2016Gohap282 Violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof

Talivists)

2016.Saccincia33 (Joint Attachment Orders)

A

Park Young-young (prosecution, public trial), Park Young-chul (public trial), and public trial

Attorney B (Korean National Assembly)

January 11, 2017

A defendant shall be punished by imprisonment for life.

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

To the person subject to the request for attachment order, the attachment of an electronic tracking device shall be ordered for 20 years.

Criminal facts

【Criminal Power】

On July 13, 2001, the defendant and the person subject to a request to attach an attachment order (hereinafter referred to as the "defendant") were sentenced to imprisonment with prison labor for violating the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. on the same day by the Gwangju District Court on the same day, and the judgment was finalized on July 31, 2003, and sentenced to imprisonment for life by the Gwangju District Court on November 14, 2003.

【Criminal Facts】

On February 4, 2001, the Defendant: (a) laid the victim D (Woo, 17 years of age) on his own car through Internet hosting in the south-gu Seoul metropolitan street around the new wall; (b) laid off the victim D on his own car; and (c) took off the victim’s lower debt within the said car by force on the Furine located in E at Naju, carried the victim’s two arms into a swater, sealed the victim’s resistance on one-time basis; and (d) pushed down the victim’s two arms.

In order to conceal the above crime, the Defendant continued to kill the victim by cutting down the victim's neck from the vehicle and putting the victim into the faline price, and sprinking the victim's neck into the water and making the victim sprinked, spked, and sprinked.

Accordingly, the defendant raped and killed the victim.

【Fact of Grounds for Attachment】

As above, the Defendant committed the murder crime and the sexual assault crime against a person under the age of 19, and thereafter, commits the robbery, and thereby, is likely to recommit the murder crime and the sexual assault crime against a person who had the record of having been sentenced to imprisonment for life by committing the robbery.

Summary of Evidence

1. Each legal statement of witness G and H;

1. Each police statement to I, J, and K;

1. Assistant inspector (Evidence 66);

1. Recording notes of meetings A (No. 155) (No. 155)

1. Copies (No. 171) of photographs;

1. Verification as to whether any case is dealt with (Evidence 240, 343), a written appraisal request for appraisal (Evidence 298), a body autopsy request for autopsy (Evidence 299), or a case related to DNA conformity (Evidence 300);

1. The distance (No. 9) between the victim's residence D L apartment and the place of occurrence of the case (satellite photograph) (No. 9), the J counterpart telephone interview (Investigation Report) (No. 12), M, a witness M, A, the use of the victim's D website (Investigation Report (No. 55), a multi-lock (No. 63), a multi-lock (No. 63), a document attached (Investigation Report) to the statement of reasons for the investigation of the suspect D, a criminal report (No. 82), a criminal investigation report (comprehensive) (No. 88), a criminal investigation report (No. 145) (No. 145) (No. 145)

1. Previous records of judgment: Criminal records, personal identification and confinement status, investigation reports (report attached to a suspect's judgment, etc.);

1. The risk of recidivism in the judgment of the court: (a) the following circumstances acknowledged by the evidence adopted and examined by the court; (b) the defendant was sentenced to imprisonment for life by committing robbery again for two years after committing rape, who is a female juvenile under the age of 17; and (c) the defendant, after committing the crime of this case, deserted the body of the victim; and (d) even after committing the crime of robbery, the defendant was deprived of the victim's clothes; and (c) even after committing the crime of robbery, the defendant tried to cruel and concealed the body of the victim; (d) the defendant was sexual intercourse with female or female juvenile only through the Internet site, etc.; and (e) the defendant was frightened with the victim's age, character and behavior, environment, the circumstances surrounding the crime of this case, details of the crime of this case; and (e) the risk of committing the crime of murder again, including the defendant's age, character and conduct, the circumstances leading up to the crime of murder; and (e) the risk of committing a sex crime of less than 19 years.

Application of Acts and Subordinate Statutes)

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

Article 10(1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (Amended by Act No. 9110, Jun. 13, 2008); Article 297 of the former Criminal Act (Amended by Act No. 11574, Dec. 18, 2012);

1. Handling concurrent crimes;

The latter part of Articles 37 and 39(1) of the Criminal Act (mutual between the crimes of the market and the crimes of larceny, etc. for which judgment becomes final and conclusive)

1. Order to complete programs;

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

1. An attachment order;

Article 5(1)4 and (3) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders; Article 9(1)1 of the former Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (Amended by Act No. 11558, Dec. 18, 2012)

Judgment on Defendant’s argument

1. Summary of the assertion

The Defendant did not have any fact of murdering the victim after rape as stated in its reasoning, and the sexual intercourse with the victim is not memory. In particular, given that the Defendant visited the mother house located in the Y of Jinnam-gun of Jinnam on the day of the instant case with female-child N, etc. on the day of the instant case, the Defendant did not murder the victim.

2. Determination of conviction

A. Key issue

In a criminal trial, the conviction shall be based on evidence with probative value sufficient to cause a judge to have a reasonable doubt that the facts charged are true, and if there is no evidence to form such a conviction, the doubt of guilt shall be determined as the interests of the defendant even if there is no such evidence: Provided, That such conviction does not necessarily have to be formed by direct evidence, but is formed by indirect evidence unless it violates empirical and logical rules, and even if indirect evidence does not have full probative value as to the facts charged individually, if it is deemed that a comprehensive probative value as to the whole evidence exists if it is deemed that it does not exist solely if comprehensive evidence does not have full probative value as to the facts charged. Here, “reasonable doubt” refers to not all questions and correspondence, but to the reasonable doubt about the probability of facts that cannot be compatible with the facts in accordance with logical and empirical rules, and thus, it is difficult to view that there is no reasonable doubt as to the facts charged by the defendant, which is favorable to the fact-finding, and thus, it can not be deemed that there is a reasonable doubt or abstract evidence of the defendant.

B. Determination

1) Grounds for death

In the face of the body of a victim, the blood transfusion is observed, the eye is found in the string of snow and the string of the eye, and the string of the string of the eye and the string of the string of the string of the string of the string of the string of the string of the body of the victim, and the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the body

(ii) the possibility of rape in the immediately preceding death;

Of the victim's body (Evidence 66) of the victim's body, the vegetables that are observed by both knife and knife are likely to occur when the victim's body defends another person's attack or is under pressure by another person. The pressure gauge of several vertical lines observed by both bucks (in the case of the vegetables) are likely to have increased the body of the vegetable pattern or clothes in the victim's body (the pressure gauge such as the above is not generated only by the vegetables with the clothes). The vegetables and vegetables that are observed by the victim's body are likely to occur in the process of preventing the victim from getting off or getting off the clothes of the victim, and the vegetables and vegetables that are observed by the Rabbbbbbs, together with the circumstances mentioned in the above paragraph (1) and (2) are likely to occur.

On the other hand, the victim went out at around 11:00 and 17:00 from around 14:30 to around 17:00 to around 18:0, and her cafeteria operated by her mother. At around 20:30, her mother returned to the cafeteria, and her was finally connected to the Internet site at around 01:14 on the day of the case.

In light of the victim's criminal behavior immediately before the death, the victim appears to have suffered after the victim re-exploiting the skin of the skin, pressure, and stimulsion found at the victim's body (the victim was on board a somewhat string play equipment called "Tadico" at around 16:00 of the preceding day of the case, but the pressure was not found in the body's her amb, and the ambry was not formed on the body of the victim, it is difficult to see that the above play equipment was generated in the course of the operation of the ambia). In light of the circumstances and parts of the occurrence of the ambia, it is highly probable that the victim was forced to be off his clothes by the type of force of the immediately preceding group before the death, and it is reasonable to view that the victim's use of such force was occurred in the course of rape, not in itself, in the course of murder.

(iii) the detection of blood and sperm in the victim's quality;

A) On the day of the instant case, the food service personnel collected the quality content of each x-ray 15 minutes after putting the x-ray in the middle of the quality of the victim by asking the x-ray on the day of the instant case, and then putting the x-ray into the inside to the extent of 15 minutes after crossing the x-ray (hereinafter “the first collection”). In addition, within the extent that the internal organ is not opened, strings into the inside inside the inside of the victim’s quality, and collected the quality content in the same manner (hereinafter “the second collection”).

However, in the first collection business, only colorless or colorless occupies, while in the second collection business, it was buried in the military of business in addition to the size of the possession, and the volume was 30-40%, and the Defendant's DNA (DN) was detected from the first and second extractions after appraisal (it is argued that the above point cannot be determined as a fixed amount, but there is little possibility that the amount collected within the victim's quality is different from that collected).

B) Meanwhile, in light of the fact that blood was detected only on the inside of the victim's quality, i.e., the fact that blood was detected only on the outside of the victim's quality, the fact that it was stated "from Mama law on Nov. 30, 200 among the multiple divers prepared by the victim," and the fact that the witness P, together with the victim, stated in this Court as the victim's relative, that "the victim is accurately memory that he was living" in this Court, the police, at the time of this Court, asked the victim's her mother, "I know that she was living," "I know that she was living in the past," and "I want that she was living in the process of time", the blood in the second collection is highly probable as the victim's physiological transfusion.

(iv)the results of experiments on the mixture of blood and semen;

A) In a case where a semen is added to plastic bags for food storage (i.e., single sanitary bags) and blood is put in and left away from actual temperature, the sperm and blood are not mixed with each other even after about 30 minutes elapsed, but even after about 6 hours and 30 minutes elapsed, the sperm and blood are gradually mixed with each other, but it is not completely mixed with the fact that the boundary is achieved.

B) However, in the event that a person sets a semen and blood in a astronomical state, he/she will mix approximately 5 minutes after the lapse of about 5 minutes, and will have a red color with a total of about 15 minutes after the lapse of about 15 minutes (the witness G’s legal statement and No. 240 emotional statement).

C) In light of the result of the above experiment, if the container containing a fixed amount and blood is not driven, the mixture is very rare, but if the container is driven, the mixture is rapidly proceeding.

5) The time close between gender relationship and death

As seen earlier, the secondary collection of blood was collected in a state where blood has not been mixed with the occupied amount, and in preparation for the result of the above experiment, it can be presumed that the victim discontinued his/her body movement within a short time to the extent that he/she does not have sufficient time to combine the blood of the victim with the sperm of the other party, and even the fact that the cause of stopping his/her movement is due to the death of the victim can be presumed as well.

6) Sub-decisions

Ultimately, considering the fact that the sexual relationship of the victim was forced against the will of the victim, that the sperm of the defendant was detected in the first and second extractions, and that the victim died immediately after the sexual intercourse, it is judged that the defendant used force such as assault and intimidation to commit rape against the victim, and immediately after that, the victim was killed by towing the victim under the F River water speed.

C. Determination on other issues

1) Possibility of sexual intercourse on the outer day of the instant case

The defendant raised the possibility of sexual intercourse by mutual consent with the victim prior to the date of the case.

However, in light of the time close between rape and murder mentioned above, it is judged that there is no possibility that the defendant had sexual intercourse with the victim prior to the case.

2) As to the photograph of February 4, 2001

The Defendant’s photograph taken on February 4, 2001 (No. 171) was seized to the prosecution on April 27, 2016. As to this, the Defendant became aware of the existence on October 3, 2015 (No. 10 of the Defendant’s submission). According to the above photograph, the Defendant went back to the appearance house located in the 0th Jinnam-gun of Gangnam-gun, Gangnam-gu at the time of the instant case, along with a female-gu N and Cho Q, etc. at the time of the instant case, at the time of the instant case, the Defendant did not stop from committing a crime at the time of the instant case. However, in light of the following circumstances, the above photograph was determined to have operated immediately after the instant crime, in preparation for the Defendant’s indictment as a criminal.

The Defendant kept copies 7 of the above photograph 7 from July 29, 2003. Since then, the Defendant was found to possess DNA (DA) such as a fixed amount of DNA (DA) detected in the first and second extractions as seen earlier, and was subject to the first police investigation on September 12, 2012, and was investigated four times from September 5, 2015 to October 3, 2015 (including the statement statement) at the police after the commencement of re-investigation, the Defendant cannot be argued that he was aware of the existence of the pictures at the expense of October 3, 2015, even though he was investigated four times from the police (including the statement statement) or four times from September 5, 2015. Rather, the Defendant was found to have concealed the existence of the pictures as it was likely to act in a disadvantageous operation evidence immediately after the crime.

Part 7 of the above photograph 7, one of the above photograph 7, was released from the house by the defendant's N on the road, and was active (the 6 machine head was taken on the background of the outer mix). Unlike the defendant's assertion that the N on the day became a house, the defendant was N on the house and she was her female on the house.

It is judged that the pictures were taken intentionally.

C. If the defendant alleged that he visited the appearance on the day of the crime because he was unable to visit the appearance on the New Year’s Day in 2001, it appears that this constitutes a substitute visit for a life-saving visit. It is very exceptional to see that the defendant was on the part of a high school student at the time of such a visit.

D. On October 10, 2015, the Defendant stated that the above pictures were found by chance and that they were a critical evidence to clarify his intention. However, a thorough examination of the Defendant’s attitude on the dialogue, the Defendant appears to have been aware that the contents of the conversation are recorded, and the Defendant was able to say that they were able to do so.

3) As to the place of crime, etc.

A) In light of the fact that the victim lost his cell phone on the day immediately preceding the case, the victim lost his cell phone on February 3, 2001, and around 22:55 on February 3, 2001, immediately preceding the outing of the country, and lastd about 40 minutes of the male-gu R and about 40 minutes, the victim finally connected the Internet site "S" at around 01:14 on the date of damage, and the defendant also got out of the country through the Internet site such as "S", it is determined that the victim got out of the country to meet the defendant (the victim was sent out to meet other men who are not the defendant on the day of damage, and the victim was not the defendant at the time of witnessing, even if the victim was not the defendant's day, it does not interfere with the recognition of the victim's situation where the defendant was found that the victim was in close vicinity between rape and murder as seen earlier).

B) As to the mobile method, the place of rape and murdering, the victim was found to have been discovered as the front and the body of the witness at around 03:30 on the day of the instant case by approximately 15km, and it is almost impossible for the victim to move the FG to the fG by means other than the car at the new wall time in February, and the Defendant was holding the mast vehicle at the time, and in light of the temporal distance between the rape and murder, the Defendant is determined to have raped the victim within the FG by burning the car as stated in its reasoning and killed the victim immediately.

Reasons for sentencing

The crime of this case is very bad to commit a crime of killing a female juvenile who is merely the defendant 17 years of age in the new wall by moving his personal body into a drone and committing rape. Nevertheless, the defendant asserts that he did not meet the victim or have a sexual intercourse, and does not seem to be denying the end of his criminal act, and does not seem to be against it.

Furthermore, in order to destroy evidence of crime, the Defendant attempted to conduct a criminal act, such as cutting off the clothes of the victim, leaving the body in the physical speed, leaving the female-friendly her body at the time, leaving him/her home with his/her hair, and photographing a photograph. After the investigation was conducted disadvantageous to him/her, the Defendant tried to conduct a preliminary act in response to the trial, along with other prisoners in prison, with the anticipated examination and the response thereto.

On the other hand, the victim, who was a woman of 17 years of age, was raped in the age of her blue and was killed with her blue without having been her blue, and was faced with the birth in this world. The victim was left alone in the body of the parents with loving the body immediately without immediately returning to the body, and was left alone in the body of dlue for a considerable time.

In addition, the bereaved family members did not know about the offender for a long period of 16 years near the 16 year ago and did not find the object of the victim, and must live without the victim's loss and sliffing. The father of the victim did not regard the offender as a crime, and he left this world according to the victim around 2009.

Considering the above circumstances and death penalty is a very cold punishment that deprives the human life of itself smoothly, and it is extremely exceptional punishment that can be presented by the dual judicial system of a marry state. Considering the degree of responsibility for the crime and the purpose of punishment, the sentence of death penalty is to be permitted only when there is an objective circumstance that can be justified in light of the degree of responsibility for the crime and the purpose of punishment, where there are special circumstances that can be justified, the sentence of death penalty is to be determined as follows: (a) the defendant is placed in life imprisonment rather than taking the life of a human being into consideration; (b) the defendant is placed in life imprisonment and is placed in a life imprisonment, thereby protecting our society by being reflected in society; and (c) it is determined that it is reasonable to have the victim and his/her bereaved family members who have lost their heavy lives caused by the crime of this case during the convict period and have time to reflect their mistakes. Therefore, the sentence

The presiding judge, judge and decoration;

Judges Lee Jae-ho

Chief Judge Judge

1) On August 7, 1997, the Defendant was sentenced to one year of imprisonment with prison labor for the crime of embezzlement of stolen goods possessed by the Seoul District Court, and completed the execution of the above punishment on March 16, 1998, and thus, the crime in the judgment is a repeated crime. However, the Defendant is a repeated crime under Article 35 of the Criminal Act, since he choose a punishment of life imprisonment for the crime in the judgment, so the Defendant

On the other hand, the crime of the judgment is a crime before the enforcement of the Act on the Registration of Personal Information, the Orders to Disclose and Notify Personal Information, and the imposition of matters to be observed at the time of issuing an attachment order is newly established as Article 9-2 of the Act on the Electronic Monitoring of Specific Sexual Offenders, which was amended by Act No. 9112, Jun. 13, 2008, but is not a transitional provision in the Addenda. Thus, the

2) However, although P stated that it was the fact that the victim was the birth of the victim, P made a statement at the police station, it is impossible to find such a statement in the protocol of statement prepared at the time.