2018Gohap454,892(Joint), Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

(B) A person with a disability, a theft, an attempted attack;

Violation of the Child and Juvenile Protection Act

(Indecent act by compulsion, attempted threat, fraud, threat, or sex;

Violation of the Act on Special Cases concerning Punishment, etc. of Violence Crimes

(obscenity by means of communications media)

A

Of mid- and long-term Kim (prosecutions) and Kim Goods (Trial)

Attorney Lee Jong-hoon (Korean)

October 31, 2018

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

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

The seized Handphone (LG-F750) shall return one (No. 3) to the injured party B.

Criminal facts

[2018Gohap454]

1. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (livering by deceptive means, etc.);

On April 12, 2018, the Defendant had been aware of the fact that the victim B (here, 33 years of age) was a disability of the second degree of intellectual disability through a "C" case around 20:0 on April 12, 2018.

At around 20:30 on the same day, the Defendant immediately saw the victim under the Jongno-gu Seoul Metropolitan Government Dives E, demanded the victim to have sexual intercourse, but the victim refused to do so, prevented the victim from resisting at 2 times with his/her hand, and laid off all clothes of the victim, and inserted the Defendant’s sexual organ into the part of the victim’s sound.

Accordingly, the defendant has sexual intercourse with the victim who has a mental disability by force.

2. Larceny;

A. At around 21:50 on April 12, 2018, the Defendant: (a) sexual intercourse with the victim B by force, and (b) called, “the victim would have come to go to a cleaning agent.” (c) had the victim enter the toilet, and immediately had the victim go to the toilet; and (d) had the victim go to the toilet. Accordingly, the Defendant stolen one of the victim’s unclaimed market prices.

B. At around 22:10 on the same day, the Defendant confirmed that the victim was unable to be aware of the fact that the victim was lost on the spot E, and then, at once, confirmed that the victim was “to use a mobile phone because there is no mobile phone exhauster in order to make the phone stuffed off,” the victim borrowed his/her mobile phone, thereby holding the victim’s mobile phone as it is. Accordingly, the Defendant stolen one (LG-F750) Handphone (No. 3) equivalent to 2.50,000 won at the market price owned by the victim.

3. Attempted crimes; and

On April 12, 2018, the Defendant returned home with a stolen mobile phone owned by B, as seen above, and sent his account number in writing to the victim F (the age of 57) who was the mother of B (the age of 200,000,000,000,000,000 won is sent to the account, and if not, he will die of his father) by walking his phone to B’s mobile phone.

As such, the Defendant, who frighted the victim, was forced to leave 4 million won from the frighten victim, but the victim did not respond to such withdrawal and did not commit an attempted crime.

[2018Gohap892]

1. Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse;

After the Defendant became aware of the Victim G (nive, 15 years of age) through a mobile phone ch c c, the Defendant was aware of the Victim G (nive, 15 years of age) on January 25, 2018 at the first underground shopping mall located in the Mayang-si Sinyang-si H on January 25, 2018, and had heard that the said victim was only the victim, but did not have been living from the victim.

On January 25, 2018, at around 18:55, the Defendant sent a message as if he/she was a person who is aware of the part of the victim with "K" using the name of "K at the home of the Defendant in Seongbuk-gu Seoul High Court," and asked the victim who is the victim whether he/she is a person who is aware of the victim. The Defendant is in possession of the victim's name, age, and domicile. The Defendant sent a text message stating that "K shall spread his/her body photograph with his/her face and chest without receiving a deposit of KRW 10 million from him/her." Unless it is sent, the Defendant sent it to the victim who was frighted with the Defendant’s video call and sent the face and chest, etc.

Accordingly, the defendant, by intimidation, committed an indecent act against the victim who is a child or juvenile.

2. Attempted crimes;

The defendant sent the text message to the victim, at the time and place mentioned in paragraph (1) above, that the victim disclosed the face and chest part, etc. through the video call as described in paragraph (1) above, and then cut it to the cell phone, and then sent it to the victim through "L", and then sent it to the victim with "10 million won of the bank deposit, and send it once 30 million won." If so, the defendant sent the text message "I want to spread the bom photograph of the width to the victim," and intended to receive money and valuables from the victim who was frighted, but the victim did not have the intent to reject it.

Accordingly, the defendant attempted to receive money and valuables by threatening the victim, but attempted to do so.

3. Fraud;

In a place where it is unknown on January 31, 2018, the Defendant posted a notice on the Internet website M stating “Sales of 400,000 won of opphone7 Popphones” without having an Aopphone 7 Popphones cellular phone and having an intent to seek money from the victims, and then received money from the victim N on January 31, 2018 from 40,000 won to the Defendant’s bank account under the name of the Defendant on February 27, 2018, and received money from 8,00 won in total from 3,32,00 won from 8,00 won as shown in the list of crimes in the attached Table from the victim. Accordingly, the Defendant, by deceiving the victims and received money from the said victims.

4. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media);

(a) Crimes against victims P;

On March 7, 2018, the Defendant, at around 02:10, told the victim’s cell phone, which he came to know through Q Q, from the Defendant’s home located in Seongbuk-gu Seoul Seongbuk-gu Seoul, the Defendant, such as “the bit of bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of

(b) Crimes against the victim R;

On March 21, 2018, the Defendant sent the message that “the victim R (17 years of age) and 30 persons in secret name, who became aware of the location and trade name in Seongbuk-gu Seoul, through S, at the PC room where it is difficult to know the location and trade name in Seongbuk-gu, Seoul, and the Defendant sent the message that “the victim R (17 years of age), and 30 persons in secret name, sent to group hosting, and that “the victim’s sexual photo files sent out by downloading at the Internet site and as soon as possible in the future of the width.” Accordingly, the Defendant sent the victim each word, picture, and image that may cause sexual humiliation or aversion through telephone and computer for the purpose of inducing or satisfying the Defendant’s sexual desire.

5. Intimidation.

On March 16, 2018, the Defendant, at around 18:06, sent a cell phone of the victim T (18 years old) who came to know of Q from the Defendant’s home located in Seongbuk-gu Seoul High Court’s Seongbuk-gu Seoul High Court, called “the Defendant’s phone will be called as “the Defendant will go to know of the name of the width, face, and site so that all the people can know it.”

Accordingly, the defendant threatened the victim.

Summary of Evidence

[Criminal facts of the first instance in the Decision 2018Gohap454]

1. Partial statement of the defendant;

1. Legal statement of the witness B;

1. Partial statement of each prosecutor's protocol of examination of the defendant against the defendant;

1. Victim B stenographic records;

1. A certificate of disabled persons, a report on psychological evaluation of victims, and an intermediary report of victims;

1. A detailed statement of processing 112 declarations (10466);

1. Video-recording cd [criminal facts set forth in the holding of the case No. 2018, 454];

1. Defendant's legal statement;

1. Legal statement of the witness B;

1. Victim B stenographic records;

1. Records of seizure and the list of seizure;

1. A report on investigation (the confirmation of mobile phone prices owned by the victim);

1. A detailed statement of processing 112 Reports (10466) / Criminal facts listed in the Decision 3 in the case No. 2018,454];

1. Defendant's legal statement;

1. The police statement concerning F;

1. Report on internal investigation (Attachment to the details of the cell phone conversations of the victim), investigation report (the contents of conversation on the seized telephone recording file), investigation report (additional investigation into DNA CCTV in addition);

1. A photograph of a course of closure (2018 Gohap892);

1. Defendant's legal statement;

1. Each police statement on G, P, T, and R;

1. Each petition and statement of the N, U, V, W, X,Y, and Z;

1. A written statement;

1. Application of Acts and subordinate statutes to a detailed statement on the payment of damages and a detailed statement on the transfer of damages;

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

Article 6(5) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes with Disabilities; Articles 329, 352, and 350(1) (the choice of imprisonment), 7(3) of the Criminal Act on the Protection of Children and Juveniles against Sexual Abuse; Article 298 of the Criminal Act; Article 298 of the Criminal Act on the Protection of Children and Juveniles against Sexual Abuse; Articles 352 and 350(1) of the Criminal Act; Article 347(1) of the Criminal Act; Article 13 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (the selection of imprisonment with labor); Article 347(1) of the Criminal Act (the selection of imprisonment with labor); Article 283(1) of the Criminal Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (the obscenity

1. Discretionary mitigation;

Article 53 of the Criminal Act, Article 55(1)3 of the Criminal Act (hereinafter referred to as the following circumstances)

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Concurrent Punishment for Crimes in Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with the largest penalty provided in the former part of Article 37, Article 38 (1) 2 and Article 50 of the Criminal Act (Aggravation of Concurrent Punishment for Persons with Disabilities

1. Order to complete programs;

The main sentence of Article 16(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and the main sentence of Article 21(2) of the Act on the Protection of Children

1. Exemption from an order for disclosure and notification;

Article 47(1) and Article 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes; the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the Defendant committed each of the instant crimes at the age of 18 years); the Defendant has no record of criminal punishment due to the same sexual crime before the instant case; the Defendant’s order to complete a sexual assault treatment program; and the Defendant appears to have considerable effect on preventing recidivism; and the Defendant’s order to undergo a sexual assault treatment program is likely to have considerable effect on preventing recidivism; in full view of various circumstances such as profits and preventive effects expected by the disclosure order or notification order; the degree of disadvantage that the Defendant suffers, anticipated side effects, etc., there are special circumstances in which disclosure and notification of the

1. Exemption from an employment restriction order;

In light of Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse ( January 16, 2018), the proviso to Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (in light of the defendant's age, family environment, employment restriction order, the disadvantage of the defendant and the effect of preventing sex crimes that can be achieved thereby, it is deemed that there are special circumstances in which the defendant shall not be restricted from employment).

1. Return of victims;

Article 333(1) of the Criminal Procedure Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

In relation to the facts of the crime in the decision of the 2018 Gohap454 case, the fact that the defendant had sexual intercourse with the victim was done with the consent of the victim, but it was not known that the victim was intellectually disabled at the time.

2. Determination

A. Whether the defendant recognized the victim's intellectual disability

The following circumstances revealed by the evidence of the judgment, i.e., ① the victim has intellectual disabilities belonging to I Q 43 or less in all areas, including the verbal understanding power, congrative power of things, repair power, caution and memory power, etc. Furthermore, the victim's statement analysis expert AB expressed his opinion that "the victim can easily recognize that the victim could have a trouble even if he received the report from the victim," and that the victim could not easily be aware of his mental disorder on the day when he received the report from the victim, considering that the victim's statement that "the victim could not easily be seen that the victim could have a trouble even if he made a statement from his superior," and considering that the victim's statement that "the victim could have easily known that the victim was a victim's mental disability" and that the victim could not be seen as the victim's testimony on the day of the report.

B. Whether the victim has sexual intercourse with the consent of the victim

Comprehensively taking account of the following circumstances revealed by the evidence revealed in the judgment, the fact that the Defendant had sexual intercourse with the victim by exercising force, such as the victim’s bucking twice even though the victim did not consent, can be sufficiently recognized. Therefore, this part of the assertion by the Defendant and the defense counsel is not acceptable.

1) At the police investigation stage, the victim stated at the police investigation stage that "I would like to be fine because I would like to do so for the first time because I would like to do so, and because I would like to do so. I would like to do so because I would like to do so. I would like to say that I would like to continue to do so, I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see, I would like to see, I would like to see.", "I would like to see that I would like to see that I would like to see that I would like to see, I would like to see that I would like to see that I would like to see, I would like to see that I would like to do so, and that I would like to make a consistent statement in this court."

2) On the statement made by the victim, the criminal psychologist AB presented the victim's opinion that the victim's statement is based on experienced facts and is likely to be distorted by external impacts on the ground that "the amount of detailed information described about the interaction with the defendant is sufficiently presented, and the various and mutually productive factors that are difficult to consistently make statements due to falsity are included, and that other statements or evidences that do not meet or are inconsistent with the reality are not found and are not known to the present day."

3) The Defendant and the victim did not set the place of promise at an area where the Defendant and the victim had a pleasant accommodation from the beginning, but moved to find and move to a low-priced accommodation near the Dongdaemun. This circumstance accords with the Defendant’s assertion that the Defendant and the victim had a sexual intercourse, rather than with the Defendant’s assertion that the Defendant and the victim have promised to have a sexual relationship, the circumstance is consistent with the victim’s assertion that there was no

Reasons for sentencing

1. The scope of punishment by law;

From June to June 22

2. Scope of recommendations according to the sentencing criteria;

(a) A primary crime;

[Scope of Recommendation] General Criteria for Sex Offenses against Persons with Disabilities (At least 13 years of age) mitigated area (at least 4 years of age to 7 years of age)

[Special Mitigation] Ad hoc Inspector

(b) Second crime (sex crime);

[Extent of Recommendation] The mitigated area of Type 3 (Indecent Act by Compulsion) of Sex Offenses under the age of 13 (Scope of Recommendation) (2.6 to 5 years)

[Special Mitigation] The degree of indecent conduct is weak (1, 3 types). 3 Crimes (Fraud)

[Extent of Recommendation] General Frauds Nos. 1 (less than KRW 100,000) and No. 1 basic area (6 months to 1 year and 6 months)

(d) The scope of final sentence due to the aggravation of multiple offenses: Four years to ten years of imprisonment;

(e) revised range of sentence for recommendation: Imprisonment with prison labor for not less than four years but not less than three years;

Furthermore, the Defendant, by exercising force, stolen the property of the said victim B without any awareness of any particular crime, and tried to take property by threatening the victim F, who was aware of the victim’s awareness. The Defendant, who was 15 years of age or older, committed an indecent act by threatening the victim G, who is a juvenile of the said victim, in the form of exposing and exposing clothes, and exposing the face and chests of the said victim by exposing the video call. In addition, the Defendant taken the above video call process to capture the said victim, thereby leaving the said victim’s property, thereby leaving the said property back. The Defendant, despite of his false writing on the Internet, received 330,000 won in total from the Internet, and transmitted the victim P and R, who was subject to punishment by using the obscene message, and who was subject to criminal punishment before and after the crime was committed by the victim, the Defendant did not seem to have been subject to criminal punishment by taking advantage of the aforementioned circumstances and the frequency of the victim’s obscenity. In light of the Act on Criminal Crimes and the Act on the Punishment of Specific Crimes, etc.

On the other hand, the Defendant committed each of the instant crimes at the age of 18 and did not have any serious criminal record exceeding the fine. The Defendant paid the agreed amount to the victim B, and agreed that the said victim did not want to be punished, and recovered all the amount of damage to the victims of the fraud, and expressed that the victim V, X, and Z did not want to be punished against the Defendant. Family members of the Defendant wanted to be punished against the Defendant.

In full view of the above circumstances and other conditions of sentencing, such as the Defendant’s age, character and conduct, intelligence, environment, and circumstances before and after the commission of the crime, the sentence shall be determined as ordered.

When a conviction on a crime of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (including deceptive schemes, etc. against persons with disabilities) and a crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse becomes final and conclusive, a defendant becomes a person subject to registration of personal information pursuant to Article 42 (1) of the same Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and shall submit personal information to the competent agency

A sex crime which causes the registration of personal information under the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and other crimes are concurrent pursuant to Article 37 of the Criminal Act and Article 38 of the Criminal Act against an accused

The term of registering personal information resulting therefrom is 15 years based on the entire sentence imposed pursuant to Article 45(1)3 and 45(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes. However, considering the seriousness of each of the instant crimes and the degree of possibility of criticism and the circumstances leading to the aggravation of concurrent crimes, it is not recognized that the term of registration as above is unreasonable.

The presiding judge, the Gimology judge

Judges Kim Gin-young

Judges, Senior Jins

1) Since the crimes for which the sentencing criteria are set and those for which the sentencing criteria are not set are concurrent crimes, the amount of each crime for which the sentencing criteria are set.

It will take into account only the lower limit of the recommended sentence on the standards of punishment.

A person shall be appointed.