 of the Criminal Act, Article 7(5) and (1) of the former Act on the Protection of Juveniles against Sexual Abuse, Article 297 of the Criminal Act, Article 7(1) of the former Act on the Protection of Juveniles against Sexual Abuse, Article 297 of the Criminal Act, Article 329 of the Criminal Act (amended by Act No. 10259 of Apr. 15, 2010), Article 329 of the Criminal Act (amended by Act No. 10259 of Apr. 15, 2010)

1. Aggravation for concurrent crimes;

The punishment provided for in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment provided for in the former Act on the Protection of Juveniles from Sexual Abuse, concerning Rape with the largest penalty and the nature of the crime)

1. Discretionary mitigation;

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

1. An order for disclosure;

Article 3(4) of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 9765, Jun. 9, 2009) (wholly amended by Act No. 10391, Jul. 23, 2010); Article 38(1)1 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 9765, Jun. 9, 2009)

[Scope of Punishment] Imprisonment with prison labor of two years and six months to 11 March

[Determination of Punishment] Sex Offenses, General Criteria, Rape (subject to 13 years of age or older), Type 2

[Special Sentencing] Special Mitigation Elements: In the case of using deceptive schemes or force other than assault and intimidation;

[Scope of Recommendation] Imprisonment of 3 years to 5 years (Discretionary)

[The scope of revised recommended punishment] From 3 years to 3 years [the scope of punishment shall be added to 1/2 and 1/3 of the upper limit of the scope of punishment for concurrent crimes according to the criteria for handling multiple crimes, and since there are concurrent crimes without sentencing guidelines, only the lower limit of the scope of punishment for such concurrent crimes shall be considered];

[General Adopted] - General Heavy Elements: In the event of committing a crime against juveniles, the use of personal trust relationship

[Decision of Sentence] The crime of this case for three years is committed by the defendant as a son of the believers that the defendant is going to attend the course of his knowledge, and is committed by indecent act by force, rape, rape, or attempted rape, and the nature of the crime seems to be inferior. The mental shock and suffering of the victim would be difficult to recover from the crime of this case, and there is no record of criminal punishment in addition to the punishment of fines three times due to the crime of violation of the Road Traffic Act, such as the crime of this case committed by the victim, and the fact that the victim of the larceny does not want the punishment of the defendant, the crime of larceny is committed by the victim, the victim of the larceny does not want the punishment of the defendant, the defendant deposited KRW 10 million for the purpose of the victim's lectures, and all other factors of punishment including the defendant's age, character and behavior, motive or circumstance, etc. shall be determined as per the order.

Registration of Personal Information

Where a conviction becomes final and conclusive on the criminal facts described in paragraphs (1) and (2) of the judgment against the defendant.

Since a person subject to registration of personal information is a person subject to registration pursuant to the main sentence of Article 32 (1) of the former Act on the Protection of Juveniles against Sexual Abuse, he/she is obligated to submit personal information to the competent agency pursuant

In the acquitted part of the violation of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof

1. Summary of the facts charged

The Defendant knew the fact that the victim sexual 00 (math, 51 years old), who is a 000 believers, was engaged in mixed natural chlosting operations at the victim’s villa, and had a sexual desire to commit rape.

On August 16, 200, the Defendant opened a door to the dwelling space located on the second floor of the above villa, which was not corrected for the first time at around 16:00, and found the victim who is engaged in mixed natural spaming operations at the above villa, and then drawn the victim by hand. The victim resisted against the victim, leaving the victim's left part by hand so far as the victim gets flick up, putting the left part into the floor of the vehicle by walking three times the spon on the left part of the spon, leaving the spon of the spon, cut off the spon, cut off all the spon to the spon, and rape the victim once, and thereby, inflicted an injury on the victim incurred for the left part of the spon and the left part of the treatment days.

2. Determination

As evidence consistent with this part of the facts charged, the victim's investigative agency and this court are the only statements to the victim that the victim suffered bodily injury by rape, such as the statement in the facts charged, will examine the credibility of the above statements.

The following circumstances acknowledged by the record: (a) the Defendant and the victim have been aware of about 20 years ago; (b) the victim frequently visited the ○○○○; and (c) the victim visited the ○○○○○ before about five years prior to the time when the victim was her, the Defendant frequently visited the above separate gate in Ulsan-gun; (d) around springing around 2008, the Defendant made the Defendant keep the sick and scambling, etc. under paragraph (3) of the criminal facts; and (e) the Defendant maintained close relation between the Defendant and the victim, such as having her panty gifted to the Defendant and gifted to the Defendant, etc., made by the Defendant a her scam, and there has been no long years thereafter.

8. In light of the fact that ○○○○○○○○○, a victim did not go through a 4-day golf trip with the Defendant and ○○○○○○○○○○○○, even after the fact that she frequently visited 00 days with the Defendant, provided meals or finites with the Defendant, and that the victim forced her husband or the neighbors to threaten her husband to know rape. However, the victim first made a statement that she would be aware of rape of the victim at the time of the police investigation on September 2008 (in 62 pages of the investigation record, this is the time after Jeju-do travel) that she did not go through the Defendant’s intimidation. The victim did not appear to have made a statement to the effect that ○○○○○○○○○○○○○○ was rape, which was 60 billion after she was rape, and that she did not have any consistency with the Defendant’s new statement that she did not appear to have been able to know that she had been rape by the police investigation agency.

The burden of proof for the criminal facts prosecuted in a false criminal trial is to be borne by the prosecutor, and the conviction shall be based on the evidence of probative value, which makes the judge sure that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is a suspicion of guilt against the defendant, the interest of the defendant shall be judged as the benefit of the defendant. In this case, in light of the above overall circumstances, it is difficult to view that this part of the facts charged is proven beyond a reasonable doubt.

3. Conclusion

Thus, this part of the facts charged is judged not guilty in accordance with the latter part of Article 325 of the Criminal Procedure Act because there is no proof of crime.

Judgment on the request for attachment order of a location tracking device

1. A summary of the cause of claim;

As indicated in the facts constituting a crime, the Defendant committed a sexual crime against a person under 16 years of age, and committed a sexual crime twice or more, and is recognized as a habit of committing a sexual crime, and as such, there is a risk of repeating a sexual crime, the Defendant is subject to an order to attach an electronic tracking device of this case pursuant to Article 5(1)3 and 4 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders.

2. Determination

Article 5(1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders provides that the possibility of recommitting a sexual crime is insufficient only to repeat the crime, and that there is a considerable probability that the person who requested the attachment order may escape legal peace by committing a new sexual crime in the future. The risk of recidivism shall be determined objectively by comprehensively assessing all the circumstances, such as the occupation and environment of the person who requested the attachment order, the behavior before the crime, the motive and means of the crime, the circumstances after the crime, and the situation after the crime, etc.

In full view of the following facts: (a) the Defendant has no record of punishment for a sexual crime other than the above criminal facts; (b) according to the risk assessment of a sexual offender in Korea (KSOAS) against the Defendant; and (c) the risk assessment of a sexual offender in Korea against the Defendant; and (d) the decision on the attachment of an electronic tracking device requires careful judgment; (b) it is difficult to conclude that the Defendant has a habit of sexual assault or a risk of recommitting a sexual crime; and (c) there is no other evidence to prove otherwise.

3. Conclusion

Therefore, the request for the attachment order of this case is dismissed pursuant to Article 9 (4) 1 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders.

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

Judges of the presiding judge, Kim Dong-ho

Judges Lee Jae-chul

Judges Park Jong-hee