(영문) 서울중앙지방법원 2018.2.2. 선고 2017고합1239 판결

However, the execution of the above punishment is suspended for 3 years from the date the judgment became final and conclusive. To order the defendant to attend the sexual assault treatment lecture for 40 hours.The prosecution against the act of assault among the facts charged in this case is dismissed.

Reasons

Criminal facts

1. On January 2017, the Defendant: “D’s operation of the Defendant in the Seocho-gu Seoul Metropolitan Government Defendant’s operation of the Seocho-gu, Seoul, identified the victim’s son (tentative name, n, 8 years of age) who steals the ice, and confirmed the victim’s her son’s 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 hers her

2. Around August 2016, the Defendant: (a) committed an indecent act by force against a victim F (n, 8 years of age) who intends to calculate at a place prescribed in paragraph (1) of the P.M. on the following occasions: (b) the victim F. (n, 8 years of age) “I are bad and bad; (c) the same shall apply to internal food”; and (d) the victim’s knife, protruding his k or her kn

Summary of Evidence

1. Partial statement of the defendant;

1. Each statement made by E, F, and each statement made by each victim in each victim’s statement video CD, each statement made by E, F, and each statement made by each victim;

1. Each statement and analysis opinion on E (tentative name) and F;

1. The criminal place;

1. Photographs of the place of crime;

1. A report on investigation (to attach written opinions on the statement and analysis of experts in sexual assault against children and disabled persons);

Application of Statutes

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

Article 7(3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and Article 298 of the Criminal Act

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Articles 55(1)3 of the Criminal Act)

1. Suspension of execution;

Article 62(1) of the Criminal Act (Concurrent consideration of favorable circumstances among the reasons for sentencing below)

1. Order to attend lectures;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Exemption from an order for disclosure and notification;

In light of the proviso of Article 49(1) and the proviso of Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the fact that the defendant's own criminal act is divided and reflected, the defendant has no record of punishment for sexual crimes, the defendant's age, occupation, family environment, social relationship, etc., which is recognized in the record can be seen as having the effect of preventing recidivism even by registering personal information of the defendant and attending sexual assault treatment courses, it is judged that there is a special circumstance that the disclosure of the defendant's personal information should not be notified to the public) and his/her defense counsel.

The defendant and defense counsel asserted that the defendant did not have an intent to commit an indecent act against the victims even though the victim's her her her her her her b

이 법원이 적법하게 채택하여 조사한 증거들에 의하여 인정할 수 있는 다음과 같은 사정들 즉, ① 피고인이 자신이 운영하는 가게에 물건을 사러 온 초등학생인 피해자들의 엉덩이를 만진 행위는 객관적으로 일반인에게 성적 수치심이나 혐오감을 일으키게 하는 행위이고 실제로 피해자들이 불쾌함을 느끼기도 하였으므로(수사기록1) 55, 103쪽) 나이 어린 피해자들의 성적 자유를 침해하는 '추행'에 해당하는 점, ② 피해자 E(가 명)은 "자신이 껌을 훔치다가 피고인에게 발각되어 구석에서 울다 나왔는데 피고인이 '또 무엇을 훔친 것 아니냐'고 말하며 양손으로 엉덩이 전체를 잡으면서 2-3회 주물럭 거렸다."라고 진술하고 있는바(수 45-46, 55, 159쪽), 피고인이 훔친 물건을 확인하는 과정에서 피해자 E(가명)의 엉덩이에 손이 닿은 것에 불과하다고 할 수 없는 점, ③ 피해자 F은 "피고인이 '너 참 귀엽다. 예쁘다. 내 자식 같다'고 하면서 손으로 엉덩이를 열 번 정도 톡톡 쳤다. 기분이 이상하고 무서웠다."라고 진술하고 있는 점(수 102-103, 157쪽) 등에 비추어 보면, 피고인은 초등학생인 피해자들의 의사에 반하여 그 신체를 만진다는 것을 인식하면서 강제추행의 고의로 판시 범죄사실과 같은 행위를 한 사실을 충분히 인정할 수 있다.

Therefore, the defendant and defense counsel's above assertion is not accepted.

Registration of Personal Information

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, 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, and thus is obligated to submit personal information to the competent agency pursuant to

1. The grounds for sentencing: Imprisonment with prison labor for a period of two years and six months; and

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

(a) Basic crimes and concurrent crimes - Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a)

[Determination of Type] A sex offense subject to the age of 13 or less shall be classified into three.

[Special Sentencing] Disapproval of Punishment (Discretionary Elements)

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment for 2 years and 6 months, 5 years;

(b) Application of standards for handling multiple crimes: Imprisonment with prison labor for two years and six months - seven years and six months (the imprisonment with prison labor for five years which is the upper limit of the scope of punishment for basic crimes plus two years and six months);

3. Determination of sentence: The crime of this case 3 years of suspended sentence in two and a half years of imprisonment is that the defendant, who operates the phrase, committed an indecent act by the victim, who is a female student of an elementary school, at his/her own seat, committed an indecent act by assaulting his/her her mackt, and the crime is bad. Accordingly, he/she received serious mental impulses by causing a great sense of sexual humiliation to the victims of her age.

However, considering the following circumstances: (a) the defendant is against the defendant; (b) the defendant has no record of being subject to punishment or severe punishment for sexual assault crimes; and (c) the victim and his mother and the victim have not want to be punished by the defendant; and (d) the defendant's age, character and conduct, environment, family relationship, motive and circumstance of the crime of this case; and (e) the circumstances after the crime, etc., various sentencing conditions stipulated under Article 51 of the Criminal Act, including the defendant's age, character and conduct

Public Prosecution Rejection Parts

1. Summary of this part of the facts charged

On May 2017, the Defendant: “D” for the Defendant’s operation in Dongjak-gu Seoul Metropolitan Government on the end, the Victim G (Y, 10 years of age) and his relatives asked the victim’s body and only prices, and then taken the screen image at the time of asking the price only without asking the object. If you ask the price, they will report the screen image.” The Defendant taken the screen image at the same time as “the victim and her relatives respond to this, and I am son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son.”

2. Determination

This part of the facts charged is a crime falling under Article 260 (1) of the Criminal Act, which falls under paragraph (3) of the same Article.

Since the victim and his mother submitted a written agreement that they do not want punishment to the defendant on January 19, 2018, which was after the prosecution of this case, to this court, the victim cannot be prosecuted against the clearly expressed intention of the victim, this part of the prosecution is dismissed in accordance with Article 327 subparagraph 6 of the Criminal Procedure Act.