2014Gohap260 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

act of similarity, indecent abduction

2014. Consolidated order for attachment

A

Kimchi decoration (prosecution) and Nowon-guok (public trial)

Attorney B (Korean National Assembly)

July 18, 2014

A defendant shall be punished by imprisonment for eight years.

The information on the accused shall be disclosed and notified through the information and communications network for ten years (Provided, That the summary of the sex offense disclosed and notified shall be limited to the crimes in paragraph (2) of the ruling).

To order the defendant to complete a sexual assault treatment program for 80 hours.

An applicant for an attachment order shall be ordered to attach an electronic tracking device for ten years, and matters to be observed in the attached Form shall be imposed during the period of the attachment.

Criminal facts and attachment order 【criminal records】

On February 5, 2010, the defendant and the requester for an attachment order (hereinafter referred to as the "defendant") sentenced ten months to imprisonment for the crime of indecent act by force at the Busan District Court on April 10, 201, and completed the execution of the sentence. 【Criminal Facts】

1. Kidnapping of indecent acts;

On March 21, 2014, at around 15:00, the Defendant discovered the victim D (24 years old) who was a first-class disabled person (i.e., pulmonary disorder) while visiting the C market located in the Dong-gu Busan Metropolitan City, and used the victim's disability to capture the victim to the Defendant's house and then sexual assault.

At around 16:00 on the same day, the Defendant took the victim in a 'E' restaurant located in the same market, and made the victim take the 'E' so that the victim may be able to do so, thereby allowing the victim to resist.

Then, around 17:00 on March 21, 2014, the Defendant was a class 1 of self-defashion disorder on the road near the above restaurant, and the Defendant was unable to resist by drinking alcohol without any other person’s aid, and was unable to do so to the taxi. On the same day, around 18:00 on the same day, the Defendant went back the victim to the Defendant’s residence located in Seo-gu, Busan. Accordingly, the Defendant kidnapped the victim for the purpose of indecent act.

2. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Assaults (similarly disabled persons);

From around 18:00 on March 21, 2014 to 20:00 on the same day, the Defendant forced the Defendant to be exempted from the clothes of the victim in a state of failing to resist due to disability and drinking, as described in paragraph (1) above, as stated in paragraph (1), from the dwelling of the Defendant, as well as the written in paragraph (1) of the same Article, putting them into the drafting of the victim, promptly putting the victim’s sexual organ into the victim’s sexual organ, putting the victim’s fingers into the victim’s resistance, and inserted the Defendant’s sexual organ into the victim’s resistance.

As a result, the Defendant committed an act of inserting sexual organ into the body of a victim with a physical or mental disability due to assault or intimidation, such as mouth or anus.

【Fact of Grounds for Attachment】

The Defendant committed a sexual crime against a person who has a physical or mental disability, such as the above criminal facts, and is likely to recommit a sexual crime.

Summary of Evidence

[Criminal Facts in the Judgment of the court]

1. A protocol of examination of part of the defendant by prosecution;

1. The statement of the victim recorded in the video CD;

1. Each investigation report (Nos. 9, 10, 12, 14, and 20 in the list of evidence);

1. Requests for an emergency appraisal of sexual assault;

1. Information, etc. on runaways of missing children, etc.;

[Judgment of the court below]

1. Criminal history records;

1. Each investigation report (No. 18,30 No. 50);

【Risk of Reoffending at Time of Sales】

The following circumstances recognized by the prior investigation of the request for the attachment order and the following: (a) as a result of the assessment of the risk of recidivism by the Korean sex offender (K-SAS), the Defendant appeared to have increased the risk of recidivism by 14 points (Evidence record 605,608 pages). On February 5, 2010, the Defendant, who committed an indecent act by force against a male under the age of 20 from female to female and drinking, was sentenced to imprisonment of 10 months for the crime of indecent act in Busan District Court on April 10, 201 and completed the execution of the sentence (Evidence record 360,594,629 pages), and the Defendant committed the crime in this case during the period of the repeated crime (Evidence record 360,594,629 pages), taking into account the motive and background of the crime in this case, the Defendant’s age, character and behavior, environment, etc.

Application of Statutes

1. Article applicable to criminal facts;

Article 6 (2) 1 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a point where a person with a disability is similar) and Article 288 (1) of the Criminal Act (a point where a person commits an indecent act)

1. Aggravation for repeated crimes;

Article 35 (Aggravation of Cumulative Offense within the limit of the proviso of Article 42 of the Criminal Act against the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes at the Time of Sales)

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 (aggravated Punishment with Disabilities within the scope of proviso of Article 42 of the Criminal Act) shall be imposed on the punishment provided for in the former part of Article 37, Article 38 (1)

1. An order for disclosure;

Article 47(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Article 49(1)2 and (3) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. An order to notify;

Article 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Article 50(1)2 and (4) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Order to complete programs;

Article 16(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Issuing an order to attach an electronic tracking device and matters to be observed;

Reasons for sentencing under Article 5(1)5, Article 9(1)2, Article 9-2(1)1, 2-2, and 3 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders; 1. The scope of punishment: Imprisonment with prison labor for up to 50 years from 5 years;

2. Scope of recommendations;

○ Basic Crime: Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (similar act to disabled persons).

[Determination of Punishment] Sex Offenses, General Standards, Sex Offenses against Persons with Disabilities (At least 13 years of age), Type 3 (Similar Rape)

[Special Aggravations] - Aggravations: Cumulatives not falling under special lectures

[Scope of Recommendation] 6 years to 9 years (Aggravation)

○ Scope of recommended punishment revised according to the criteria for handling multiple crimes: Imprisonment with prison labor for at least six years (the crime of kidnapping in indecent act, which does not apply the sentencing criteria), and considering only the lowest limit of the recommendations for basic crimes)

3. Determination of sentence: Imprisonment with prison labor for a crime of eight years is very poor in light of the victim's state, method of crime, etc. Further, the defendant committed an indecent act against men aged 20 years in drinking around 209, and committed an indecent act on February 5, 2010 at Busan District Court sentenced the victim to imprisonment with prison labor for 10 months as an indecent act on the part of the victim, leading the victim to unable to resist by taking advantage of the victim's disability, leading the victim to drinking in a restaurant, leading the victim to be able to do so, which is a residence of the defendant, and kidnapping the victim, and committing an act of similarity by inserting the victim's sexual organ into the victim's resistance, inserting his finger and his sexual organ into the victim's resistance, etc., and committed an indecent act on the part of the victim, and committed an indecent act on April 10, 201 in addition to the suspended sentence execution of the Act on Punishment of Violence, etc. at the time of the crime of this case (a repeated act of this case, etc.).

The victims and their families have been making a lot of efforts to overcome the pulmonary disorder of the victims, and accordingly, the situation of the victims has been considerably improved. However, after the crime of this case, the psychological impulses of the victims have not been recovered as much as the frequency of the occurrence of magnetic disorder has increased since the crime of this case, and there are concerns over the occurrence of psychological and emotional symptoms to the victims for a considerable period of time in the future. Furthermore, the mother of the victims, etc. who have protected the victims, also family members, such as the victims, etc., are in serious mental shock and suffering from the crime of this case, and in particular, the mother of the victims, by their efforts for self-reliance, made it possible to get on the subway alone to some extent, and rather, made it possible for the victims to get on the subway on their own due to their own efforts.

In light of the fact that the victim and his family members suffered from a very great mental suffering due to the instant case, the Defendant continued to make a vindication that is difficult to understand, such as having not known the victim's disability and having sexual intercourses under the agreement, and has not taken any measures to undermine the mental impulse between the victim and his family members, it is necessary to severely punish the Defendant.

The sentence shall be determined as ordered in consideration of such circumstances, the age, character and conduct, environment, and circumstances before and after the crime, etc., as shown in the pleadings of this case.

In addition, it is ordered to complete the sexual assault treatment program for 80 hours in order to reflect and improve the defendant's sexual assault tendency.

Registration of Personal Information

Where a conviction becomes final and conclusive on the crime under paragraph (2) of the judgment that is a sex offense subject to registration under the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the defendant shall be subject to registration of personal information under Article 42 of the aforesaid Act and shall be obligated to submit personal information to the competent agency

Judge of the presiding judge;

Judges Park Jong-chul

Judges Shin Dong-dong

1) According to the sentencing guidelines enforced on July 1, 201, when the prosecution of the instant indecent act was enforced for the crime of kidnapping, the former specific crime is committed against the crime of kidnapping.

Article 5-2 (4) of the Act on Aggravated Punishment, etc. (Amended by Act No. 11731, Apr. 5, 2013) (a life imprisonment or imprisonment with prison labor for not less than five years) is appropriate.

Article 288(1) of the Criminal Act provides for the scope of recommendation, however, Article 5-2(4) of the Act is deleted by Act No. 11731.

Since it was revised, the sentencing criteria as of July 1, 201, which was enforced on July 1, 201, shall not be applied (The Sentencing Committee on March 31, 2014).

At the plenary meeting of the Sentencing Committee, the sentencing guidelines for revision of the crime of kidnapping in accordance with the amendment of the Act on the Aggravated Punishment, etc. of Specific Crimes are significant.

This is expected to take effect from October 1, 2014. Accordingly, in the case of the crime of kidnapping in this case, the crime of kidnapping in this case is committed.

It is a type 2 (including indecent act, sexual intercourse, marriage, abduction for the purpose of profit-making, abduction, inducement and trafficking) only in the case of external transfer, solicitation, transportation and delivery, and special cases.

As a sentencing factor, "in the case where the victim is a physical or mental disability condition", imprisonment from June to April (Aggravated area) shall be sentenced to imprisonment from June to June (Aggravated area).

Punishments shall be recommended.