2018Gohap61,2018Gohap347(Joint), Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

(13) Minor indecent acts by compulsion and inducement of indecent acts;

2018.Jacciny6 (Joint Attachment Orders)

Claimant

A

Kim Jong-Hy, Dog (Public Prosecution), Gangwon-gu (Public Trial)

Attorney Yoon Chang-chul

July 6, 2018

A defendant shall be punished by imprisonment for four years.

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

The summary of the sex offense to be disclosed and notified is limited to the crime of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (a minor under the age of 13).The request for the attachment order of this case is dismissed.

Criminal facts

【Criminal Power】

On June 26, 2018, the Defendant was sentenced to two months of imprisonment with prison labor in the Seoul Central District Court due to night residence intrusion theft, etc., and the said judgment became final and conclusive on July 4, 2018.

【Criminal Facts】

2018Gohap61

At around 13:30 on January 3, 2018, the Defendant discovered that the victim D (nick, 9 years of age) passes, and concluded that the victim “I am a handphone when I am a handphone? I am a handphone?” While I am a handphone, I am a handphone, I am a handphone according to I am a handphone? I am a handphone? I am a handphone. I am a son. I am a handphone. I am a knick. I am the victim. I am a knick. I am. I am. I am. I am. I am the victim.

Accordingly, the defendant committed an indecent act against the victim under 13 years of age.

“2018 Gohap347

1. Inducement of indecent conduct;

At around 15:00 on September 2, 2017, the Defendant: (a) discovered the victim G (n, 10 years of age) and the victim H (n, 10 years of age) who was living in the front of the Fel in Gangdong-gu Seoul, Gangdong-gu; (b) attempted to commit an indecent act; and (c) accessed the victims coming from the balon to the balon, who lost the balon when the inside of the balon was lost; and (d) accessed the victims to the balon, the Defendant: (a) got the balon from the victims by using the balon phone; (b) called “the balon, the balon, the bale, the bale, the balon, the bale, and the falon and the fal on the falon; and (b) induced the victims to commit an indecent act.

2. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a minor or indecent act);

(a) Crimes against the victim H;

On September 2, 2017, around 15:10 on September 2, 2017, the Defendant inducedd the victim in front of the F under the above paragraph (1) and committed an indecent act by using the victim’s head and hand with the victim’s own hand.

(b) Crimes against victim G;

1) The Defendant committed an indecent act by means of cutting and rhying the victim’s hand at the time and place of the foregoing 2. A, at the time and place.

2) On September 2, 2017, around 15:30 on September 2, 2017, the Defendant committed an indecent act in line with the Defendant’s head by sparing the victim’s own knife from the J 1st underground floor in Gangdong-gu Seoul, Gangdong-gu, with his knife and knife

3) Around 16:00 on September 2, 2017, the Defendant committed an indecent act in line with the victim’s seen and marin while getting on a taxi in Gangdong-gu Seoul, Gangdong-gu, Seoul, and moving to Ma in Gangdong-gu, Seoul.

4) On September 2, 2017, around 16:30 on September 2, 2017, the Defendant saw the victim as a hand before the M elevator located in Gangdong-gu Seoul Metropolitan City L, and committed an indecent act in line with the mash.

5) Around 17:00 on September 2, 2017, the Defendant committed an indecent act in line with the victim’s knee, seated with knee and kneed with kne and kneed with her hand.

Summary of Evidence

[2018Gohap61]

1. Defendant's legal statement;

1. stenographic records of statement of damage;

1. Investigation report (written statement by the reporter);

1. CCTV video-recordings (2018, 347);

1. Defendant's legal statement;

1. Statement of the police statement;

1. Stenographic records or stenographic records;

【Prior Records at the Time of Sales】

1. Application of Acts and subordinate statutes to the previous convictions, results of confirmation, and inquiry reports;

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, Article 298 of the Criminal Act (the occupation of indecent acts by compulsion against minors under the age of 13 in D, the choice of imprisonment), Article 288(1) of the Criminal Act, Article 7(3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 298 of the Criminal Act (the occupation of indecent acts by compulsion against minors under the age of 13 in H and G, and the choice of each

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

The punishment provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act and Article 37 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Aggravated Punishment of Minor Indecent Acts by Minor under Fifteen Years of Age) shall be aggravated.

1. Discretionary mitigation;

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

1. Order to complete programs;

Article 21 of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. An order for disclosure and notification;

1. The grounds for sentencing under Articles 49(1) and 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse; 1. The scope of punishment by law: Imprisonment with prison labor for a period of two years and six months from June to June 22

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

O Crimes of Violation of the Act on the Punishment, etc. of Sexual Crimes against D (Minors under the age of 13)

[Determination of Type 3] General Standard of Sex Offenses subject to Age 13 (Indecent Act by Compulsion)

【Special Exemplarys】 The degree of indecent conduct is weak;

[Recommendation and Scope of Recommendations] Reduction Area, 2 years to 6 years

(O) Violation of the Act on the Punishment, etc. of Sexual Crimes against G (a minor under thirteen years of age)

[Determination of Type 3] General Standard of Sex Offenses subject to Age 13 (Indecent Act by Compulsion)

【Special Exemplarys】 The degree of indecent conduct is weak;

[Recommendation and Scope of Recommendations] Reduction Area, 2 years to 6 years

O Crimes of Violation of the Act on the Punishment, etc. of Sexual Crimes against H (a minor under the age of 13)

[Determination of Type 3] General Standard of Sex Offenses subject to Age 13 (Indecent Act by Compulsion)

【Special Exemplarys】 If the degree of indecent conduct is weak, no penalty shall be imposed;

[Recommendation and Scope of Recommendations] Special Mitigation Area, one year to three years;

○ Crimes of Indecent Act Inducement

[Determination of Punishment] In the event of kidnapping and inducement human trafficking (including concealment, overseas transportation, transportation, and delivery), Chapter 2 (Indecent Conduct, Intermediating Marriage, Kidnapping for Profit-making)

[Specially Neither Person nor Person with Mental Capacity] Where the principal of the victim with mental capacity agrees, / Where the victim is under 13 years of age, or is in a physical or mental disability.

[Recommendation and Scope of Recommendations] Basic Field, one year to three years

○ The scope of final sentence due to the aggravation of multiple crimes: From June to February 2 years;

3. In light of the fact that: (a) the Defendant committed the instant crime on the street kiscing of the children, kiscing of her kis; (b) the victim at the time of forming a normal sexual identity and values due to the instant crime appears to have suffered considerable mental impulse; and (c) the sentence of sentence corresponding to the Defendant’s liability is inevitable.

However, the circumstances favorable to the defendant are taken into account such as the confession and reflect of the defendant's crime, the fact that the defendant did not focus on the degree of indecent act committed by the victims in the crime of this case, and the fact that the defendant was not punished with the same kind of power, etc. In addition, all sentencing outlines shown in the records and arguments of this case, including the defendant's age, character and behavior, environment, family relationship, motive and circumstance after the crime, etc., shall be determined by taking

Registration of Personal Information

Where a conviction becomes final and conclusive with respect to a crime in violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a minor and indecent act by compulsion) in each judgment, the defendant shall be 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. Therefore, the defendant shall submit

Meanwhile, with respect to the Defendant, a sex crime which causes the registration of personal information under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and other crimes are concurrent pursuant to Article 37 of the Criminal Act, and the period of registration of personal information resulting therefrom is 15 years pursuant to Article 45(1)3 and (2) of the Criminal Act. However, considering the nature of each of the crimes in this case and severity of the crimes, it is not recognized that it is unreasonable to determine the period of registration as above, and thus, the period of registration of personal information is not set more short-term.

Judgment on the request for attachment order

1. A summary of the cause of claim;

A person who is requested to attach an electronic tracking device is required to attach a location tracking device, because he/she committed a sexual assault against a minor under the age of 19 as stated in the judgment of 2018 Gohap61, and is likely to recommit a sexual assault against a minor under the age of 19.

2. Determination

A. The risk of recidivism of a sexual crime as prescribed by Article 5(1) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders means that the possibility of recidivism is insufficient solely on the basis of the possibility of recidivism, and that there is a probable probability that the person subject to a request to attach an order to an electronic device may de facto injure the legal 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 a request to attach an electronic device, the criminal conduct before the crime is committed, the motive, means, the circumstances after the crime is committed, the circumstances after the crime is committed, and such determination shall be based on the time of judgment in the future (see, e.g., Supreme Court Decision 2012Do337, 2012Do744, Apr.

B. In full view of the following circumstances found by the record, the prosecutor alone committed a sex crime again in the future beyond the possibility of re-offending by the person subject to the attachment order applicant.

It is difficult to conclude that there is considerable probability.

① As a result of the inspection conducted by the Korea E-SORAS on a sex offender subject to an attachment order, the risk of recidivism falls under the level of ‘high risk of recidivism' but falls under the level of ‘high risk of recidivism' (13-29 points in total), but falls under the level of ‘high risk of recidivism' (14 points in total), and the risk of recidivism as a result of the evaluation conducted by the selecter of a mental disorder (PCL-R) is also equivalent to the intermediate level. ② The risk of recidivism in the previous investigation conducted by the person subject to an attachment order is also an ‘interim risk of recidivism'. ② There is no record of sex offense other than the instant crime committed by the person subject to the attachment order for a short period.

(3) Where this judgment becomes final and conclusive, it is expected that the disclosure, notification, and registration of personal information, and the completion of sexual assault treatment programs will have significant effects on the prevention of recidivism by a person who requested an attachment order, the promotion of rehabilitation into society, and the correction of character and behavior in the future.

④ The electronic monitoring system under the Electronic Monitoring Act is a kind of security measure aimed at protecting citizens from sexual assault crimes (see Supreme Court Decision 2011Do5813, Jul. 28, 2011). As such, the provisions that stipulate the requirements for requesting an attachment order shall be strictly construed and applied in a manner that minimizes the infringement of fundamental rights as much as possible.

3. Conclusion

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, judges, and the Yellow Constitution

Judges Kim Gin-soo

Judges Kim Gin-young