2017Gohap85 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse

A

Orscop (prosecutions) and Gangwonscopic (public trial)

Attorney B (Korean National Assembly)

April 28, 2017

A defendant shall be punished by imprisonment for one year.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

The defendant shall be ordered to take a lecture for sexual assault treatment for 40 hours.

Criminal facts

The defendant is a person who operates 'Dart' in Jung-gu Seoul Metropolitan Government C.

1. At around 16:20 on July 16, 2016, the Defendant: (a) obtained from the victim E (the 16-year old age), who carried a pet dog and carried a pet dog from the said Mat Calculation Team; (b) obtained the value of the article from the victim E (the 16-year old age), and (c) taken the victim's right hand to the left part; (d) taken the part of the victim's left part; and (e) taken the pet dog toward the victim's pet dog; and (e) taken the victim's breast with his left hand.

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

2. On August 7, 2016, at around 19:36, the Defendant: (a) obtained the value of the article from the above victim who loaded a gar in the Mat Calculation Unit by placing the gar in the left shoulder; and (b) carried the garl with the garlating hand of the victim’s left hand over two occasions; and (c) taken the garl with the garling hand over two times, the Defendant met the chest of the victim.

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

Summary of Evidence

1. Partial statement of the defendant;

1. The police statement of E;

1. CCTV data CDs;

Application of Statutes

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

Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 298 of the Criminal Act (the occupation of indecent act by juveniles and the choice of imprisonment);

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (the weight of concurrent crimes resulting from a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse as stated in paragraph (2) of the same Article with heavy criminal history)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

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. Article 47 (1) or 49 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from disclosure and notification orders, the proviso to Article 49 (1) or the proviso to Article 50 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (public disclosure and notification of registered information);

An order needs to be prudent in that it may have a significant impact on the defendant. In this case, there is no history of punishment against the defendant for a sexual crime. In light of all the circumstances such as the defendant's age, family environment, etc., it seems that the effect of preventing recidivism can be expected even by taking lectures on the registration of personal information of the defendant against the defendant and taking lectures on the treatment of sexual assault, and the defendant's age, family environment, etc., the effect of preventing sexual crimes that can be achieved by the disclosure or notification order can be relatively less than the disadvantage and anticipated side effects that the defendant will suffer, etc.,

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

In the course of rhyming or cutting down the pet animals of the victim, the defendant was physically contacted with the victim, and there was no intention or perception that the defendant would commit indecent act by compulsion.

2. Determination

The crime of indecent act by compulsion includes not only the case of indecent act after the other party makes it difficult to resist by means of violence or intimidation, but also the case where the act of assault itself is deemed to be an indecent act. In this case, the assault is not necessarily necessary to suppress the other party's will.

An indecent act refers to an act that causes a sense of sexual humiliation or aversion to the general public and is contrary to good sexual morality, and thus infringing on the victim’s sexual freedom. Whether an act constitutes an indecent act ought to be determined carefully by comprehensively taking into account the victim’s intent, gender, age, relationship between the offender and the victim prior to such act, circumstances leading to such act, specific form of act, objective situation surrounding the act, and sexual moral sense in the age (see, e.g., Supreme Court Decision 2001Do2417, Apr. 26, 2002).

In accordance with the above legal principle, the defendant's act constitutes an indecent act by force, and the defendant's intent also can be sufficiently recognized. Accordingly, this part of the defendant's and the defense counsel's assertion is not accepted. The defendant's act constitutes an act by force, and the defendant's act also constitutes an act by force. The defendant's act is also sufficiently recognized. The defendant's act and the defense counsel's assertion are not accepted.

Registration of Personal Information

Where a conviction on the instant crime is finalized, 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 is obligated to submit personal information to the competent authority pursuant to Article 43 of the same Act.

Reasons for sentencing

1. The scope of punishment;

From 1 to 22 years of imprisonment;

2. Scope of recommendations according to the sentencing criteria;

(a) Crimes of violating the Act on the Protection of Children and Juveniles against Sexual Abuse;

The general standard of the crime of indecent act by compulsion (including indecent act by deceptive means and force) on the grounds of the type II (the crime of indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by relative relation / special indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act) and the special mitigation area (where the exercise of tangible force is considerably weak, punishment costs are not imposed), six months to two years from the imprisonment (including indecent act by indecent act by indecent act by indecent act by indecent act by indecent relation, and the upper limit and lower limit of the sentence shall be reduced to 2/3)];

(b) Scope of recommendations according to the guidelines for handling multiple crimes;

From 1 year to 3 years of imprisonment (applicable to the lower limit of punishment by law)

3. Determination of sentence: One year of imprisonment and two years of suspended sentence; and

The crime of this case is not consistent with the circumstances and contents of the crime, such as indecent acts by force on two occasions against the victim, who had left things at the time operated by the defendant, and the victim suffered considerable sexual humiliation and mental suffering. In light of the fact that the victim suffered considerable sexual humiliation and mental suffering, the responsibility of the defendant is heavy.

However, the circumstances favorable to the defendant include: (a) there is no record of the crime committed against the defendant who committed the same crime or was sentenced to a punishment exceeding a fine; (b) the degree of indecent act is not more severe; and (c) the fact that the defendant does not want the punishment by mutual consent with the victim. Other factors of sentencing specified in the records and arguments of this case, including the defendant’s age, environment, character and conduct, motive and means of the crime, circumstances after the crime, etc

The presiding judge, judges, and the Yellow Constitution

Judges Jong-jin

Judges Kim Jae-han