Defendant

Defendant

The motive (prosecution) and Kim index (trial)

Attorney Kim Young-young (Korean)

Suwon District Court Decision 2019Gohap468 Decided May 24, 2019

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

The defendant shall be ordered to complete a sexual assault treatment program for 120 hours.

For each five years, an employment restriction shall be issued to the accused in institutions, etc. related to children and juveniles and welfare facilities for persons with disabilities.

1. Summary of grounds for appeal;

The sentence of the lower court (one year of imprisonment, 120 hours of orders to complete sexual assault treatment programs, and 5 years of employment restrictions, such as children and juveniles-related institutions) is too unreasonable.

2. Ex officio determination

Article 59-3(1) of the Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018; Act No. 15904; hereinafter “Act on Welfare of Persons with Disabilities”) uniformly restricted employment in welfare facilities for persons with disabilities for ten years from the date on which the execution of all or part of the punishment or medical treatment and custody is terminated, or the execution thereof is postponed or exempted. However, Article 59-3(1) of the Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Jun. 12, 2019; hereinafter “Act on Welfare of Persons with Disabilities”) provides for an order to restrict employment, etc. of welfare facilities for persons with disabilities with a fixed period of time (the period shall not exceed 10 years pursuant to Article 59-3(2) of the same Act; hereinafter “Act on Employment”). Article 59-3(1) of the Addenda provides for a final judgment prior to the enforcement of the Act.

As such, upon the application of this case after the issuance of the judgment of the court below under Article 59-3 of the amended Act on Welfare of Persons with Disabilities, the court shall examine and judge whether the defendant who committed a sex offense was sentenced to an employment restriction order and the period of employment restriction under the above Act. However, an employment restriction order is an incidental disposition that declares simultaneously with a conviction of a sex offense case, and is only reversed in its entirety, even if the judgment below did not err in the part

3. Conclusion

The judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, on the ground of ex officio reversal, and it is again decided as follows.

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are the same as the corresponding columns of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

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

Article 13 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

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. An employment restriction order;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 15352, Jan. 16, 2018); 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); Article 2 of the Addenda to the Act on Welfare of Persons with Disabilities (Act No. 15904, Dec. 11, 2018); the main sentence of Article 59-3 (1) of the Act on Welfare of Persons with Disabilities

The crime of this case is not a good quality that the defendant sent a video image that causes a sense of sexual humiliation and aversion to the victims; the defendant was punished several times for the same crime; the defendant committed the crime of this case during the period of repeated crime for the same kind of crime; the defendant agreed with the victims; the defendant recognized and reflected the crime; the defendant's age, character and behavior, environment, motive and circumstance leading to the crime of this case; and the circumstances after the crime after the crime, etc. shall be determined as the sentence as ordered by taking into account various circumstances, which form the sentencing conditions specified in the argument of this case, such as the defendant's age, character

Where a conviction becomes final and conclusive on the facts of the instant crime against the Defendant, the Defendant becomes 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 of the same Act.

Disclosure of Registered Information and Exemption from Notice

In full view of the Defendant’s age, occupation, risk of repeating a crime, motive for, method of committing a crime in this case, seriousness of the crime, the degree and expected side effects of the Defendant’s disadvantage due to an order of disclosure or notification, the preventive effect of a sexual crime subject to registration which may be achieved therefrom, and the effect of protecting the victim, etc., the order of disclosure or notification shall not be issued to the Defendant, given that there are special circumstances that may not disclose or notify personal information pursuant to Articles 47(1) and 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

Judges Song Woo (Presiding Judge)