(영문) 서울중앙지방법원 2018.7.6. 선고 2018고합383 판결

Information on a defendant shall be disclosed and notified through an information and communications network for five years. An order to attach an electronic tracking device to a person subject to an application for an attachment order shall be issued for six years. The matters to be observed, as described in the attached Form, shall be imposed on the person subject to

Reasons

Criminal facts and the facts constituting the cause of the attachment order

[criminal record] On July 21, 2015, the Defendant and the respondent for an attachment order (hereinafter “Defendant”) were sentenced by the Seoul High Court to imprisonment with labor for a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape), and completed the execution of the above sentence on July 17, 2016.

【Criminal Facts】

On July 2017, the Defendant knew that the victim D (e.g., 14 years of age, intellectual disability 3 level) known through the video-recording mobile application called "C" was in the second grade of middle school, but the intellectual ability was considerably different from that of middle school, and used this fact to have sexual intercourse with the victim.

1. On August 15, 2017, the Defendant exceeded all clothes of the victim at the Defendant’s office located in Gwanak-gu in Seoul Special Metropolitan City, and inserted the victim’s sexual organ into the negative part of the victim’s office.

2. Around September 26, 2017, the Defendant exceeded all clothes of the victim at the place specified in the foregoing paragraph (1) at night, and inserted the victim’s sexual organ into the negative part of the victim.

3. On October 19, 2017, the Defendant exceeded the clothes of the victim at the victim’s house located in F of Eunpyeong-gu Seoul Eunpyeong-gu, Seoul, and inserted his/her sexual organ into the sound part of the victim. Accordingly, the Defendant had sexual intercourse three times with the victim, who is a disabled child or juvenile with weak ability to discern things or make decisions due to physical or mental disorder.

【Fact of Grounds for Attachment】

The Defendant, at the Seoul High Court on July 21, 2015, committed a sex crime again against a child or juvenile who has a physical or mental disability under the age of 19 on at least two occasions after having been sentenced to imprisonment with prison labor for one year and six months on July 17, 2016, and having been sentenced to imprisonment with prison labor on the following facts: (a) he was sent to a female child or juvenile under the age of 15, who was aware of through the early 2014, and was sent a photograph of face, chest, sound, etc. from the above juvenile, and then sent such photograph to him, and then distributed the above photograph on the Internet; and (b) was attempted to rape the above juvenile; and (c) was sentenced to imprisonment with prison labor on July 17, 2016; and (d) the execution of the above sentence was completed, and (d) was committed again on more than two occasions, and thus, is highly likely to commit such a sex crime under similar circumstances, taking into account the Criminal Act, Defendant’s status, career,

Summary of Evidence

1. Defendant's legal statement;

1. Stenographic records of D;

1. Analysis of statements on sexual assault against children and persons with disabilities;

1. Details of hosting;

1. Copy of welfare card, report on psychological evaluation, result of individual education plan for individual learning teams, comprehensive opinion on student life, and notice of the result of placement of persons eligible for special education;

1. Previous records of his/her judgment: Criminal records, correspondence records, results of the search of prisoners, and internal investigation reports (absent of the same criminal records and a copy of the judgment of the suspected criminal suspect A);

1. The risk of recidivism of a sexual crime as indicated in the judgment: (a) the following circumstances revealed by the aforementioned evidence and the written investigation before the request; (b) the Defendant was sentenced by the Seoul High Court on July 21, 2015 to imprisonment with prison labor and completion of sexual assault treatment programs for 80 hours due to the crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse; and (c) the Defendant committed the instant crime at multiple times after the execution of the above imprisonment with prison labor; (c) the contents of the criminal offense and the instant crime were intended for young offenders aged 14 and 15; and (d) the number of criminal offenses were considerably similar to those approaching the victim through the mobile phone display system; and (d) the instant crime was continuously conducted three times for one victim; and (e) the risk assessment of recidivism of the Defendant’s sexual crime against the Defendant is considered to be the highest level of recidivism and the risk of recidivism by the Defendant’s total risk of recidivism at least 12, as a result of the evaluation of recidivism risk of the Defendant’s sexual crime.

Application of Statutes

1. Article applicable to criminal facts;

Article 8 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Aggravation for repeated crimes;

Articles 35 and proviso of Article 42 of the Criminal Act

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, Article 50, and the proviso to Article 42 of the Criminal Act [a person who commits concurrent crimes with the punishment prescribed in the Act on the Protection of Children and Juveniles against Sexual Abuse (Sexual Intercourse with Disabled Persons)]

1. proviso to Article 16 (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Subject to Failure to complete a program (the defendant is subject to an order to complete a program under Article 9-2 (1) 4 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, and no order to complete a program may be

1. An order for disclosure and notification;

Articles 49(1) and 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Issuing an order to attach an electronic tracking device and matters to be observed;

Article 5(1)1, 3, and 4, Article 9(1)2, Article 9-2(1)3 and 4, Article 9-2(1)3 and 9-2(1)4 of the Act on the Probation, Electronic Monitoring, etc. of Specific Criminal Offenders; 1. The scope of punishment by law: Three years to 50 years;

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

(a) Crimes under subparagraphs 1, 2, and 3;

[Determination of Punishment] General Criteria for Sex Offenses Act (13 or more years of age)

[Special Persons] A repeated offense not falling under a special lecture (Cumulative Offense)

[Recommendation Area and Penalty] Aggravation, 4-6 years of imprisonment

(b) The scope of final sentence due to the aggravation of multiple crimes: Four to eleven years of imprisonment (six years of imprisonment) ＋ the upper limit of the second crime + 1/2 (3 years of the upper limit of the second crime + 1/3 (2 years) of the upper limit of the third crime);

3. The case involving a sentence of sentence is highly likely to be a crime of having sexual intercourse with a victim, who is a young juvenile with intellectual disability, on three occasions. The Defendant committed the instant crime against a young juvenile with no knowledge of having been sentenced to one year and six months of imprisonment due to a crime similar to the instant case, and only one year and six years, and multiplely disabled juveniles. A sex offense against a disabled juvenile with lack of ability to exercise the right to sexual self-determination due to intellectual disability and age, such as the victim, may affect the sound growth of the disabled juveniles, and thus, need to be punished more strictly. The Defendant’s criminal act appears to have suffered considerable mental and physical pain. These circumstances are the circumstances unfavorable to the Defendant.

However, the sentencing conditions, such as the defendant's age, character and conduct, environment, motive and means of crime, and the scope of recommended punishment according to sentencing guidelines, shall be determined as ordered by comprehensively taking into account the following factors: (a) the defendant's family members appeal against the defendant, etc.; and (b) the defendant's family members appeal against the defendant; and (c) the defendant's family members appeal against the defendant.

Registration of Personal Information

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is a person subject to registration of personal information pursuant to 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 pursuant to Article 43

Judges

The presiding judge and the deputy judge;

Regular Category of Judges

For judges the last place:

Note tin

1) The criteria for the assessment of the degree of risk of recidivism of Korean sex offenders are 0-6 points, 3-29 points, 13-29 points, 3-6 points, 3-12 points, and 13-29 points.