(영문) 의정부지방법원 2017.11.29.선고 2017고합324 판결

The defendant shall order the completion of the sexual assault treatment program for 80 hours. The request for the attachment order of this case shall be dismissed.

Reasons

Criminal facts

1. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape by Relatives), violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent act by blood);

The Defendant died of his children around July 18, 2015, while living together with her children inside and outside the marith, in the residence located in the mariwon-gun, Kangwon-gun, the Republic of Korea, and her family members, and had his mind to meet his sexual desire against the victim ○○ (the age of 41) (the age of 1st, 200).

On July 22, 2015, the Defendant entered the room of the victim in the above residence at around 00: (a) exceeded the panty of the victim; (b) opened the victim’s body; (c) opened the victim’s body; (d) opened the victim’s body with sound; and (e) forced sexual intercourse after suppressing the victim’s resistance by a bending the victim’s face; and (d) attempted to have sexual intercourse with the victim’s sound, and attempted to have the victim’s face inserted the Defendant’s sexual organ into the part of the victim’s sound.

In addition, from July 2015 to April 12, 2017, the Defendant: (a) raped the victim of a relative relationship, such as the list of crimes in the annexed Table, on five occasions; (b) attempted rape over four occasions; (c) forced rape on six occasions; and (d) committed similar rape over five occasions.

2. Special intimidation.

On March 30, 2016, the Defendant: (a) had sexual intercourse with the victim as indicated in the list No. 7 of the crime list of paragraph (1) above; and (b) had the victim “any dangerous object after having sexual intercourse with the victim; (c) had been killed at outside; and (d) had the victim threatened the victim of any harm to the victim’s body, etc. by notifying the victim of the damage outside of the finish.

3. Violence;

On April 12, 2017, the Defendant: (a) committed similar rape to the victim as indicated in No. 19 of the crime sight table 19; and (b) flaps of the victim; and (c) flaps of the victim; and (d) flaps flaf, when the victim flafed the victim’s chest, flaf, and flafed the victim’s face at least three times.

Summary of Evidence

1. Defendant's legal statement;

1. Each prosecutor's protocol of examination of the accused;

1. Each police protocol on ○○○;

1. A report on internal investigation (including attachment of a certified copy or abstract of a resident registration record card, accompanied materials), internal investigation report (including attached materials related to the family relationship of the victim and her husband's death, including each attached material), internal investigation report (including each attached material related to the result of request for appraisal of a sexual assault emergency key), internal investigation report (including each attached material related to the result of request for appraisal of a dental key), internal investigation report (including each attached material related to the submission of a cell phone recording file of the victim head of the ○○

1. A copy of the medical treatment certificate;

Application of Statutes

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

○ Rape by Relatives: Article 5(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Articles 15 and 5(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

○ Indecent act by blood: Article 5(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

0 The point of each similar rape: Article 297-2 of the Criminal Code

○ Special Intimidations: Articles 284 and 283(1) of the Criminal Act (Appointment of Imprisonment)

○ Violence: Article 260(1) of the Criminal Act (Selection of Imprisonment)

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 punishment provided for in the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape with Relatives by Relatives) on March 30, 2016, which is the most severe judgment of punishment and the nature of the crime]

1. Order to complete programs;

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

1. Exemption from an order to disclose or notify registered information;

Article 47(1) and Article 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, 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 crime of this case was committed against a relative victim, and thus, disclosure or notification of personal information of the defendant is likely to be exposed to the victim's personal injury and secondary damage to the victim in the process of disclosure or notification of such information. The sexual crime of this case is not an offense against an unspecified woman, and all the circumstances, including the defendant's age, family environment, social relationship, criminal records, and the degree of risk of recidivism, benefits and preventive effects expected by the disclosure or notification order of this case, and disadvantages and side effects of the disclosure or notification order of this case, are considered to have the effect of preventing the recidivism of the defendant. Thus, there is no special circumstance to disclose or notify the defendant's personal information).

Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes in the Judgment which is a sex offense subject to the registration of personal information.

In a case where a conviction becomes final and conclusive with respect to a crime, violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (indecent act by blood), or similar rape, the defendant constitutes 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 the defendant shall submit personal information

1. Reasons for sentencing: Imprisonment with prison labor for a period from 7 years to 45 years;

2. Application of the sentencing criteria;

(a) Type 2 (Rape by Relatives) basic crime [the scope of recommending the sentencing criteria set out in the sentencing guidelines] basic crime [the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape by Relatives) on March 30, 2016] / [the types of decisions] general standards for rape (the person who is under 13 years of age or older)

Aggravations: pregnancy

[Decision of Recommendation] Type 2 (Rape by Relatives) Nos. 1 and 2 (A. 6 years to 9 years) in the aggravated area (a. 2 years of imprisonment) / [the other crimes of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape by Relatives)] / [the general standard of determining the types of crimes of rape (a. 13 years of age or older)]

【Decision of Recommendation】

Application of the standards for dealing with multiple crimes (not less than five years but not more than eight years) in basic areas

7 years of imprisonment (the lower limit of the basic crime is lower than the lower limit of the statutory applicable sentences, based on the statutory applicable sentences), from August 15 to August 15 (the upper limit of the basic crime + the year 9 years of the upper limit of the first and second concurrent crimes + the year 1/2 of the upper limit of the second and second concurrent crimes + the year 1/3 of the upper limit of the second concurrent crimes) 2)

(b) Relationship with the crimes for which the sentencing criteria are not set;

The crime of attempted rape by blood of each of the above crimes and each of the above crimes on which the sentencing criteria are set is set is a concurrent crime under the former part of Article 37 of the Criminal Act, and the crime of attempted rape by blood of each of the above crimes is not set in the sentencing criteria. Therefore, only the lower limit of the scope of the sentence is set in the sentencing criteria for each of

C. According to the sentencing guidelines set forth in the above majority crime guidelines: Imprisonment with prison labor for not less than 7 years and not less than 3 years: 7 years: although the defendant was sentenced to imprisonment for each of the crimes of this case at latest, the defendant's mistake is recognized, and the defendant was suffering from illness, such as the destruction of the defendant's life, transfer of the police, etc., and there are some extenuating circumstances, but sexual violence against the defendant. This was committed against the defendant's living together. This was very bad in nature as a crime of sexual violence of this case, since it was more serious for the victim's husband's death, it began to commit sexual violence of this case, and its frequency reaches a majority, and it is inevitable that the victim was pregnant and dead due to the sexual crime of this case, not to notify the victim of such damage, and not to agree with the victim, and even if it did not reach any specific agreement with the victim, it should be considered that the above circumstances were not recovered.

In determining the sentence, the punishment shall be determined as ordered in comprehensive consideration of all the factors of sentencing as shown in the instant case, such as the age, family relation, character and conduct, environment, circumstances after the crime, etc., of the defendant.

Judgment on the request for attachment order

1. The abstract of grounds for requesting an attachment order;

A person who is requested to attach an electronic device shall file a request for an attachment order with regard to the person subject to the request for the attachment order, because the person has committed a sexual crime two or more times and the recidivism of a sexual crime is likely to be committed.

2. Determination

A. “Risk of recommitting a sexual crime” under Article 5(1) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders means that the possibility of recommitting a sex crime is insufficient solely with the possibility of recommitting a crime, and that there is a considerable probability that the person subject to the request to attach an attachment order may injure the legal peace by committing a new sexual crime in the future. The existence of the risk of recommitting a sexual crime ought to be objectively determined by comprehensively assessing various circumstances, such as the occupation and environment of the person subject to the request to attach an attachment order, the conduct prior to the relevant crime, the motive, means, the circumstances after the crime, the circumstances after the crime, and the situation after the crime, etc., and such determination shall be based on the time of the judgment (see Supreme Court

19. Supreme Court Decision 2010Do7410, 2010Do444 Decided January 1, 19, etc.

B. Based on the above legal principles, the risk assessment level of a sex offender against the person subject to the request for the attachment order is examined as follows: ① The risk assessment level of a sex offender against the person subject to the request for the attachment order is as follows: (a) the total point of seven points in the middle section (in the case of 7 to 12 points out of the total point of 29 points, it falls under the middle level); (b) the total point of seven points in the middle section (PC-R) as a result of applying the selection scheme for mentally ill person (in the case of 25 points or more in the total point of 40 points, it falls under the higher level; and (c) the risk of a comprehensive recidivism is assessed as an intermediate level; and (c) the probability that the person subject to the request for the attachment order was subject to the request for the attachment order is difficult to view that the person subject to the request for the attachment order was sexual assault against many unspecified persons, regardless of a specific environment or personal relation; and (c) it is difficult to view that the person subject to the request for attachment order again was subject to a fine by force.

C. 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 the request is without merit.