2016Gohap1286 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Indecent Act by indecent act, attempted indecent act

2017Ma42(Joint Indecent Act by compulsion)

A

Yellow Na-young (Public prosecution), Gangwon-gu (public trial)

Attorney B (Korean National Assembly)

March 24, 2017

A defendant shall be punished by imprisonment for not less than two years and six months.

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

Criminal facts

Criminal Power

On July 15, 2016, the Defendant was sentenced to one year of suspension of the execution of imprisonment with prison labor for six months at the Seoul Central District Court for special intimidation, and the judgment was finalized on July 23, 2016, and on September 9, 2016, the Defendant was sentenced to four years of suspension of the execution of three years of imprisonment with prison labor for special robbery, etc. under the Hayang Branch Branch of the Jung-gu District Court was sentenced to three years of suspension of the execution on September 20, 2016.

Criminal facts

"2016 Gohap1286"

On November 5, 2016, at around 02:10 on November 5, 2016, the Defendant entered a room for the rest of staff “D” of the second floor of the Seoul Central Building, and tried to use “D” of the second floor of the Seoul Central District Office, and continued to drive the part of the victim’s terminal part on his hand, and continued to run the part of the victim’s terminal part on the floor, leading the Defendant’s panty and panty, and led the Defendant’s sexual organ on his hand.

Accordingly, the defendant invadedd the victim's room possessed by the victim and led the victim to indecent act by force.

"2017, 42"

On October 28, 2016, at around 20:20 on October 28, 2016, the Defendant stated that the victim F (n, 47 years of age) operated in Jung-gu Seoul, Seoul, “the victim will have only once milb,” and that the victim’s chest will be frighted with both descendants, and that the victim’s chest will be frightened from the victim out of the damage.”

As such, the Defendant attempted to commit an indecent act by force against the victim, but the victim did not have the intent to escape from the wind.

Summary of Evidence

"2016 Gohap1286"

1. Examination protocol of the accused by prosecution;

1. Statement to E by the police;

1. A written statement of the G production;

1. Name of the suspect, photograph of the place of crime, report No. 112, and written request for summary trial at the time of arrest;

1. Investigative reports (to hear statements from victims);

1. Previous records: Criminal history records, each written judgment, previous records of disposition, results of confirmation, reports, indictments, copies of case summary, written opinions, and written indictment;

[Defendant asserts that there is no fact of indecent act by compulsion of the victim. However, in full view of the following: (a) the victim’s statement on the date, time, place, and circumstance of the damage is consistent; (b) the photograph and witness G’s statement prior to the scene of the accident conforms to the contents of the victim’s statement; and (c) the Defendant led to the confession of the crime at the time of the police and the prosecutor’s investigation, the fact that the Defendant committed indecent act by compulsion

"2017, 42"

1. Defendant's legal statement;

1. The police statement concerning F;

1. Criminal place and investigation report (Attachment of related precedents);

1. Previous records of judgment: Criminal history records, etc. and reports on the previous records of each disposition and results of confirmation;

Application of Statutes

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

Article 3(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Articles 319(1), 298(a), 298(a) and (b) of the Criminal Act, Articles 300 and 298(a) of the Criminal Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Aggravation of concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes prescribed in the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with heavy penalty)

1. Discretionary mitigation;

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

1. Order to complete programs;

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

1. Article 47(1) and Article 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) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the fact that the completion of the registration of personal information against the accused and the sexual assault treatment program alone appears to have a certain degree of expectation on the prevention of recidivism; and other circumstances such as the Defendant’s age, family environment, social relationship, etc. revealed in the pleading of this case, disclosure and notification orders have a significant adverse effect on the Defendant’s disadvantage and anticipated side effects; however, the effectiveness of the prevention of sexual crimes which can be achieved by such disclosure and notification orders is deemed to be relatively less stated, and there are special circumstances in which the Defendant shall not disclose

Registration of Personal Information

Where a conviction of each crime subject to registration becomes final and conclusive, the accused is a person subject to registration of personal information under 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 agency under Article 43 of the same Act.

Reasons for sentencing

1. The scope of punishment by law;

From June to 20 years of imprisonment;

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

(a) Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

【Scope of Recommendation】

General Standard Indecent Act of Indecent Act of Indecent Act of Indecent Act of Indecent Act of Indecent Act of Indecent Act of Indecent Act of Indecent Act of Indecent Act of Indecent Act of Indecent Act of Indecent Act of Indecent Act of Indecent Act of Indecent Act of Persons

[Special Mitigation]

Where the exercise of tangible power is considerably weak, and the degree of indecent act is weak;

(b) Crimes of attempted indecent act by compulsion: The sentencing criteria are not applicable to the attempted crimes.

(c) Scope of recommending punishment after applying the standards for handling multiple crimes: Imprisonment with prison labor for not less than two years and six months (the lowest limit of the range of sentence recommended by the sentencing guidelines is inconsistent with the scope of applicable sentences under law, the lowest limit of recommending punishment shall be set at the lower limit of applicable sentences under law.

In addition, since the sentencing criteria are concurrent crimes with the attempted indecent acts by compulsion for which no sentencing criteria have been set, the upper limit of the recommended sentence shall not apply.

3. Determination of sentence;

Comprehensively taking account of the following: (a) the Defendant committed an indecent act against the victims by intrusion upon their residence at night, or attempted to commit an indecent act; (b) the victims of the instant case received considerable mental impulses; and (c) the Defendant committed the instant crime without being aware of the fact that the Defendant was in office during the period of suspension of execution, it is inevitable to punish the victims corresponding to the relevant criminal liability.

However, the degree of tangible power used by the defendant is weak, the degree of indecent act is not much serious, and the fact that the defendant recognizes his mistake as a substitute and reflects it is favorable for the defendant is considered as circumstances favorable to the defendant. In addition, all the sentencing conditions specified in the records and arguments of this case, including the defendant's age, family relation, character and conduct, environment, circumstances and results of the crime of this case, and circumstances after the crime, shall be determined as ordered.

The presiding judge, judges, and the Yellow Constitution

Judges Jong-jin

Judges Kim Jae-han