Defendant

Freeboard of legitimacy

Judicial Trainees Kim Jong-sung (Korean)

A defendant shall be punished by imprisonment for a maximum term of two years and a short term of one year and six months.

The defendant shall be ordered to complete a sexual assault treatment program for 80 hours.

A seized mobile phone shall be confiscated.

피고인은 2008년경부터 인터넷 포털 사이트인 네이버에 개설된 ‘ ○○○○○’라는 카페( 인터넷 주소 생략)에 가입하여 10대 여자 청소년들이 ‘ △△△△△’ 게시판에 자신들의 프로필과 사진을 올려놓고 문자메시지를 주고받을 친구를 구한다는 내용을 게재한 것을 보고 그들이 소위 ‘얼짱’에 관심이 많고 폭력에 취약한 10대 여자 청소년들인 점에 착안하여 마치 피고인이 ‘얼짱’인 것처럼 가명으로 접근하여 여자 청소년들을 유인한 다음 그들의 사진 배포를 통해 수치심을 유발하거나 성폭력행사 등을 고지하는 방법으로 여자 청소년들을 겁먹게 하여 여자 청소년들로 하여금 피고인에게 영상통화를 걸어 알몸을 보여주거나 음부에 손가락을 넣게 하는 등의 행위를 시켜 이를 보면서 성적 흥분을 느끼고 이러한 영상통화 내용을 피고인의 휴대폰에 동영상으로 저장하여 이를 재생하여 보면서 성적 흥분을 느끼기로 마음먹었다.

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

가. 피고인은 2010. 10. 1. 위 ‘ ○○○○○’ 카페의 ‘ △△△△△’ 게시판에 접속하여 피해자 공소외 1(여, 16세)이 게재한 사진과 휴대폰 번호를 확인한 후 인터넷상의 얼짱 사진 2장과 함께 피고인을 공소외 2라고 소개하는 내용의 문자메시지를 전송하여 피해자 공소외 1에게 접근하였다.

On October 2, 2010, at around 00:50, the Defendant sent text messages to Nonindicted 1, the victim Nonindicted 1, who was in the Dong-dong, Daejeon (hereinafter omitted), such as “I will fright to fright to fright, fright to fright to fright to fright. I am to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to f

B. At around 01:35 on October 4, 2010, the Defendant, at the same place as the above A, sent text messages to the victim Nonindicted Party 1, who already promulgated the Defendant, over about 14 times again, forced the victim Nonindicted Party 1, who was a juvenile, to frightly commit an indecent act against the victim Nonindicted Party 1, by forcing the victim Nonindicted Party 1, who was the juvenile, to walk up the video call in which the images taken through the camera of the mobile phone are transmitted, and by allowing the victim Nonindicted Party 1, who was the juvenile, to send the video call on which the images taken through the camera of the mobile phone are transmitted, and by forcing him

C. At around 01:09 on October 6, 2010, the Defendant: (a) committed an indecent act against Nonindicted Party 1, a juvenile, by sending text messages to Nonindicted Party 1, who already promulgated the Defendant at the same place as the foregoing paragraph (a) on about six occasions; (b) coercing the victim Nonindicted Party 1 into resistance; and (c) forcing the victim Nonindicted Party 1 to walk the video call in which the images taken through the camera of a mobile phone are transmitted; and (d) allowing the Defendant to show the chest and put the finger into a negative part of the finger, thereby forcing the victim Nonindicted Party 1, a juvenile.

라. 피고인은 2011. 1. 5. 00:03경 위 가.항과 같은 장소에서 피해자 공소외 3(여, 13세)에게 “너를 찾을 수 있겠다”, “원래 찾을 수 있음 다 찾아보는데ㅋㅋㅋ”, “내가 아는 후배 놈들 너 다니는 중 나왔는데.. 너 찾아보라고 얘기해보려고”, “걔들 더럽게 놀아서 걸레 만들어ㅋㅋㅋ”, “토 나와ㅋㅋㅋ 진짜 걔네들 너 한번 부탁해 볼까ㅎ” “사진만 주면 찾을 거 같네”라는 내용의 문자메시지를 보내고, 계속하여 “뭐 해줄래 말 안하면”, “사진 보낼게^^”, “뭐든지 다 한다면 봐줄게 네 얘기는 해 놔서 진짜 사진만 주면 끝이다”, “하라는 대로만 하면 걸레될 일 없으니까 겁먹지 마”, “쫌 야한 거 시키는 건 감수해라”, “영통으로 조금만 하면 된다. 그럼 걸레될 일 없어 후배들 안 시킬게”, “약간 야한 거 그럼 바로 사라져줄게”, “옷 좀 입으면 돼 영통 걸어”, “어 내가 말하는 거 영통 채팅 있잖아”, “걸어 나 맘 변한다·”라는 내용의 문자메시지를 순차적으로 보내 겁을 먹게 하여 피해자 공소외 3의 반항을 억압한 다음 피해자 공소외 3으로 하여금 휴대폰의 카메라를 통하여 촬영되는 영상이 전송되는 영상통화를 피고인에게 걸게 한 후 음부에 손가락을 넣는 행위를 하게 하는 등 청소년인 피해자 공소외 3을 강제로 추행하였다.

2. Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials);

On December 4, 2010, at the same place as the defendant 1-A, at the same time as the defendant 1-A at the same time, the defendant made Nonindicted 4 (the age of 13), who is a juvenile, walked in the same manner as paragraph 1-A (the age of 13), walked the video call in which the images taken through the camera of a mobile phone are sent to the defendant, let Nonindicted 4 take the face of Nonindicted 4’s body body, and made Nonindicted 4 take the face of Nonindicted 4’s body body, and produced the juvenile pornography using the video, which is a method of storing the video images transmitted to the defendant’s mobile phone, and expressed the contents that may cause sexual humiliation or aversion of the general public.

1. Partial statement of the defendant;

1. The police statement of Nonindicted 3

1. The statement of Nonindicted Party 1

1. Records of seizure and the list of seizure;

1. Investigation report (the identification of the subscriber No. 010-000-000), investigation report (a copy of Non-Indicted 4’s family relation certificate, and a copy of resident registration);

1. Photographs and text messages;

1. Analysis and response to digital evidence, recovered video images, recovered text messages, and printing out the screen of the recovered video images;

1. Communications data meetings;

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 compulsion against juveniles, the choice of imprisonment) and Article 8(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the production of obscene materials by juveniles)

1. Mitigation of juvenile offenses;

Articles 2 and 60(2) of the Juvenile Act, Article 55(1)3 of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with the punishment prescribed in the Act on the Protection of Children and Juveniles against Sexual Abuse (production, Distribution, etc. of obscenity)]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following circumstances considered in favor of the reasons for sentencing)

1. Illegal punishment;

Articles 2 and 60(1) of the Juvenile Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Order to complete programs;

Article 13(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Summary of the assertion

A. The argument as to each indecent act by compulsion in the judgment

1) The Defendant did not reach the extent that intimidation made by the victims significantly difficult to resist.

2) The Defendant cannot be included in the concept of indecent act and cannot be deemed as an indecent act by the Defendant’s intimidation that the Defendant had the victims go on a video phone and let the Defendant go on a self-defense, etc., and constitutes an indecent act by the Defendant.

B. The assertion as to the production of obscene materials by juveniles as indicated in the holding

The defendant is merely a storage of video images sent by the defendant's cell phone, and it cannot be viewed as a production of obscene materials for juveniles.

2. Determination

A. Determination on the assertion on the charge of indecent act by compulsion

1) Determination as to the assertion that there was no intimidation to the extent that the resistance was remarkably difficult

In the event that an indecent act by force is committed against the other party by intimidation, it is necessary to establish the crime of indecent act by force. The degree of such intimidation is required to make it difficult to resist the other party. Whether such intimidation was sufficient to resist the other party’s resistance should be determined by taking into account all the circumstances, including the content and degree of the intimidation, the background leading up to the exercise of force, relationship with the victim, and circumstances at the time of the indecent act, etc. (Supreme Court Decision 2006Do5979 Decided January 25, 2007).

이 법원이 적법하게 채택하여 조사한 증거에 의하여 인정되는 다음과 같은 사정, 즉 ① 피고인은 문자친구를 구하기 위해 카페 게시판에 휴대폰 번호를 올려둔 피해자들에게 소위 ‘얼짱’인 것처럼 접근하여 피해자의 이름, 나이, 학교 등 신상정보를 알아낸 다음, 피해자들에게 아는 친구들을 동원하여 성폭행할 수 있다는 취지의 문자메시지를 수차례 보내는 방법으로 피해자들을 협박하였던 점, ② 이에 피해자들이 겁을 먹고 문자메시지 교환을 그만두려고 하자, 피고인은 피해자들을 찾는 것이 쉽다는 취지의 문자를 보내 피해자들의 외포 상태가 지속되도록 하였던 점, ③ 피해자들은 학교 폭력 등에 취약한 10대 여자 청소년인 점, ④ 피해자들은 피고인의 협박을 이기지 못하고 피고인의 요구에 따라 판시 범죄사실 기재와 같은 행위를 하였던 점 등을 종합하여 보면, 피고인이 피해자들에게 한 협박이 항거를 현저히 곤란하게 할 정도에 이르렀다고 봄이 상당하므로, 피고인 및 변호인의 이 부분 주장은 받아들일 수 없다.

2) Determination on the assertion that the act does not constitute an indecent act

In the crime of indecent act by compulsion, “indecent act” means an act that objectively causes a sense of sexual humiliation or aversion to the other party and is contrary to good sexual morality, and thus, infringes on the victim’s sexual freedom. Whether it constitutes such an act ought to be determined carefully by comprehensively taking into account the victim’s intent, gender, age, relationship between the actor and the victim, circumstances leading to the act, specific form of act, objective situation in the surrounding area, and the sexual moral sense in the age (Supreme Court Decision 2009Do2576 Decided September 24, 2009).

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court: (i) the victims made a video call to the defendant at the request of the defendant without prejudice, and (ii) the victims committed an act of making the victim wear clothes against his will, putting his/her fingers into a negative part, or admitting that the defendant reports all his/her actions; (iii) the victims are female juveniles of 16 years old and 13 years old who have shown sexual assumption, who are vulnerable to violence or sexual violence; and (iv) the victims' act of expressing that they puts their fingers or speaks against their will is an act of causing serious sexual humiliation or aversion of the victims. In full view of the following circumstances, it is reasonable to view that the defendant's act of inducing the victims to wear a video call to the victim on his/her own after forcing the victims to wear his/her own clothes and her fingers, or seeing them on behalf of him/her by using the taking charge constitutes an indecent act by the defendant and his/her defense counsel as a whole.

B. Determination as to the assertion on the production of obscene materials by juveniles in the holding

Article 2 subparag. 5 of the Act on the Protection of Children and Juveniles against Sexual Abuse provides that “obscenity for children and juveniles” refers to the appearance of children and juveniles to express the contents of an act falling under any of subparagraph 4 (i.e., sexual intercourse with sexual intercourses, such as mouth and mouths, or similar sexual intercourses using tools, all or part of body, which may cause sexual humiliation or aversion to ordinary people, or acts of sexual intercourse with others, which may cause sexual humiliation or aversion to ordinary people, or which act other sexual acts.” It is clear that the image or image using a computer or other communication medium is obscene materials by means of film, video, game software, or computer or other communication medium. In addition, the prior meaning of “production” is to create a new work of art or material with functions and contents with materials, but it is difficult to see that the Defendant’s use of image and image by means of threatening Nonindicted 4 to make it difficult to see that the Defendant’s use of image and image is more than 4,000 another person’s mobile phone, and thus, it is still possible to interpret it.

Therefore, this part of the argument by the defendant and his defense counsel cannot be accepted.

There are favorable circumstances such as the fact that the defendant has no particular criminal punishment as a juvenile, and the defendant's own fact-finding itself recognizes all of the crimes of this case and reflects it.

However, each of the crimes of this case is highly likely to cause sexual humiliation, such as threatening the victims who are female juveniles to go through video conversations, causing them to suffer a sense of sexual humiliation, such as inciting their fingers or injuring their body, etc. The victims appear to have suffered a large mental shock due to each of the crimes of this case as female juveniles in the growing period. The crimes of this case were adversely affected by the psychological growth of the victims and the formation of their sexual identity. Nevertheless, there are more unfavorable circumstances, such as the fact that each of the crimes of this case was committed by the victims without agreement with the victims, which did not completely recover from the victims.

In addition to all these circumstances, the punishment as ordered shall be determined in consideration of all the following factors, including the Defendant’s age, character and conduct, the environment, the background leading to each of the instant crimes, the means and result of the crime, and the various sentencing conditions as shown in the pleading.

Where a conviction of each of the crimes of this case against the defendant is finalized, the defendant constitutes a person subject to registration of personal information pursuant to Article 33 of the Act on the Protection of Children and Juveniles against Sexual Abuse, and thus is obligated to submit personal information to the competent agency pursuant to Article 34 of the same Act.

Judge Kang Jong-ho (Presiding Judge)