Defendant

Both parties

Maternity Officer (Court of Second Instance), Maternity (Court of Second Instance)

Attorney Park Sung-ho

Ulsan District Court Decision 2013Gohap123 Decided January 24, 2014

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

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

The information on the accused shall be disclosed and notified through an information and communications network for five years.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misunderstanding of legal principles

Even if the Defendant committed an indecent act or sexual intercourse with a victim, the Defendant does not have any fact of assault or intimidation in the process, and thus, the Defendant is not guilty. Even if the Defendant exercised some tangible power against the victim, this constitutes a deceptive scheme and force, and thus, Article 6(5) and (6) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes ought to be applied.

2) Unreasonable sentencing

The sentence of the court below against the defendant (three years and six months of imprisonment) is too unreasonable.

(b) Prosecutors;

The sentence of the court below against the defendant is too unjustifiable.

2. Judgment on the Defendant’s assertion of mistake of facts or misapprehension of legal principles

A. Determination on the act of indecent act by compulsion around July 201 to August 8, 201

1) Summary of the facts charged

The Defendant, while residing in an apartment complex such as the victim Nonindicted Party 3 (Influence, brain disease, and physical disability 1st degree, 1972), was aware that the victim was disabled, and that there was no decentralization on the judgment of the company, such as recognition ability and memory, as a disabled person. On July 8, 201 through July 8, 201, the Defendant: (a) induced the victim, who was playing in the vicinity of the elderly at the Gulsan-gu, Ulsan-gu, Ulsan-gu, 102, 102, and later, led the victim to the victim’s sexual organ, forced the victim to take off his sexual organ, brought about the victim’s hand, brought about the victim’s sexual organ, and led the victim to the victim’s sexual organ by force.

2) The judgment of the court below

The court below acknowledged, based on the evidence of the court below, the facts that the defendant had the victim's hand who did not want to do so, and that the defendant did not speak to the victim's parent after committing the crime, and that the victim did not think that the victim's parent was erroneous, and that the victim was a disabled person of class 1 of the brain disease or physical disability, which shows symptoms such as the overall recognition ability decline, the concentration of caution decline, advancement, physical disability, etc., and determined that the defendant committed the crime of this case by force by force against the victim's will, in light of the circumstance of the crime of this case, the victim's state, and the circumstances after the crime of this case and the crime of this case, the court below held that the defendant committed indecent act by force.

3) The judgment of this Court

In light of the evidence duly adopted by the court below in light of the records, the above judgment of the court below is just and acceptable, and there is no error of misunderstanding of facts or misunderstanding of legal principles.

B. Determination on the conduct of indecent act by compulsion and rape around May 2012

1) Summary of the facts charged

(A) On May 2012, the Defendant: (a) on the part of the (vehicle number omitted) options owned by the Defendant, which was stopped after the head of Ulsan-gu, Ulsan-gu, U.S., U.S., the Defendant committed indecent act by force by force on the part of the victim, such as: (a) on the part of the (vehicle number omitted); (b) on the part of the (vehicle number omitted); (c) on the part of the Defendant, the victim was playing in the ○ apartment senior citizens’ zone; and (d) on the part of the Defendant’s vehicle; (d) on the part of the Defendant’s vehicle; and (e) on the part of the victim, the victim’s hand away at the above place; and (e) by force

(나) 피고인은 2012. 5. 일자불상 저녁 무렵에 울산 북구 매곡동에 있는 △△△ 입구 체육공원에 정차된 피고인 소유의 (차량번호 생략) 옵티마 차량 내에서 피해자의 바지를 강제로 벗기고 “씨발년아 빨리 빨아라, 씨발년 니 보지에 오빠야가 물 한번 쫙쫙 쏴줄게.”등 욕설을 하며 피고인의 성기를 입으로 빨도록 한 후, 피해자의 음부에 피고인의 성기를 삽입하여 피해자를 1회 강간하였다.

2) Determination

(A) The crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes is established where the perpetrator makes it impossible or considerably difficult to resist the disabled victim. Whether the perpetrator’s assault and intimidation has committed considerable difficulty in resisting the victim should be determined based on the specific situation in which the victim was faced at the time of sexual intercourse, taking into account all the circumstances, including the content and degree of assault and intimidation, the background leading up to exercising force, the relationship with the victim, and the circumstances at the time of sexual intercourse, etc.

(B) Therefore, with respect to the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Indecent Act by Compulsioning Persons with Disabilities), the victim was present at the police on November 2, 2012 and made a statement to the effect that “I have to leave the vehicle on the port,” which means “I have to leave the vehicle on the port. I have to do so. I have to do so, so, and that I have to leave the house only when I have come to know. I have to leave the vehicle on the side. I have made a statement to the effect that I have to leave the vehicle on their own. I have not expressed a desire to do so.” Accordingly, it is difficult to view that the victim was unable to resist the victim in the course of committing an indecent act against the victim at the time and there is no other evidence to acknowledge it.

Next, with respect to the punishment, etc. of sexual crimes, the following circumstances acknowledged by the victim's statement at the investigative agency or court of the court below, namely, ① from July 201 to May 8, 201, the defendant moved the victim from time to time to time after his/her initial indecent act, and attempted to commit an indecent act on every occasion in the vehicle. Nevertheless, the victim appears to have been unsatisfed by the defendant, and ② the defendant appears to have been forced to express his/her desire against the victim as stated in the facts charged, but it is difficult for him/her to view that it was difficult for him/her to use the victim's statement to the effect that it was impossible for him/her to use the victim's sexual intercourse, and that it was impossible for him/her to use the victim's sexual intercourse with the victim's sexual intercourse, and that it was impossible for him/her to use the victim's sexual intercourse with the victim's sexual intercourse with the victim's sexual intercourse with the latter's statement of the police officer.

Nevertheless, the lower court found the Defendant guilty of this part of the facts charged and erred by misapprehending the legal doctrine on rape and indecent act by compulsion of persons with disabilities, thereby adversely affecting the conclusion of the judgment.

(C) Meanwhile, the crime of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes is established when a person with a physical or mental disability has sexual intercourse or commits an indecent act. In this case, the term "defensive force" means a force sufficient to suppress the victim's free will. Since it is not tangible or intangible, it is possible to use the social, economic, and political status or authority of the offender as well as assault and intimidation. Whether a person has sexual intercourse or an indecent act by force is determined by comprehensively taking into account all the circumstances such as the content and degree of force used, degree or type of force used, age of the victim, relationship between the offender and the victim, circumstances leading to such act, specific manner leading to such act, and circumstances at the time of the crime (see, e.g., Supreme Court Decision 2008Do4069, Jul. 24, 2008).

이 사건에 관하여 보건대, 원심이 적법하게 채택한 증거들에 당심에서 채택한 증거들을 보태어 보면 인정되는 다음과 같은 사정들, 즉 ① 피해자는 1972년생으로 고등학교에 다닐 무렵 윌슨씨병이 발병하여 뇌병변 · 지체 장애 1급 진단을 받았고, 현재까지 지속적인 약물치료를 받고 있는 점, ② 피고인은 위와 같은 장애로 인지 기능의 저하, 주의집중력 저하, 사회성숙도 및 사회적 기능 수준의 저하를 보이고 있고, 근육 강직 등의 운동장애와 언어장애까지 함께 보이고 있으며, 이러한 장애가 있다는 것은 피해자와 대화를 나누어 보면 누구라도 쉽게 알 수 있는 정도라는 점, ③ 피해자는 부모를 따라 아파트 단지 내 노인정 등을 출입하면서 노인정 등에서 만난 아파트 주민들 중 주로 성인 남성들을 상대로 과자를 사달라거나, 같이 놀러가자는 등의 다소 유아스러운 부탁을 하였고, 피해자의 부탁을 들어주는 사람에게는 더욱 매달리는 모습을 보이기도 한 점, ④ 피고인은 피해자의 위와 같은 어리광을 비교적 잘 받아주면서 피해자와 친해지게 된 것으로 보이고, 피해자도 자신에게 잘 해주는 피고인에게 차를 태워달라는 등의 부탁을 자주한 것으로 보이는바, 피고인은 피해자를 차에 태울 때마다 인근의 한적한 곳으로 데려가 피해자를 상대로 추행을 시도하였고, 피해자는 그때마다 싫다는 의사를 밝힌 것으로 보이는 점, ⑤ 피해자는 수사기관에서 2012. 5.경 추행과 관련하여 ‘○○슈퍼 뒤편의 밭에 정차된 피고인의 차량에서 피고인이 자신의 성기를 꺼내어 만지라고 하였다. 매번 차에 타면 성기 내놓고 빨아라고 하고 싫다고 하면 또 머리잡고 빨아라고 한다.’는 취지의 진술을 하였고, 비슷한 시기의 간음과 관련하여서도 ‘싫다고 하는데도 머리를 눌러서 빨게 하였다. 안 빨아주면 씨발년아 욕하고 그래서 나는 할 수 없이 빨았다. 성관계를 했는데 기분이 나빴고 피고인이 강제로 한 것이다.’는 취지의 진술을 하였는바, 이와 같이 피고인이 싫다는 의사를 분명히 밝힌 피해자를 상대로 자신의 성적 흥분을 위해 거친 욕설을 하고, 피해자의 머리를 강제로 자신의 성기 쪽으로 누르는 등의 유형력을 행사한 점, ⑥ 차량 안이라는 좁은 공간에서 이루어 진 이와 같은 거친 욕설과 유형력으로 인해 신체적·정신적인 장애를 가진 피해자의 입장에서는 상당한 압박감을 느낀 것으로 보이고, 그렇지 않더라도 그동안 원만하였던 피고인과의 관계가 단절될지 모른다는 생각에 피고인의 요구를 마지못해 받아들인 것으로 보이는 점 등을 모두 종합하여 보면, 피고인이 피해자에게 한 욕설과 머리를 누르는 등의 유형력의 행사는 성폭력범죄의처벌등에관한특례법위반(장애인위계등간음)죄 및 성폭력범죄의처벌등에관한특례법위반(장애인위계등추행)죄에 있어서의 ‘위력’에 해당한다고 볼 수 있다.

(D) In a case where the court recognizes a minor criminal facts included in the criminal facts charged within the scope that is identical to the facts charged, if it deems that there is no concern about causing substantial disadvantages to the defendant's exercise of his/her right to defense in light of the progress of the trial, it may, ex officio, recognize criminal facts different from the facts charged in the indictment, even if the indictment was not modified. Each of the above facts charged includes criminal facts in violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (e.g., Crimes against Persons with Disabilities) and the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Indecent Acts such as Fraudulent Means against Persons with Disabilities) based on the same facts, and the identity of the facts charged is recognized. In addition, the defendant did not assault or threaten the victim in the process of continuously engaging in sexual intercourse or indecent act, even if he/she exercised his/

Therefore, the defendant is guilty of violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Indecent Act by fraudulent means, etc.).

3. Conclusion

Therefore, the defendant's argument on the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape with Disabled Persons) and the Act on Special Cases Concerning the Punishment, etc. of Violence Crimes is with merit. Since the defendant's grounds for appeal accepted and the part which the court acquitted the defendant and the crime of indecent act by compulsion which the court acquitted is a concurrent crime under the former part of Article 37 of the Criminal Act, the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without examining the defendant's and prosecutor's argument

The summary of the facts constituting the crime and the evidence acknowledged by this court is based on the following (known criminal facts) paragraphs (2) and (3) of the facts constituting the crime of the judgment below, and the summary of the evidence is cited in the summary column of the evidence, except for adding “1. Part of the Defendant’s trial in the trial room” and “each legal statement in the trial room of Nonindicted 1 and 2 of the witness 1. witness 1. Nonindicted 1 and 2” as stated in each corresponding column of the judgment of the court below, thereby

【Recognized Crime】

2. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

피고인은 2012. 5. 일자불상 저녁 무렵에 울산 북구 매곡동에 있는 △△△ 입구 체육공원에 정차된 피고인 소유의 (차량번호 생략) 옵티마 차량 내에서 피해자의 바지를 강제로 벗기고 “씨발년아 빨리 빨아라, 씨발년 니 보지에 오빠야가 물 한번 쫙쫙 쏴줄게.”등 욕설을 하며 피고인의 성기를 입으로 빨도록 한 후, 피해자의 음부에 피고인의 성기를 삽입하였다.

Accordingly, the defendant has sexual intercourse with the victim who has a physical or mental disability by force.

3. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

On May 1, 2012, the Defendant: (a) within the (vehicle number omitted) options owned by the Defendant (owned by the Defendant) who was stopped after the head of Ulsan-gu, Ulsan-gu, U.S. (hereinafter “S.”), the Defendant committed an indecent act against the victim, such as inducing the victim to play in the ○ apartment senior city, and inducing the victim out of the ○○ apartment city; and (b) inducing the victim to go on the Defendant’s car; and (c) inducing the victim to go back to the said place even though the victim expressed his intention of refusal; and (d) inducing the victim to go out of his will and to keep the sexual organ back; and (e) inducing the victim to talk with his opinion of refusal.

Accordingly, the defendant committed an indecent act against the victim with a physical or mental disability by force.

1. Article applicable to criminal facts;

Article 298 (Indecent Act by Indecent Act, Selection of Imprisonment), Article 6 (6) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 11556, Dec. 18, 2012; hereinafter the same shall apply), Article 6 (5) of the Criminal Act (Indecent Act by Dec. 18, 201; hereinafter the same shall apply)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with the punishment prescribed in the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, which is the most severe punishment]

1. Discretionary mitigation;

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

1. Order to complete programs;

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

1. Order to disclose and notify;

Articles 37(1)1 and 41(1)1 of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

The fact that there is no particular criminal force except for the defendant who was sentenced to a fine due to the violation of the Act on Special Cases concerning the Settlement of Traffic Accidents in 1996, there is a small child who suffers from the wife and high crypam needed to support the defendant, and that the defendant paid a considerable amount of money at the court below and agreed with the victim is favorable to the defendant.

On the other hand, each of the crimes of this case is the circumstances unfavorable to the defendant, such as the fact that the defendant committed a indecent act by compulsion of the victim with physical and mental disability, sexual intercourse by force, and the nature of the crime is very poor and moral criticism. The defendant agreed with the victim at the court below, but the defendant was under the agreement with the victim at the court below, but the defendant was again under the circumstance that the victim was at the risk of action of the defendant after agreement.

In full view of the aforementioned conditions of sentencing, such as the defendant's age, occupation, character and conduct, environment, motive and background of the crime, means and consequence, etc., which are disadvantageous or favorable to the defendant, and other factors of sentencing as indicated in the argument of this case, the punishment shall be determined as ordered.

Where a judgment of conviction becomes final and conclusive against a defendant, the defendant constitutes a person subject to registration of personal information under Article 32(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and is obligated to submit personal information to the competent agency in accordance with Article 43 of the Act on Special Cases

Of the facts charged in the instant case, the summary of the charge of indecent act by force and rape around May 201 is as indicated in the foregoing 2-B(1). As examined in the foregoing 2-B(2), it is insufficient to acknowledge conviction only with the evidence submitted by the prosecutor, and there is no other evidence.

Therefore, this part of the facts charged shall be sentenced to innocence under the latter part of Article 325 of the Criminal Procedure Act because there is no proof of a crime. However, since the facts charged include each charge of violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Indecent Act by Fraudulent Means, etc. against Persons with Disabilities), it shall not be sentenced to innocence in the separate text of the Criminal Procedure Act, unless it is found that each guilty of violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Indecent Act

Judges Lee Jae-soo (Presiding Judge)