2013Gohap226 Minor Rape

2013Gohap255(Consolidated) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (obscenity)

Production, Distribution, etc.)

2013. Consolidated Attachment Order (Consolidated)

A

Kim Dong-dong (Public Prosecution) and Lee Young-young (Public trial)

Law Firm B

Attorney in charge C, D, E

February 21, 2014

A defendant shall be punished by imprisonment for six years.

Seized evidence 1 to 3 shall be confiscated from the defendant.

The information about the accused shall be disclosed and notified through the information and communications network for six years (However, the summary of the sex offense disclosed and notified shall be limited to the crimes listed in paragraphs 1 and 2 of the ruling).

To the person subject to the request for attachment order, the attachment of an electronic tracking device shall be ordered for six years.

Matters to be observed, such as the attached Form, shall be imposed on a person who requests an attachment order during the period of attachment.

Of the facts charged in the instant case, each of the offenses of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse Nos. 3 and 4 of the attached list of crimes (production, distribution, etc. of obscene materials) shall be acquitted, respectively.

Criminal facts

The defendant and the respondent of the attachment order (hereinafter referred to as the "defendants") have access to female students through smartphone hosting programs while working as the 2013 Highest 226 Highest 2013 Highest 2013 High Highest 2013 Highest 201 and the respondent of the attachment order (hereinafter referred to as the "defendants").

1. On August 3, 2013, at around 20:42, the Defendant: (a) connected to the Stockholm, a smartphone hosting program; (b) sent the victim G (the 12-year old-old-old-year-old-year-old-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-based-type-type-based-type-based-type-based-type-based-type-based-based-based-type-based-based-based-type-based-based-type-based-based-based-based-based-type-based-based-based-type-based-based-based-based-type-based-based-based-based-based-based-based-based-based-based-based-based-type-based-based-based-type-based-based-based-based-based-based-based-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type---type----------------------

이어서 피고인은 2013. 8. 6. 13:00경 충북 청주시 H에 있는 중학교 후문에서 피해자를 만나 피해자와 함께 피고인의 승용차로 충북 증평군에 있는 상호를 알 수 없는 무인모텔로 이동한 후 위 모텔 번호를 알 수 없는 방실에서 피해자에게 "성기를 핥아 달라"라고 이야기하여 피해자로 하여금 피고인의 성기를 빨게 하고, 피해자와 1회 간음하였다.

2. On August 2013, the Defendant had access to the “Stockholm-gu Creation, a smartphone hosting program,” and sent the victim J (the 12 years of age) a message to “I am 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 her her her her her her her shes

Then, at around 11:00 on August 2013, the Defendant had sexual intercourse with the victim in a room where it is impossible to identify the number of the Defendant’s passenger car after having met the victim or moved the victim to the Least-gun K in Chungcheongnam-dong, Chungcheongnam-dong, Chungcheongnam-gu, Chungcheongnam-do, Chungcheongnam-do, and then having sexual intercourse once with the victim in a room where it is impossible to identify the number. Accordingly, the Defendant had sexual intercourse with the female under the age of 13 over two times.

3. At around 10:10 on September 11, 201, the Defendant taken a picture of a camera screen with a female juvenile under the age of 19, who was known through the Internet hosting site at a mutually unfolding guest room in which it is impossible to ascertain whether the Defendant was Cheongju-si, and stored the above video file in the Defendant’s computer, as well as from July 27, 2010 to November 20, 201, the Defendant stored the video file in the Defendant’s computer, respectively, by photographing each page of the pages where the sexual intercourse and similarity with the juveniles are conducted, as described in each of the items above, from around July 27, 2010 to November 20, 2011.

Accordingly, the Defendant produced child and juvenile pornography on six occasions.

Summary of Evidence

1. Defendant's legal statement;

1. Records in each protocol to G and J;

1. A report on analysis of digital evidence and an investigation report (report attached to file analysis data);

1. The content of the Kakao Stockholm dialogue, investigation report (the content of the Kakao Stockholm dialogue), Chapter DVD 3 stored in the outer frid of the Defendant’s computer; and

1. Each existing body of the Republic of Korea, U.S.B, and Switzerland, seized;

1. The risk of recidivism of a sexual crime as indicated in the judgment: (a) the following circumstances recognized by the evidence and the statement prior to the request for an attachment order; (b) the Defendant, an elementary school teacher, has sexual intercourse with a female child under 13 years of age by allowing the female child under 13 years of age to have sexual impulses at least twice in a short period; and (c) the Defendant has sexual intercourse with the female child under 13 years of age by using them; and (b) the Defendant, other than each of the instant crimes, has sexual intercourses or sexual acts through the Internet or smartphone display system repeatedly over several occasions; (c) the assessment method of risk of recidivism of Korean sex offenders (K-SORS) applied to the Defendant, but it appears that there is no possibility that the Defendant might have sexual intercourses with the female sex offender, such as the Defendant’s age, and it appears that there is no possibility that the latter might have sexual intercourses with his/her own will to return to the society, and that there is no possibility that the latter might have sexual intercourses and sexual humiliations.

Application of Statutes

1. Article applicable to criminal facts;

Articles 305 and 297 of the Criminal Act (a point of rape of a minor), Article 8(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11002, Aug. 4, 2011; hereinafter the same shall apply) (a point of producing child or juvenile pornography, and choice of limited imprisonment)

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 concerning deemed rape of a minor in relation to the heavier punishment and imprisonment with prison labor]

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. An order for disclosure;

Article 49(1)1 of the Act on the Protection of Children and Juveniles against Sexual Abuse (limited to crimes No. 1 and 2 in the market) 1. An order to notify

Article 50 (1) 1 of the Act on the Protection of Children and Juveniles against Sexual Abuse (limited to crimes No. 1 and 2 in the market); 1. Attachment order

Article 5(1)3 and 4, and Article 9(1)2 and (2) of the Act on Probation, Electronic Monitoring, etc. of Specific Criminal Offenders

1. Imposition of obligations;

Article 9-2 (1) 4 of the Act on Probation, Electronic Monitoring, etc. of Specific Criminal Offenders

Where a judgment of conviction against a defendant subject to registration and a defendant subject to registration becomes final and conclusive, 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 with respect to each of the crimes listed in Article 3 of the judgment, and is obligated to submit personal information to the head of a correctional institution pursuant to

1. Summary of the assertion

The Defendant, under an agreement with women aged 13 or older, taken the face of sexual intercourse for the purpose of simple possession and custody without a consent from the other party in the course of sexual intercourse with the other party and without a purpose of distribution and distribution. Thus, it does not constitute “production of child or juvenile pornography” as defined in the Act on the Protection of Children and Juveniles against Sexual Abuse.

2. Determination,

A. The legislative purpose of punishing ‘child or juvenile pornography’ under the Act on the Protection of Children and Juveniles against Sexual Abuse is to protect children and juveniles from their sexual character at the level of public morals or social ethics. As such, the commercialization of children and juveniles, namely, commercial sex acts and brokerage activities for children and juveniles, production and distribution of obscene materials using children and juveniles, and sexual exploitation against children and juveniles have emerged as serious social issues, such as protecting and remedying children and juveniles, and protecting their human rights as well as protecting children and juveniles as healthy members of society, it is necessary to strengthen punishment for acts of producing obscene materials such as films, videos, computers, and videos, which are the representative cases of sexual exploitation for children and juveniles, by using such media. It is also necessary to protect children and juveniles as well as to protect children and juveniles from such unlawful acts, and to protect children and juveniles from such unlawful acts by using such media as obscenity, as well as to protect children and juveniles from such unlawful acts, and to protect children and juveniles from such unlawful acts as obscenity, as well as to protect children and juveniles from such unlawful acts.

In light of the legislative purpose of the Act on the Protection of Children and Juveniles against Sexual Abuse and the legal interest protected by the Act on the Protection of Children and Juveniles against Sexual Abuse, insofar as the production constitutes “child or juvenile pornography” as provided by Article 2 subparag. 5 and No. 4 of the former Act on the Protection of Children and Juveniles against Sexual Abuse, it cannot be said that the production process does not constitute “production” solely on the ground that the participation or consent of the child or juvenile involved in the production process, or the production of sex-related pages made under the agreement with the subject is made. Furthermore, as long as it is not easy to exclude the possibility of distribution due to the development or change of the situation after production in the case of “child or juvenile pornography produced by using a video product or communication medium, such as a computer,” barring special circumstances, it cannot be said that the production does not constitute “production” solely on the ground that there is no record of distribution or distribution after taking them.

B. In light of the above legal principles, the Defendant contacted with female juveniles only through smartphone hosting display for the purpose of sexual conduct. The Defendant used sexual intercourses with female juveniles by using sexual humiliation, mental or physical micro-consceptivity, etc., and the Defendant’s appearance did not have little pictures, and used it as a means to satisfy his/her sexual desire while photographing and keeping the pictures by expanding the body parts of female juveniles’ sexual intercourses or sexual intercourses with them. It is reasonable to view that these acts of the Defendant constitute the category of sexual exploitation of the juveniles who intend to regulate the crimes of the Act on the Protection of Children against Sexual Abuse (production, Distribution, etc. of obscenity).

Furthermore, since the defendant and the other female juveniles are not in a relationship with smartphone hosting and have no trust relationship, it is difficult to actively restrain the defendant, who is a man with more age, even though they knew that the defendant was taken, even though they did not actively refrain from taking pictures, it is difficult to view the defendant's genuine consent to take pictures. The defendant made a statement that the other female juveniles who appeared in the video taken by the defendant were not in a genuine relationship with the other female juveniles at the time of the police investigation that they sought consent while photographing the images of the other female youth, and that the defendant did not appear in a doubtful relation with the other female juveniles, and thus, it is doubtful whether the other female juvenile's consent was seriously sought prior to taking pictures (the G, the victim of rape of the minor of the instant case, was the victim of the sexual agenda of the instant case, and the defendant did not want to take pictures from the police station prior to taking pictures to the victim's cell phone, but the defendant did not appear in a genuine relation with the other female juveniles, and it is difficult for the other party to take pictures.

C. Therefore, the defendant's act of photographing sexual acts with many female juveniles who have met only once for the purpose of sexual acts constitutes "production of child or juvenile pornography" and the defendant's assertion is without merit.

1. Reasons for sentencing: Imprisonment with prison labor for not less than five years nor more than 45 years;

2. Scope of the sentence recommended on the sentencing criteria: Imprisonment with prison labor for not less than five years (basic crimes), minor's constructive rape (Crime of No. 1 in any sale);

○ Determination: Sex crimes, general standards, sex crimes subject to the age of 13, constructive rape;

○ Decision on the recommended territory: Basic territory

○ Scope of Recommendation: Imprisonment for two years to six years;

○ General person: Reduction element - Serious reflector, no record of criminal punishment

[Concurrent Crimes] Minor Rape (Crime No. 2 in the Market)

○ Determination: Sex crimes, general standards, sex crimes subject to the age of 13, constructive rape;

○ Special Convicts: Reduction elements - Non-Punishments

○ Determination of the recommended territory: Reduction Area

○ Scope of Recommendation: Imprisonment for a year and six months to three years

○ General person: Reduction element - Serious reflector, no record of criminal punishment

[Scope of the revised sentencing] Imprisonment for not less than five years (in the case of concurrent crimes in which the sentencing guidelines have not been set and in the former part of Article 37 of the Criminal Act, only the lower limit of the sentencing guidelines shall be applied according to the sentencing guidelines, but because the lower limit of the sentencing guidelines is lower than the lower limit of the statutory applicable sentencing guidelines, it shall be in accordance

3. Determination of sentence: Six years of imprisonment; and

Although the Defendant, as an elementary school teacher, committed each of the crimes of this case with a view to guiding, protecting, and leading the sound sexual values of children and juveniles, each of the crimes of this case was committed. In particular, each of the crimes of rape by minors of this case was committed by inducing the victims who are 12 years old by using smartphone hosting method solely for the purpose of sexual acts, and sexual intercourse with them by inducing the victims who are 12 years old by using it, and it is very poor in the nature of the crime. The victims of this case appear to have suffered considerable mental shock, such as leaving Korea because they face difficulties in daily life due to this case, and leaving Korea. The crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials) has been committed against the Defendant’s own sexual desire to take advantage of his or her own sexual desire to have his or her own sexual desire to take advantage of his or her own sexual desire to have his or her own sexual desire to use it, and thus, it is extremely distorted that the Defendant’s sexual desire to use of the Defendant’s.

However, comprehensively taking account of the following factors: (a) the Defendant’s recognition of all of the instant offenses; (b) an agreement has been reached between the victim J and his/her family; (c) there is no record of criminal punishment; and (d) the Defendant’s age, character and conduct; (b) family relationship; (c) motive and circumstance of the offense; and (d) various sentencing conditions

The acquittal portion

1. Summary of this part of the facts charged

On July 20, 2010, at around 10:36, the Defendant taken a screen picture with G, a female juvenile under the age of 19, who was aware of an Internet hosting site, at an unfolding guest room located in the Chungcheongnambuk-gun, and stored the video files in the Defendant’s computer, respectively, by photographing each page of the sexual intercourse and similar sexual intercourse with juveniles, as described in the attached list Nos. 3 and 4, respectively.

2. Determination

As seen earlier, Article 2 subparag. 5 of the former Act on the Protection of Children and Juveniles against Sexual Abuse provides that "child and juvenile pornography refers to the appearance of children and juveniles to express any act falling under any of subparagraph 4 or other sexual acts, and they are in the form of film, video, computer or other communications media, etc." (Article 2 subparag. 5 of the current Act on the Protection of Children and Juveniles against Sexual Abuse provides that "child and juvenile pornography" shall be deemed as "child and juvenile pornography," "child", "child", and "child pornography" mean a person under the age of 19 (excluding a person who has reached the age of 19 and who has reached the age of 19) who is actually under the Act on the Protection of Children and Juveniles against Sexual Abuse and that a person under the age of 19 shall appear in the relevant video or video, etc.

However, a prosecutor submits only the images or photographs taken by a defendant as evidence of a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscenity) against the images or photographs set forth in the separate sheet No. 3 and No. 4 as indicated in the separate sheet of crime. Even if the face of the other woman appearing in such images or photographs is not clearly recorded or certain face is taken, it is difficult to readily conclude that the other party, active only by the evidence submitted by the prosecutor, is a juvenile under the age of 19, and there is no other evidence to acknowledge this.

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.

The judges of the presiding judge;

Judges Lee Jae-sung

Judges Park Jong-won

1) Article 2 subparagraph 5: Child or juvenile pornography refers to any of the acts referred to in subparagraph 4, as children or juveniles appear.

Film, video products, game products, computers, or other communications media that express any other content of a sexual act;

by means of images, images, etc.

Article 2 Subparag. 4: The term "act of purchasing the sex of children and juveniles" means a person who mediates the act of buying the sex of children and juveniles, children and juveniles; and

person, etc. who actually protects and supervises children and juveniles, such as money and valuables or other property benefits, provision of duties, convenience, etc.

(a) A child or juvenile who commits or promises to commit any of the following acts for a child or juvenile:

The term "juvenile" means having a juvenile do so.

(a) Sexual intercourse;

(b) Similar sexual intercourse using part of the body, such as the mouth and anus, or implements;

(c) Contacting or exposing all or part of the body, which causes sexual humiliation or aversion of ordinary people;

(d) Self-defense;

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.