2012Gohap1343 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (13 years of age)

Universal indecent act by compulsion of minors)

2013. Written order to attach (Joint) 10

Persons whose attachment order is requested;

this title (53 years old, South) , or in the absence of

Residential Suwon City

Kim Jong-young (Court Prosecution) and Courtroom (Courtroom)

Attorney Yoon Young-young (Korean National University)

March 22, 2013

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

The defendant shall order the completion of the sexual assault treatment program for 40 hours. The request for the attachment order of this case shall be dismissed.

Facts of crime

피고인은 2012. 12. 11. 13 : 45경 수원시 영통구 아파트 5단지 533동 3 - 4라인 엘리베이터에 안에서 피해자 김★☆ ( 8세 ) 과 둘이 있게 되자 피해자를 강제추행할 마음을 먹은 후, 피해자에게 " 몇 학년이냐 ? " 고 물어 보아 피해자가 2학년이라고 대답을 하자 " 2학년이나 돼 ? " 라며 피해자에게 다가가 피해자가 입고 있던 사파리형 점퍼 밑 부분으로 손을 뻗어 피해자의 바지 위로 피해자의 성기를 만져 13세 미만인 피해자를 강제추 행하였다 .

Summary of Evidence

1. Partial statement of the defendant;

1. Each prosecutor's protocol of examination of the accused;

1. Recording statements of victims;

1. Elevators CCTV images and photographs;

Application of Statutes

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

Article 7(3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and Article 298 (Appointment of Imprisonment)

1. Discretionary mitigation;

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

1. Order to complete programs;

Where a conviction becomes final and conclusive on the facts constituting a sexual crime subject to registration under the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 13 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, the accused is a person subject to registration of personal information pursuant to Article 33 (1) of the same Act, and the accused is obligated to submit personal information to the competent agency pursuant to Article 34 of the same Act

Matters concerning disclosure order and notification order

In full view of the fact that the Defendant appears to have committed the instant crime by contingently, that the Defendant has no record of punishment until now, the Defendant’s age, occupation, type and motive of the instant crime, the process and consequence of the instant crime, the degree of disadvantage and anticipated side effects of the Defendant due to disclosure or notification order, and the preventive effects of the instant sexual crime that may be achieved therefrom, etc., the disclosure order and notification order shall not be imposed on the Defendant, given that there are special circumstances where the disclosure of personal information as prescribed in the proviso of Article 38(1) and the proviso of Article 38-2(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse is prohibited.

1. Reasons for sentencing: Imprisonment with prison labor for a period of two years and six months to fifteen years;

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

(a) Determination of types: Sex crimes, general standards, sex crimes subject to the age of 13, and Type 3 (Indecent act by compulsion);

(b) A special-satis;

- Action mitigation elements: Where the degree of indecent conduct is weak;

(c) Scope of recommendations: Imprisonment for two years and six months to five years (the area of mitigation); and

3. Determination of sentence: The crime of this case for which 2 years and 6 months have been sentenced to imprisonment was committed by force in an elevator where the defendant committed an indecent act in the victim under 8 years of age who was the school was committed by the defendant, and the nature of the crime was bad; however, the defendant did not seriously reflect his own fault; the defendant seems to have suffered considerable mental impulse due to the crime of this case; on the other hand, the defendant committed the crime of this case; on the other hand, it seems to have caused the crime of this case by contingency; on the other hand, the degree of the indecent act of this case is not much serious; on the other hand, the defendant did not have any history of sexual crime; and on the other hand, all the sentencing factors as shown in the arguments of this case, such as the defendant's age, character and behavior, home environment, circumstances after the crime, etc., shall be determined within the scope of recommendation

Judgment on the Request for Attachment Orders

1. Summary of the cause of claim;

A person subject to a request for attachment order has committed a sexual crime by forcing a victim under 13 years of age to commit an indecent act, and is likely to recommit a sexual crime.

2. Determination:

The risk of recidivism of a sexual crime under Article 5 (1) of the Act on the Attachment of Electronic Monitoring, etc. of Specific Criminal Offenders means that the possibility of recidivism is insufficient solely with the possibility of the recidivism, and that there is a considerable probability that the person subject to the request to attach an order to attach an electronic device may injure the legal peace and peace by committing a sexual crime again in the future. The existence of the risk of recidivism of a sexual crime shall be objectively determined by comprehensively assessing various circumstances, such as the occupation and environment of the person subject to the request to attach an order to attach an electronic device, the criminal conduct before the crime is committed, the motive, means, circumstances after the crime is committed, the situation after the crime is committed, and the determination is based on the time of the judgment (see, e.g., Supreme Court Decision 2010Do7410, Dec. 9, 2010)

As to the instant case, it is difficult to view that the person subject to the attachment order, based on the following circumstances acknowledged by the evidence duly adopted and investigated by the court, who had been living without the previous conviction prior to the instant crime, and the instant crime appears to have been committed by the person subject to the attachment order, on the ground that the person subject to the request for the attachment order discovered the victim from the elevator and found the victim to be contingently cut off. In addition, it is difficult to view that the person subject to the request for the attachment order, based on the age, character and conduct, environment, and circumstances after the crime, is likely to recommit the sexual crime.

3. Conclusion

Thus, the request for the attachment order of the location tracking device of this case is without merit, and it is dismissed in accordance with Article 9(4)1 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders.

Judges Yoonn-heer of the presiding judge

Judges Yang Young-young

Judges in the order of precedence