(영문) 서울중앙지방법원 2019.5.10. 선고 2019고합156 판결

A person subject to an order to attach an electronic device shall be subject to probation for three years, and the matters to be observed in the attached Form shall be imposed.

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

Reasons

Criminal facts and facts constituting the probation order

【Criminal Power】

On October 23, 2014, the Defendant sentenced the Seoul High Court to four years of imprisonment for the crime of violation of the Act on the Punishment of Sexual Crimes and Protection of Victims, etc., and completed the execution of the sentence on January 25, 2018.

【Criminal Facts】

On September 17, 2018, from around 06:51 to around 06:57, the Defendant d'C of the fourth floor of the Seocho-gu Seoul Seocho-gu Seoul Metropolitan Government building B's 'C', and committed an indecent act against the victim by taking advantage of the victim's state of refusal to resist.

[Fact of Grounds for Probation Orders]

The Defendant again committed a sexual crime even though he had the record of punishment for a sexual crime, such as the record of the crime and the record of the criminal facts. In light of the crime of this case and the Defendant’s records of the sexual crime committed by quasi-indecent act against an unspecified female who was committed at a sobrying time, the crime is likely to recommit a sexual crime.

Summary of Evidence

1. Defendant's legal statement;

1. Statement made by the police in relation to D;

1. A report on the occurrence of a crime;

1. One set of DNA in which CCTV is stored at the scene of a crime;

1. Previous records of judgment: Criminal records, references to criminal records, previous records of dispositions, results of confirmation of dispositions, judgment, and inquiry into individual confinement;

1. The risk of recidivism of a sexual crime as indicated in the judgment: The following circumstances recognized by the above evidence and a prior investigation and reply to the request are acknowledged as having the risk of recommitting a sexual crime, taking into account the character and conduct of the defendant, the environment, the objects of the crime, the circumstances and methods of the crime

① Some of the sexual crimes committed by the Defendant and the crimes of this case committed by the Defendant are similar to those committed by the Defendant and the method of committing soup on the body of an unspecified female who was locked in the soup.

② As a result of the assessment of the risk assessment level of a sex offender in Korea (KSAS) and the PCL-R against the Defendant, the Defendant’s comprehensive risk of recidivism was assessed at the intermediate level. However, the investigator who conducted the investigation before the Defendant’s claim against the Defendant was found to have the past sexual crime history four times (two times in which the two times in which the two times in which the two occurred, and the one year in which the two times in which the two was released, and the one year has not passed since the release, and the one in which the emotional support system was weak, presented the opinion that probation order is required after the completion of the attachment of the electronic tracking device or the execution of the sentence.

③ In addition to the criminal records as indicated in the judgment, the Defendant was committed by quasi-indecent act on January 12, 2006, and on February 16, 2012, the Defendant was committed on the charge of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Act at a public place).

has been subject to a disposition to the effect that the person is not authorized to prosecute.

Application of Statutes

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

Articles 299 and 298 of the Criminal Act

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. An order for disclosure and notification;

Articles 47(1) and 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the main sentence of Article 49(1) and the main sentence of Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. An employment restriction order;

The main sentence of Article 56 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Article 21-3 (2) and (1), Article 21-2 subparagraph 1, Article 21-4 (1), and Article 9-2 (1) 2, 3, and 4 (Article 21-2 (1) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders subject to the issuance of a probation order and matters to be observed (the probation order shall be issued ex officio, because the need for probation is recognized, in cases where the request for

1. proviso to Article 16 (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with Non-compliance Order (this shall not apply to cases where an order is issued to a defendant on probation and completion of sexual assault treatment programs is imposed due to the matters to be observed, and

Reasons for sentencing

1. Scope of applicable sentences under law: From one month to 20 years of imprisonment;

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of Type 1] The general standard for the crime of indecent act by compulsion (subject to the age of 13 or more) on sexual crimes

[Special Doctrines] Reduction Elementss: Unlimited elements of punishment: Cumulative repeated crimes of the same kind which do not fall under specific violent crimes (Cumulative crimes).

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment from one month to one year

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and result of the crime, and various sentencing factors specified in the arguments in the instant case, such as the circumstances after the crime, shall be determined as the order.

○○ Unfavorable Circumstances: The instant crime is planned by the Defendant at a soup and soup, by committing an indecent act over six minutes against the victim, resulting in an indecent act against him in a locked state, and the nature of the instant crime in light of the background, method, etc. of the crime. It is more likely that the Defendant, who was sentenced to four years of imprisonment for committing a sexual crime including quasi-indecent act similar to the instant crime, and again committed the instant crime at approximately eight months after the execution of the sentence was completed. The victim seems to have caused considerable mental impulse and sexual humiliation. The instant crime appears to have been made up of the victim.

A favorable circumstances for ○○: The Defendant recognized and reflected his mistake. The Defendant agreed to provide the victim with the amount of KRW 4 million, and the victim expressed his/her intent not to be punished against the Defendant. In addition, the Defendant supports the old parents whose health is not good.

Where a conviction becomes final and conclusive on the criminal facts in the judgment that are subject to registration and submission of personal information, the accused is a person subject to registration of personal information in accordance with 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 in accordance with Article

Judgment on the request for attachment order

1. The summary of the request for attachment order;

The Defendant, who was sentenced to imprisonment with prison labor for committing a sexual crime, committed a sexual crime again within ten years after the completion of the execution of the sentence, and committed a sexual crime on two or more occasions, and thus, is likely to recommit a sexual crime. As such, the Defendant requests an order to attach an electronic tracking device pursuant to Article 5(1)1 and 3 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, to attach an electronic tracking device.

2. Determination

A. The risk of recidivism of a sexual crime under Article 5(1) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders is insufficient solely on the possibility of repeating the crime, and is highly probable that the person subject to the request to attach an order to attach an electronic device may injure the legal peace by again committing a sexual crime in the future. The existence of the risk of recidivism of a sexual crime shall be objectively determined by comprehensively assessing various circumstances, including the occupation and environment of the person subject to the request to attach an electronic device, the criminal conduct prior to the crime, the motive and means of the crime, the circumstances after the crime, and the outline of the crime (see, e.g., Supreme Court Decision 2010Do7410, Dec. 9, 2010).

In addition, since an order to attach an electronic tracking device under the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, the degree of restriction on physical freedom and freedom of privacy, etc. exceeds that of the probation order after the execution of the sentence, the risk of recidivism should be more strict than that of the probation order in order to attach an electronic tracking device.

B. The following circumstances acknowledged by the evidence duly adopted and examined by this court (i.e., the assessment of risk of sex offenders against the Defendant at the 111th point in total as a result of the assessment of risk of recidivism (KSSAS), and the assessment of risk of recidivism at the 29th point in total (the 29th point and 13th point in total). The assessment of risk of recidivism at the 8th point in total as a result of the assessment of mental disorder (PCL-R), the degree of risk of recidivism due to the qualitative character of mental disorder, is evaluated as the intermediate level (the 40th point and 25th point in total), ② The sentence of imprisonment to the Defendant, personal information registration, personal information disclosure and notification order, restrictions on employment and probation order for children and juvenile-related institutions, etc. It is difficult to readily conclude that the Defendant’s sexual crime, including the instant sexual crime, has a significant effect on preventing recidivism and correcting the Defendant’s personality and behavior, and the need to keep the victims from committing indecent acts in the future.

C. Therefore, the request for the attachment order of this case is without merit, and it is dismissed in accordance with Article 9(4)1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders.