(영문) 서울중앙지방법원 2019.1.25. 선고 2018고합905 판결

The defendant's information shall be disclosed and notified through an information and communications network for three years. The defendant shall be ordered to place employment restrictions on children and juveniles at institutions related to children and juveniles for three years.

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

Reasons

Criminal facts

On August 18, 2018, at C Women's Toilets located in Eunpyeong-gu Seoul Metropolitan Government on August 23:41, 2018, the Defendant, with the mind of having the victim raped the victim D (the age of 12) and sees ba-a-the-job, "I am? I am? I am? I am? I am? I am the victim's chest by her hand and am on the part of the victim, so I am kn't kn't kn't kn't kn't kn't kn' with the victim's breast, am, and kn't kn't kn't kn's finger

The Defendant continued to set up the victim's hair, intending to attract the victim's hair, and intending to attract the victim's hair, and prevented the sound by cutting his finger in the inside of the victim's fingers, and by shouldering the victim's right side, the Defendant tried to suppress and engage in sexual intercourse with the victim's resistance. However, the Defendant committed an attempted murder on the wind that is discovered to the police, and caused an injury to the victim's right side, resulting in a hole in the number of days of treatment.

As a result, the defendant tried to rape the victim who is a child or juvenile, and tried to injure the victim.

Summary of Evidence

1. Partial statement of the defendant;

1. Records of statements made for damage;

1. A written statement of the victim;

1. Investigation report (verification of CCTV image data taken at the scene of the crime and at the time of escape of the suspect), investigation report (verification of a place where a cash payment machine has been installed where a suspect attempted to withdraw in cash), investigation report (verification of the result of execution of a warrant of seizure and verification), investigation report (verification of the result of execution of a warrant of seizure and verification), investigation report (Attachment of a letter of reply to execution of a warrant of seizure and verification), investigation report (Attachment of a letter of reply to execution of a warrant of seizure and verification), investigation report (Attachment of additional CCTV image confirmation and recording of a suspect), investigation report (Hearing of additional CCTV image of

1. Application of Acts and subordinate statutes to the scene where the victim is employed to make a report on investigation;

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

Articles 9, 7(6), and 7(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (Appointment of Imprisonment with prison labor)

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;

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

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. An employment restriction order;

Article 2 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Mar. 13, 2018); the main sentence of Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Mar. 13, 2018)

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A. As at the time of the instant case, the Defendant did not recognize that the victim was under the age of 19, there was no intention to rape a child or juvenile against the Defendant.

B. The injury inflicted on the victim of this case is merely a relatively minor figure that may occur while living a daily life, and thus cannot be deemed as an injury as referred to in the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.).

2. Determination

A. In light of the following circumstances that could have been known according to the evidence adopted and investigated by the instant court, whether the victim was deemed to be under the age of 19, the Defendant ought to be deemed to have sufficiently known that the victim was under the age of 19. This part of the Defendant’s assertion is rejected.

1) At the time of the instant case, the victim stated at an investigative agency that “I am am hy, I am hyna, I am hyna, I am hynas? I am hynas? I am hynas, and I am hynas hynas hynas. I am hynas 13 am hynas. I

According to these statements, the Defendant seems to have been aware of the fact that the victim was significantly more than himself/herself from the time when the victim was faced with.

2) Women’s toilets, which are the place of the instant crime, are located in children’s parks. At the entrance of the park, signs of children’s parks are installed, and they are installed with play facilities, such as a sluris, in front of women’s toilets. In addition, the Defendant entered the instant women’s toilets after examining inside the instant women’s toilets and confirming that adults are out of the toilets. In light of the characteristics of the instant crime place and the circumstances at the time of the Defendant’s crime, etc., it is deemed that the Defendant entered the women’s toilets with knowledge that those under the age of 19 may be inside the

3) The Defendant asserts that he could not grasp the age of the victim by drinking. However, the Defendant sought to put the victim in the partitions inside the toilets so as not to be exposed to the people at the time of the instant crime, and laid the victim’s hand in the entrance of the victim making it impossible for the victim to be able to find out. In addition, the Defendant escaped at a rapid speed immediately after the police was discovered, and entered the password of the account in the process of finding cash in the ATM device to get out of the taxi. In addition, the Defendant stated that “the victim was the first spirit of the Defendant at the investigative agency.” In light of the Defendant’s attitude, words, and words, etc. before and after the instant crime, it is difficult to view that the Defendant was in a state that the Defendant was able to grasp the age of the victim.

B. As the injury resulting from an act of rape, etc., which constitutes injury, is extremely minor and thus, need to be treated as it does not constitute injury to the crime of bodily injury resulting from rape, in a case where there is no obstacle to natural recovery and daily life. However, this is premised on the fact that there is no assault or intimidation to suppress the victim’s resistance, or that it is the same degree of injury that may normally occur in a daily life even if there is no assault or intimidation to suppress the victim’s resistance, or that the act of sexual intercourse is the same as that of an ordinary injury that may occur in the course of sexual intercourse pursuant to the agreement. Thus, if such an excess degree of injury occurred through such assault or intimidation, such injury constitutes injury (see, e.g., Supreme Court Decision 200

In light of the following circumstances revealed in accordance with the evidence adopted and examined by this court, the injured party’s wife appears to be an injury in violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.). This part of the Defendant’s assertion is rejected.

1) 피해자는 이 사건 범행을 당한 직후인 2018. 8. 19. 00:30경 수사기관에서 '소리 지르려하자 (피고인이) 입에 손을 넣고 말을 못하게 했다. 목 안에서 피가 나서 피하려 발버둥 쳤다. 사람들 들어온다고 안으로 들어가자고 했는데 안 들어간다고 버티다가 경찰이 왔다.'라는 내용의 진술서를 작성하였다. 또한 2018. 8. 22.경에는 E에 출석해 '피고인이 갑자기 입 안에다 손을 넣어가지고 말을 못하게 했다. 손을 목구멍까지 넣어가지고 목에서 피가 났다. 숨이 안 쉬어지니까 계속 발버둥 치던 중 피고인의 손을 깨물자 피고인이 자신의 머리를 잡고 볼을 물어 오른쪽 볼에 파랗게 멍이 들었다. 당시 통화 중이던 친구가 피고인이 여자화장실에 들어왔을 때부터 경찰에게 적발될 때까지를 녹음했는데 그 시간이 16분~18분 정도 된다.'라고 진술하였다. 이에 비추어 보면 피고인이 피해자에게 짧지 않은 시간 동안 매우 강한 유형력을 행사하였고 이로 인해 피해자가 상처를 입었음을 알 수 있다.

2) According to the victim’s mother’s statement, etc., immediately after this case’s immediately following the victim’s face, the victim was asked to her face and her head fingers in two quantities, and the neck appears to have been hard to thalphize. In the victim’s face, 1.5cm even before August 23, 2018, which was four days after the instant crime, 1.5cm x 1.5cm cm. Such circumstances cannot be deemed to have occurred during daily life or in the process of sexual contacts by agreement, etc. in light of its location and degree.

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for not less than three years from six months to fifteen years;

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

[Determination of Punishment] In the case of a result of bodily injury in a sex offense, the Type 3 (Indecent Act by Compulsion, etc. based on Relatives Relations) shall be at least 13 years old.

[Special Escopics] Reduction element: In cases where the result of an injury occurred but the basic crime is attempted, minor injury is minor.

Aggravations: Victims vulnerable to crimes;

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment of 3 years to 6 years

[The victim was under the age of 13 at the time of the crime of this case, but the defendant was not guilty of rape or bodily harm by a minor under the age of 13 as stipulated in Articles 8(1), 15, and 7(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, but was charged as a crime of bodily harm by rape against children and juveniles as stipulated in Articles 9 and 7(6) and (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse. Thus, the defendant refers to "the person who was under the age of 13" among "the person who was under the age of 13" and "the person who was under the age of 13" and "the person who

3. Determination of sentence;

The instant case is highly likely to be a crime in view of the method, place, circumstance, and content of the crime as the Defendant inflicted an injury on the victim, who is a child or juvenile, in the course of rape. Due to the Defendant’s act, the victim, who is an elementary school student under the age of 12, appears to have suffered a huge physical and mental pain. In addition, the Defendant committed such an offense in a female toilet in the children’s park. In addition, the Defendant committed such an offense in a place where many people, including children, should use it safely and freely, is highly likely to be criticized in that it causes fear to good citizens. Such circumstances are disadvantageous to the Defendant.

However, the Defendant is a primary offender, and the facts are recognized as a substitute, and the submission of a variety of rebuttals is divided into one another. The degree of injury suffered by the victim is not very serious, and the rape was committed even after the rape was committed. Such circumstances were considered as favorable to the Defendant.

In addition, the defendant's age, character and conduct, family relations, motive, means and result of the crime, and various sentencing conditions specified in the trial process of this case, such as circumstances after the crime, shall be determined as ordered.

Registration of Personal Information

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is subject to registration of personal information pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.

Judgment on the request for attachment order

1. Summary of request;

A person who has committed a sexual crime, as stated in its holding, is highly likely to recommit a sexual crime, taking into account the degree of judgment or separation of the person against whom the attachment order was requested, the background of the crime in this case, the environment of the person against whom the attachment order was requested, character and conduct, etc. Therefore, it is necessary to impose an attachment order of an electronic tracking device on

2. Determination

"Risk of recidivism of a sexual crime" under Article 5 (1) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter referred to as the "Act on the Attachment of Electronic Devices") means that the possibility of recidivism is insufficient solely with the possibility of recidivism, and it is highly probable that the person subject to an application to attach an electronic device may injure the legal peace by again committing a sexual crime 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 the application to attach an electronic device, the conduct before and after the crime, the motive, means, circumstances after the crime, and the situation after the crime, etc., and such determination shall be based on the time of the judgment (see, e.g., Supreme Court Decision 2010Do7410, 2010Do444, Dec. 9, 2010).

In light of the above legal principles, it is difficult to readily conclude that the evidence submitted by the prosecutor alone is highly probable to impair the legal peace by committing a sexual crime again in the future, taking into account the following circumstances revealed by the evidence adopted and examined by the court, the age, occupation, environment, and circumstances of the person subject to the request to attach an attachment order.

A. As a result of the evaluation of the PC-R on the selection of the mentally ill persons (PCL-R), the risk of recidivism by the person subject to the request for the attachment order was found to be less than three points. Moreover, in light of the degree of acceptance of rape, etc., the degree of adult awareness distorted by the person subject to the request for the attachment order does not seem to be very serious.

B. The evaluation of the degree of risk of a sex offender in Korea (K-SORAS) with regard to a person subject to the request for an attachment order, showed that the risk of a sex offender was at least 14 points, but it was relatively low (the evaluation criteria are 0 to 6 points, 7 to 12 points, and 13 to 29 points, i.e., e., 'low') within the scope, and prior to the crime of this case, there was no record of the crime, including the sex offense, against the person subject to the request for the attachment order, and thus, it cannot be deemed that the person subject to the request for the attachment order has a record of a sexual crime.

(c) If this judgment becomes final and conclusive, it would suffice for the person who requested the attachment order to have the person completed the sexual assault treatment program, the registration of personal information, and the disclosure and notification of personal information, along with a reasonable period of time, to have the person who requested the attachment order corrected sexual impulses and personality and behavior.

3. Conclusion

Thus, the request for the attachment order of this case is dismissed in accordance with Article 9(4)1 of the Electronic Device Attachment Act as there is no ground.

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