2013Gohap1262 Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof

Bans (name of recognized crime: Minor Rape, etc. under the age of 13:

The Act on the Punishment of Sexual Crimes and Protection of Victims

A violation (competence to minors under 13 years of age), sexual assault

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

Rape [Name of Crime Recognized: Protection of Children and Juveniles against Sexual Abuse]

Violation of the Act (compact, etc.)

2014. Consolidated Attachment Order (Consolidated)

Claimant

A

Jin-Jin-Jin (Court of Prosecution), Jin-Jin-Jin (Court of Justice)

Attorney B (Korean National Assembly)

March 28, 2014

A defendant shall be punished by imprisonment with prison labor for up to 11 years.

To order the accused to complete a sexual assault treatment program for 120 hours.

Information on the accused shall be disclosed and notified through an information and communications network for ten years (Provided, That the summary of the sexual crime notified shall be limited to the crimes in each of the subparagraphs of paragraph (2) of the ruling).

The request for the attachment order of this case is dismissed.

Criminal facts

1. Violation of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof (Minor Rape, etc.)

At around 22:00 on a 209, the defendant and the respondent for an attachment order (hereinafter referred to as the "defendant") had sexual intercourse with the victim under 13 years of age by inserting the panty of the victim by inserting the panty of the victim at the defendant's home located in Gangdong-gu Seoul Metropolitan Government (hereinafter referred to as "the victim D, a 10 years of age"), by reporting television at the defendant's home inside of the defendant's home located in Gangdong-gu Seoul Metropolitan Government, with the mind that the victim would have sexual intercourse with the victim, and making the victim cover the victim's bridge, and making the victim's bridge, "the victim's bridge, if the victim's gate is known, with the victim's gate," and inserting it into the victim's home, and inserting it into the victim's panty by force.

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

A. At around 20:00 to 21:00, the Defendant: (a) committed sexual intercourse with the victim in Gangdong-gu Seoul apartment parking lot, Gangdong-gu, Seoul; (b) in the vehicle, the Defendant: (c) stated that the said victim D (nick, 13 years old); (d) stated that “as soon as possible,” and made the victim enter the vehicle; (d) made the victim quickly; (e) fright the head of the wing who is seated by the victim; and (e) fright the victim behind the her seat; and (e) prevented the victim from getting out of the her will and panty; and (e) made the victim sexual intercourse with the victim, who is a child or juvenile, by inserting his/her sexual organ into the part of the victim, by force.

B. Around July 2013, the Defendant, at the small room of the Defendant GB02 of Gangdong-gu Seoul Metropolitan Government, committed sexual intercourse with a child or juvenile, by raising awareness that the said victim D (the age of 14) was locked, and by drinking the victim to have sexual intercourse with the victim, by drinking the victim’s chest and drinking part by drinking the victim’s chest and drinking part on his/her hand, and by prohibiting the victim from driving the victim’s panty in his/her bridge with his/her hand, thereby preventing him/her from driving the victim’s bridge on the bridge, thereby creating a gap in his/her panty, inserting the victim’s panty by inserting it into the sound part of the victim, and inserting the sexual organ into the part of the victim.

C. Around August 2013, the Defendant, at the above GB02, had other families gather and run the victim’s mixed computer game, and had the victim engage in sexual intercourse, with the intent of having the victim engage in sexual intercourse. The victim, with the inside of the victim, “as soon as possible,” and told the victim “as soon as possible,” and had the victim immediately feel sexual intercourse by inserting the victim’s sexual organ into the victim’s negative part on the Defendant’s boat, and inserting the victim’s sexual organ into the victim’s negative part, thereby having sexual intercourse.

D. On September 2013, the Defendant, at the above GB02, expressed “as soon as possible the victim’s sexual organ” to the victim at the inside of the GB02, and, by inserting the victim’s sexual organ into the part of the victim’s negative organ, had sexual intercourse with the victim who is a child or juvenile by force.

E. At around 08:50 on November 10, 2013, the Defendant: (a) committed sexual intercourse with the victim by reporting that the victim was locked at the small room above GB02; and (b) in response to the victim, the Defendant: (c) took the victim’s chests and part with the victim’s chests; (d) took the victim’s chests and part with the victim’s chests; and (e) made the victim unfolded with the victim’s legss; and (e) made the victim’s panty by putting the victim’s panty into the victim’s negative part; and (e) made the victim’s pantys and inserted the victim’s sexual organ into the victim’s negative part; and (e) made a sexual intercourse with the victim by force.

Summary of Evidence

1. Partial statement of the defendant;

1. Each statement made in D contained in each video recording CD;

Application of Statutes

1. Article applicable to criminal facts;

(a) The crime of paragraph (1) in its holding: Article 8-2 (5) and (1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (Amended by Act No. 10258, Apr. 15, 2010); Article 297 of the Criminal Act (a)

B. The criminal facts of Article 2(a) of the judgment: Article 7(5) and (1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 11572, Dec. 18, 2012);

(c) The facts constituting the crime of paragraphs (b) through (e) of Article 2: Article 7(5) and (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the occupation of “child and juvenile abuse” and the choice of limited imprisonment);

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [In addition, the lowest sentence shall be based on the punishment prescribed for the crime of violation of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof (referring to the punishment prescribed for the crime of deceptive means, etc.) committed on November 10, 2013, which is the largest sentence of punishment and punishment for the crime]

1. Order to complete programs;

Article 4 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Law No. 11572, Dec. 18, 2012) and the main sentence of Article 21(2) of the same Act

1. An order for disclosure and notification;

A. A crime No. 1 (limited to an order for disclosure): Article 49(1)1 of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 5(1) of the Addenda of the same Act (Act No. 11572, Dec. 18, 2012); Article 37(1)1 of the former Act on the Protection of Juveniles against Sexual Abuse (amended by Act No. 9765, Jun. 9, 2009; however, personal information provided to an order for disclosure is limited to perusal information under Article 37(4) of the former Act on the Protection of Juveniles against Sexual Abuse)

B. Crimes No. 2: Articles 38(1)1 and 38-2(1)1 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 11572, Dec. 18, 2012)

(c) Crimes of B through E under Article 2: Articles 49 (1) 1 and 50 (1) 1 of the Act on the Protection of Children and Juveniles against Sexual Abuse;

Registration of Personal Information

Where the conviction of a criminal facts in the judgment becomes final and conclusive, the Defendant is obligated to submit personal information to the competent authority pursuant to Article 32 of the former Act on the Protection of Juveniles against Sexual Abuse (amended by Act on the Protection of Children and Juveniles against Sexual Abuse, Act No. 9765, Jun. 9, 2009); Article 33(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11572, Dec. 18, 2012); Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and Article 5(1) and Article 43 of the same Act.

Judgment on the argument of the defendant and defense counsel

1. The assertion;

The facts of the crime set forth in Paragraph (1) of Article 2 include the fact that the victim made no sexual organ within the train, but did not engage in sexual intercourse. The remaining criminal facts have sexual intercourse with the victim, but there is no fact that there was no assault or intimidation against the victim.

2. Determination

The following circumstances are acknowledged by the evidence duly adopted and examined by the court: ① the victim was under the age of 10 through 14 at the time when the crime was committed; ② the victim was witness and promulgated at the time when the defendant was committed; ② the victim also made a statement that he would be able to do so; ② the defendant used it, ② the victim's body after the first crime was committed, ② the defendant met the body of the victim, ② the victim's body, and the victim's statement that "the victim was satisfy upon satisfy," ③ the victim's sound when she was frightd at home, if she was frightened by the victim's sexual intercourse, the victim prevented him from being frightened, or frightened by him; ④ the victim was unable to reach the victim when she was frighten, and the victim was unable to reach the victim's statement by exercising his influence and experience on the criminal facts as stated in the judgment.

Reasons for sentencing

1. Scope of punishment: Seven to forty-five years;

2. Application of the sentencing criteria;

(a) Basic crimes: Violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (compacting against a minor under the age of 13); and

[Determination of Punishment] Sex Offenses, General Criteria, Sex Offenses against the Age of 13, Type 5 (Maternity)

[Special Aggravationd Persons] Aggravationd: For habitual offenders:

[General Sentencing] Aggravations: Aggravations for criticism

[Recommendation and Scope of Recommendation] Aggravation, 11 year to 15 years

(b) Concurrent crimes: Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse;

[Determination of Punishment] Sex Offenses, General Criteria, rapes (subject to at least 13 years of age), Type 2 (competence of Juvenile Abuse)

[Special Aggravation] Aggravations: In the case of a victim or habitual offender who is vulnerable to a crime;

[General Aggravation] Aggravations: In the event of motive for criticism, in the case of a person with a relationship of kinship, in the case of a crime against a juvenile

[Recommendation and Scope of Recommendations] Aggravation, 6 years to 13 months

(c) Criteria for handling multiple crimes;

[Decision of Recommendation] Imprisonment from 11 to 26 years (=15 years + 13 years + 6 months + 1/2 + 13 years x 6 months x 1/3)

3. Determination of sentence: 11 years of imprisonment; and

Although the defendant has some favorable circumstances, such as the fact that the defendant was not healthy at Grade 3 due to visual disability, there is no history of sex crime, and there is no criminal record, the defendant is a victim who is a blshel parent of an elementary school.

1) Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010) provides that since the upper limit of imprisonment is 15 years pursuant to the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010), more punishment than that of Article 2 in the judgment below, which was lower than 30 years following the amendment of the above provision, is unfilled, but as seen thereafter, the upper limit of the sentencing range in the sentencing criteria of Article 1 in the judgment below is higher than that of Article 2 in the judgment below, the crime No. 1 in the judgment below was a basic crime. The crime was committed by force continuously for five years from the beginning of the school year, and even if the victim continued to receive treatment of sexual assault after the beginning of the school year, it is inevitable to deny the Defendant’s criminal act without efforts to recover damage or serious death, the sentence equivalent to the Defendant’s liability is determined as a sentence.

Judgment on the request for attachment order

1. Summary of request;

In light of the fact that the Defendant committed a sexual crime against a victim under the age of 19 on six occasions every five years, it is recognized that the risk of recommitting a sexual crime and a sexual crime is likely to recommit.

2. Determination

The risk of recidivism of a sexual crime as prescribed by Article 5(1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders means that the possibility of recidivism is insufficient solely on the basis of the possibility of repeating the crime, and that there is a probable probability that an applicant for an attachment order 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 applicant for the attachment order, the conduct before and after the crime, the motive, means, circumstances after the crime, the situation after the crime, and the situation after the crime, etc., and such determination shall be based on the time of judgment since it is a constructive judgment on the future (see, e.g., Supreme Court Decision 2010Do7410, Dec. 9, 20

In light of the aforementioned legal principles, the following circumstances revealed by the records: (i) the Defendant had no record of punishment for a sex offense in the past; (ii) the Defendant’s risk assessment of a sex offender in the Republic of Korea (K-SOAS); (iii) the risk of recidivism was expressed at the intermediate point of 17 points as a result of the assessment of the risk of recidivism in the middle point of 12 points; and (iv) the total point of the risk of recidivism was expressed at the intermediate point of 17 points; and (iii) the crime in the instant case was seen as a special relation of kinship, and the need for the attachment of a location tracking device is no longer high compared to the crime committed against many unspecified persons, it is difficult to readily conclude that the Defendant had a force of committing a sex crime again in the future after a long period of time under the judgment of the instant case.

Therefore, the request for the attachment order of this case is dismissed in accordance with Article 9(4)1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders on the ground that it is not reasonable.

The presiding judge shall be a judge.

Judges Kim Gung-sung

Judge Freeboard