2018Gohap145 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Act by Compulsion)

A

Hands (prosecutions) and Kim Jong-chul (public trial)

Attorney B (Korean National Assembly)

April 20, 2018

A defendant shall be punished by imprisonment for one year.

However, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive, and the defendant shall be ordered to attend the sexual assault treatment lecture for 40 hours.

Punishment of the crime

The defendant and the victim C (11 years of age, 11 years of age) are not known to each other.

피고인은 2017. 8. 12. 21:35 경 부천시 D에 있는 버스 정류장 앞 도로에서 술에 취하여 버스를 타러 가던 중 때마침 반대편에서 피해자가 친구들과 함께 길을 걸어오는 것을 발견하고 피해자에게 다가가 갑자기 손으로 피해자의 젖꼭지를 꼬집었다. 이로써 피고인은 폭행으로 아동·청소년인 피해자를 추행하였다.

Summary of Evidence

1. Defendant's legal statement;

1. Records of statements made by victims;

1. Statement and analysis expert opinion of children with disabilities:

Application of Statutes

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

Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and Article 298 of the Criminal Act

1. Discretionary mitigation;

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

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

1. Order to attend lectures;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Exemption from an order for disclosure and notification;

In full view of 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 Act on the Protection of Children and Juveniles against Sexual Abuse on the grounds that there was no record of punishment for the same crime prior to the crime in this case, and thus, it is difficult to conclude that the defendant is in danger of sexual assault or re-offending; the registration of personal information of the defendant and the attending order on the sole basis of the defendant appears to have a certain degree of effect on the prevention of re-offending; and other circumstances such as the disadvantages and side effects likely to be suffered by the defendant due to the disclosure order or the disclosure order and the defendant's age, occupation, family environment, social relationship, motive, means, and consequence of the crime in this case, it is deemed that there are special circumstances that the personal information of the defendant shall not be disclosed

2. Reference sentencing criteria 1);

[Determination of Kind] General Criteria for Sex Offenses Act (subject to the age of 13 or above) 2 types (including indecent act by compulsion of juveniles)

[Special Mitigation Elements] Where the degree of indecent conduct is weak;

[Extent of Recommendation] One year to two years (in the case of juvenile indecent act, since it is the case of indecent act by compulsion of juveniles, one year and six months to three years, which is the scope of sentence in the area of mitigation of category 2, shall be mitigated to 2/3)

3. 선고형의 결정: 징역 1년, 집행유예 2년이 사건은 피고인이 길거리에서 전혀 모르는 사이인 피해자의 젖꼭지를 갑자기 꼬집어 추행한 것이다. 이 사건 범행으로 인해 11세의 어린 나이인 피해자가 적지 않은 성적 수치심과 정신적인 충격을 받았을 것으로 보인다. 이는 피고인에게 불리한 정상이다.

However, the Defendant led to the Defendant’s confession and reflect on the instant crime. In addition, the Defendant appears to have led to the instant crime somewhat contingent, and the degree of the instant indecent act is not very serious. Meanwhile, in light of the fact that the Defendant did not have any criminal record more than the same criminal record and suspended execution, and that the Defendant’s family members wanted to take the Defendant against the Defendant, it appears that the Defendant has maintained a smooth family life. This is the circumstances favorable to the Defendant.

In addition, the punishment as ordered shall be determined by comprehensively taking into account the various circumstances that serve as the conditions for sentencing, such as the age, character and conduct, environment, motive, means and method of committing the crime, and the scope of recommended punishment according to the sentencing guidelines.

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

It is so decided as per Disposition for the above reasons.

The presiding judge and the deputy judge;

Regular Category of Judges

For judges the last place:

1) The victim is under 13 years of age at the time of committing the crime of this case, according to the item 3 of the "Type 3 (Indecent Act by compulsion)" among the sentencing guidelines for sex crimes.

However, only Article 7(3), (4), and (5) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes shall be applicable as applicable provisions of the Act.

The instant crime was prosecuted pursuant to Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and thus, the prosecutor’s indictment was made.

It refers to the second type of ‘the crime of indecent act by indecent act by indecent act by indecent act by indecent act by juveniles' among ‘the crime of indecent act by indecent act by indecent act by juveniles over 13 years old