2013Gohap12 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Quasi-rape, etc. [Name of recognised Crime: Title of Punishment, etc. of Sexual Crimes

violation of the Act on Special Cases Concerning the Protection of Persons with Disabilities (compreting Fraudulent Means, etc.)

2013. 24. 25. 25. 26 (Joint) An order to attach an electronic device

1. Gamb○ (36 years old, souther), and non-permanent;

Accommodation-si

Reference domicile Games

2. Lighting-○ (59 years old, remaining) and real estate assistant; and

In the case of residential accommodation, the wife population;

[Reference domicile-si]

3. ○○ (49 years old, south), and non-permanent.

Housing Sung-nam City

Reference domicile Manam-si

Kim-hee (Lawsuits of Prosecution) and Red Roster (Trial)

Law Firm Members (for the purpose of Defendant Park ○○)

[Defendant-Appellant]

Gyeong-hee Law Firm (For the purpose of Defendant Cho Jong-ok)

Attorney Kim Jong-hoon, and Lee Dong-hun

Attorney Lee Sung-soo (Law Firm Lee Sung-soo, Counsel for the defendant Lee Sung-soo)

June 13, 2013

1. The Defendant’s gambling ○ shall be punished by imprisonment for three years, by imprisonment for two years and six months, respectively.

2. Provided, That with respect to the defendant Cho ○, probation shall be ordered for the above defendant who has been suspended from the execution of the above punishment for three years from the date this judgment became final and conclusive, and probation shall be ordered for 120 hours community service and lecture for sexual assault treatment for 80 hours.

3. Ordering the completion of a sexual assault treatment program for 80 hours to the Defendant 1, 200 and 200.

4. All the claims for the attachment order of this case are dismissed.

Criminal facts

Defendant Park ○○ is a person living in Dong Dong-dong and Dong-dong as the victim’s assistance ○○ (at the time of this case’s birth on March 20, 1967, from 44 to 45 years of age). Defendant Cho ○ is a tenant living in the same building as the victim. Defendant Lee ○ is a tenant living in the same building as the victim. Defendant Lee ○ is a person who is a father of Do-○, the principal owner of the building where the victim lives.

The Defendants became aware of the fact that the victim’s awareness and thinking ability is limited due to the victim’s intellectual disability while living in the same building as the victim, and that the victim was unable to properly exercise his/her sexual self-determination.

1. Defendant 1’s gambling;

(a) The crime committed on January 201;

On January 201, 201, the Defendant: (a) sent the victim to the influence of the influence of the influence of the influence of the date, and (b) sent the victim to the influence of the influence of the influence of the influence of the time, and (c) had sexual intercourse one time with the victim who has a mental disorder by force with the victim to the hotel in the vicinity of his wife

(b) Crimes committed on March 2012;

On March 2012, the Defendant had sexual intercourse with the victim on one occasion at the same place as the above in the foregoing paragraph (A) at the time of the date not later than the date.

2. Defendant’s objection

(a) The crime committed during wintering on 2011;

On February 201, the Defendant 201, at the place where the head of the Sing-si, Gan-si, Gan-si, the head of the Sinan-si, Gan-si, the Defendant saw the victim as "the victim," and "the victim, who has a mental disorder due to force, was sexual intercourse once with the victim.

(b) Crimes committed on March 2012;

On March 2012, the Defendant, at the office of the Defendant, at the time of the establishment of the head of the Si/Mapo-si, the head of Si/Mapo-si, the head of Si/Mapo-si, the head of Si/Mapo-si, ordered the victims to engage in sexual intercourse once in the same manner as the above paragraph (a).

3. Defendant Lee ○○

(a) Crimes committed on April 2012;

On April 2012, 2012, the Defendant: around 14:00, the Defendant: (a) placed the victim on the Astrode Banb, which was owned by the Defendant, in turn, in the middle of 14:0, the Defendant: (b) placed the victim on the string of the seat population at the time of the so-called “a defect once”; and (c) placed the victim on the string of the string, and (d) had sexual intercourse with the victim who has a mental disorder by force.

(b) Crimes committed on May 23, 2012;

On May 23, 2012: From 30 to 20: around 30, the Defendant had sexual intercourse with the victim in the same manner as the above paragraph (a) at the store of door ○○, a store of the wife population in the Gandong-Eup, Gandong-si.

Summary of Evidence

1. Defendants’ respective legal statements (each statement to the effect that the Defendants had a sexual relation with the victim at each time and place of the Defendants’ holding)

1. Each legal statement of the witness ○○, and ○○○;

1. Part of each prosecutor's interrogation protocol against the Defendants

1. Statement by the prosecutor with respect to ○○;

1. Each police statement made to ○○;

1. Application of each investigation report, psychological evaluation report, and medical certificate (Evidence No. 13-16, 18, 28, 29, 30 of the evidence list)

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

Defendants: Article 6(5) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes

1. Aggravation for concurrent crimes;

Defendants: Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act [with respect to Defendant Park ○○, the punishment prescribed by the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Sexual Intercourse with Disabled Persons, etc.) around March 2012 with heavy criminal penalty; the punishment prescribed by the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes on the Punishment, etc. of Sexual Crimes on March 2012 with heavy criminal penalty; the punishment prescribed by the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes on the Punishment, etc. of Sexual Crimes on March 3, 2012 with heavy criminal penalty; and the punishment prescribed by the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes on April 2012 with heavy criminal penalty with respect to Defendant ○○]

1. Discretionary mitigation;

Defendants: Articles 53 and 55(1)3 of the Criminal Act (see, e.g., favorable circumstances in the grounds for sentencing)

1. Suspension of execution;

Defendant Cho○-○: Article 62(1) of the Criminal Act ( considered as favorable circumstances, etc. among the following reasons for sentencing)

1. Probation, community service order and order to attend a lecture: The main sentence of Article 16 (2), Article 16 (3) and (8) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 59 of the Act on Probation, etc.;

1. Order to complete programs;

Defendant Park ○-○ and Lee ○-○: Determination on the allegations between the Defendants and their defense counsels in Article 16(2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes

1. Summary of the assertion

The Defendants and defense counsel asserted that even though they had a sexual relationship with the victim at each time and at each place of the decision of the Defendants, they did not know that the victim had a mental disability at the time, and that they did not have sexual intercourse with the victim by force by force even if they had a sexual relationship with the victim.

2. Determination

A. First of all, the following facts can be acknowledged in full view of the evidence presented in the judgment as to whether the Defendants had a mental disorder with the victim at the time of having a sexual intercourse with the victim, and whether the Defendants were aware of it. (A) With respect to the victim's growth process, the victim's dynamic group was likely to have obstructed the development of intellectual ability after the victim her head gets out of the second floor. A high school school student her her son was raped with her her son, and then sent a few years of human trafficking from the her son's son. After coming out of the son's her son, the victim was unable to determine her surrounding situation, and there was lack ability to distinguish between the victim and her her son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son.

B) The ○○○○, the principal owner of a building in which the victim lives together, may also know that the victim’s face is one of the victim’s face with respect to the intellectual level of the victim, and at any time, the victim may know that he/she is the mother and child, and at any time in dialogue, he/she stated that he/she is the victim’s mother and child (the 422 pages of the investigation record).

다 ) 피해자는 이 사건에 관하여 경찰수사가 개시될 무렵인 2012. 6. 15. 경 서상훈신경정신과의원에서 지능검사 및 사회성숙도검사를 받았는데, 임상심리전문가는 위 검사결과에 관한 심리학적 평가보고서에서 피해자의 인지기능에 관하여는 ' 한국 웩슬러 성인 지능검사 ( K - WAIS ) 로 측정한 전체 지능지수는 69점 ( 언어성 지능 = 67, 동작성 지능 = 79 ) 로, Mild MR 수준에 해당하고 있으나, 질적인 수행을 고려할 때 실제 기능수준은 더 낮을 가능성이 추정됨 ', ' 매우 단순한 상황 이외에는 미묘한 단서들을 파악해서 상황이나 타인의 의도를 이해하고 파악하는 것은 어려울 것으로 추정되고, 상황 판단력이 많이 부족할 것으로 보이며, 그로 인해 독립적이고 자발적인 대처는 어려울 것으로 판단됨 ' 이라고 평가하고, 피해자의 사회성숙도에 관하여는 ' 피해자의 사회적 연령은 7세 2개월 ( SQ = 39. 83 ) 수준에 해당하고 있음 ', ' 중요한 정보의 교류나 의사표현 능력도 부족한 상태임, 사회적 능력도 교회 사모님이나 교인들과 어울린다고 보고되고 있지만 그냥 앉아서 얘기를 듣고 간단하게 의사표현을 하는 정도에 불과할 것으로 예상됨 ' 이라고 평가하고 있다 ( 수사기록 229쪽 ) .

D) On November 21, 2012, based on the above evaluation report, etc., a doctor’s awards and decorations, along with the diagnosis of a mental body (dock) with the diagnosis of the victim on November 21, 2012, stated that “In the case of the patient, the items for measuring simple knowledge is relatively high, but intelligence for evaluation and determination of the social situation was relatively low, and that in the case of the patient, intelligence for evaluation and determination of the social situation is a low intelligence corresponding to class 69 degrees intellectual disability 3, and there is a tendency to evaluate the victim at a somewhat higher level than its ability due to the characteristics of this prosecutor’s (in the investigation records, 231 pages).”

E) Defendant Park ○○ was a normal woman, since the victim was aware of the fact that he was a woman with her mother and child at the time of the instant case, it was possible to propose that the victim was guilty of sexual intercourse with the victim.

The statement was made to the effect that the victim was unable to reach the end (the 416th page of the investigation record). Defendant Cho○ stated that the victim was unaware of the victim’s intellectual level before hearing the statement that the victim was to undergo an examination for determination of intellectual disability in 2012, but the victim was in exchange with the victim (the 304th page of the investigation record), and Defendant ○○ stated that the victim was aware of the victim’s intelligence level of about 10 years at the first time, and that the victim was the mother and motherer (the 292,294 pages of the investigation record). In full view of the above recognized facts and the appearance and attitude of the victim appeared as witness at this court, it was considerably difficult to find that the victim’s mental disability was considerably insufficient than the victim’s mental disability at the time of the instant investigation record, and that the victim’s mental disability was considerably insufficient than the victim’s mental disability at that time.

B. Next, we examine whether the Defendants, at each time and place, have sexual intercourse with the victim with a mental disability as above by force.

1) In relation to a sexual crime, the term "power of force" refers to a force sufficient to suppress the victim's free will, and is not tangible or intangible, it is possible to use the social, economic, political status or authority of the offender as well as assault and intimidation. The issue of whether a person has sexual intercourse by force shall be determined by comprehensively taking into account all the circumstances, such as the content, degree, and age of the offender who has exercised force, the type of the victim's status or right, the relationship between the offender and the victim, the circumstances leading to such act, the form of specific act, and the circumstances at the time of the crime (see Supreme Court Decision 2007Do1013, Feb. 15, 2008). In addition, if the victim made a statement about the instant case, it is impossible for the victim to make a statement or make a statement that he did not have any other relation after his refusal to make a statement at the time of the police officer's first time after July 12, 2012.

B) At the time of the second statement made by the police on August 29, 2012, the victim had induced the above defendant to be frighten with the defendant's sex. The above defendant's sexual intercourse was demanded at the time of "one defect", and the above defendant's sexual intercourse was stated to the effect that he forced the defendant to fright his body and responded to the match because he met with the defendant's sexual relation with the defendant's ○○. As to the sexual relation with the defendant's sexual relation with the defendant's ○○, the above defendant was frighted, and was frighted at the house, on the ground that he was frighted by the above defendant's fright and was frighted at the house. The victim stated to the effect that the above defendant's sexual relation was frighted at the front of the house, and that he was frighted even without his refusal (64,65 pages of the investigation record).

C) On January 3, 2013, the victim stated that "at the time of the water quality investigation with Defendant Cho Jong-○, the sex relationship with the above Defendant is not good, but is just good, and that the above Defendant did not interfere with it, such as putting a sound to himself or herself, but it was difficult for the victim to put a sound on the side by her own, 'brut, 'brut', '(the above Defendant borrowed money and divided food into her own sex relationship) so that it was difficult for him to put a sound on the side, '(the investigation record 437 pages).

D) The victim, who had sexual intercourse with the Defendant at the time of the crime of this case, is no longer likely to have been aware of the fact that the victim had sexual intercourse with the Defendant at the time of the crime of this case, and the victim was no longer likely to have sexual intercourse with the Defendant at the time of the crime of this case. However, the victim was no longer likely to have sexual intercourse with the Defendant 2 at the time of the crime of this case, and the victim was no longer likely to have sexual intercourse with the Defendant 2 at the time of this case. The victim's sexual intercourse with the Defendant 2 at the time of this case's request for sexual intercourse with the Defendant 5, and the victim's sexual intercourse with the Defendant 2 at the time of this case's sexual intercourse with the Defendant 7th time of this case's sexual intercourse with the Defendant 4th time of this case's sexual intercourse with the Defendant, and the victim's sexual intercourse with the Defendant 2 at the time of this case's sexual intercourse with the Defendant 3rd time of this case's statement.

Therefore, all of the defendants and defense counsel's above arguments are rejected.

Grounds for sentencing

1. The scope of punishment by law;

Defendants: Imprisonment of 2 years and 6 months to 22 months; and

2. Scope of sentence by the sentencing criteria; and

A. As to the Defendants’ respective basic crimes and concurrent crimes, each of the following is applicable.

[Determination of Type] Sex Crime Group, General Criteria, Sex Offenses against Persons with Disabilities (at least 13 years of age), Type 4 (Rape)

[Special Egressives] Reductions: In the event of using deceptive schemes or force, other than assault and intimidation, the source of punishment is not subject to punishment (limited to Defendant Cho-○, ○○○)

[Scope of Recommendation and Punishment] Defendant Park ○: Imprisonment with prison labor for 4 years to 7 years (the area of mitigation), Defendant Cho ○○, Lee ○: Imprisonment for 2 years to 7 years (the area of mitigation, special adjustment)

Inasmuch as there are two or more mitigated persons, the lower limit of the scope of the recommended sentence shall be 1/2 mitigated)

(b) Criteria for handling multiple crimes;

Defendant Park ○: Imprisonment with prison labor for up to 4 years and up to 10 years and six months [7 years + (7 years + 1/2)] of imprisonment for two years and up to 10 years and six months [7 years + (7 years + 1/2)] of imprisonment for a period of up to 2 years and up to 10 years and six months]: Provided, That the lowest sentence recommended by the sentencing guidelines is lower than the applicable sentencing guidelines by law, so the sentence recommended by the sentencing guidelines is subject to the applicable sentencing guidelines by law (2 years and six months).

3. The sentence decision requires separate social interest and protection as the victims of the instant case are the socially weak who lack of judgment and communication capacity due to a mental disorder. The Defendants, who were the neighbors of the instant case, have committed sexual intercourse with the victims seeking to take advantage of the victim’s state, on several occasions. The nature of such crime is very poor. Considering the mental impulse and the state of mind where the victims and their families suffered, the Defendants may not be subject to strict punishment.

However, the defendants partially recognize and reflect their crimes, the victim did not want to be punished against the above defendants by agreement with the defendant's assistanceO and Lee ○○, the defendants did not have any record of punishment for sexual crimes, and the defendant's Park ○ does not have any criminal record other than imprisonment without prison labor for the violation of the Special Cases concerning the Settlement of Traffic Accidents Act around 1983. In addition, the defendant's assistanceO and Lee ○○ also did not have criminal records, considering the circumstances revealed in the arguments of this case, such as the background of the crime, the circumstances before and after the crime, the age of the defendants, character and conduct, family environment, the punishment against the defendants shall be determined. In the case of the defendant Park ○○○, it is determined that the lower limit of the sentencing range according to the sentencing guidelines (four years of imprisonment) is somewhat high, so the defendant's punishment for the defendant is set within the applicable sentencing range in law, and the above defendant's assistanceO○ shall be suspended only after the execution of the sentence was made to the victim.

Registration of Personal Information

Where a conviction is finalized against the Defendants, the Defendants are subject to registration of personal information under Article 32(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and they are obligated to submit personal information to the competent authority pursuant to Article 33 of the same Act.

With respect to the crime of this case, the exemption from disclosure and notification order is about whether the accused's registered personal information is subject to disclosure and notification order pursuant to Articles 37 (1) and 41 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.

In cases where it is deemed that there are special circumstances to prohibit disclosure of personal information as one of the grounds for exception to disclosure orders and notification orders under Articles 37(1) and 41(1) proviso of the same Act, the determination of whether the personal information constitutes “where it is deemed that there are circumstances to prevent disclosure of personal information,” should be made by comprehensively taking into account the Defendant’s age, occupation, risk of recidivism, etc. characteristics of the offender, such as the type, motive, process, result, seriousness of the crime, etc. of the crime, characteristics of the crime, such as disclosure order or notification order, degree of disadvantage and anticipated side effects of the Defendant’s injury due to the disclosure order or notification order, preventive effects of sexual crimes subject to registration which may be achieved therefrom, and effects of protection of victims from sexual crimes subject to registration (see, e.g., Supreme Court Decision 2011Do

In the instant case, even though the Defendants had sexual intercourse with the victim with a mental disability on two occasions, in view of the motive and background of the crime, the age and character of the Defendants, and the Defendants’ criminal acts against themselves, and the fact that there was no record of punishment for sexual crimes, etc., it is unnecessary to impose security measures such as disclosure and notification orders on the Defendants as it is difficult to readily conclude that the Defendants had a risk of repeating sexual crimes. On the other hand, the disadvantages and side effects of the Defendants would be reasonable. In full view of such overall circumstances, it is deemed that there is a special circumstance that the disclosure of the Defendants’ personal information should not be made, and thus, the disclosure and notification orders should not be imposed on the Defendants.

Part requesting attachment of location tracking device

1. Summary of the request for attachment order;

A person subject to an order to attach an electronic device has committed two or more sexual crimes against a person with a mental disability, and is likely to recommit a sexual crime in light of the background of the crime, the environment, character and conduct, etc.

2. Determination

The risk of recidivism of 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 recidivism is insufficient solely on the basis of the possibility of recidivism, and that there is a probable probability that the person subject to the attachment order authority would 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 the request for attachment order, the conduct prior to the relevant crime, the motive, means, the circumstances after the crime, the circumstances after the crime, and the outline of the crime, etc., and such determination shall be based on the time of the judgment (see Supreme Court Decision 2010Do7410, 2010Do444, Dec. 9, 2010, etc.).

In full view of the following circumstances found by the evidence adopted by this court and examined by this court: ① there is no criminal record of sexual assault against the person subject to the request for an attachment order; ② The degree of risk of recidivism by the Korean sex offender against the person subject to the request for an attachment order is 7 points each; ② the level of '(7 points each for the person subject to the request for the attachment order; 8 points each for the person subject to the request for the attachment order; 7 point and 12 points each); ③ The degree of risk of recidivism by the results of the assessment of the sex offender’s sexual crime is 'the first (7 point)' among those for the person subject to the request for the attachment order; ③ the degree of risk of recidivism by the person subject to the request for the attachment order; ③ the degree of risk of recidivism by the person subject to the request for the attachment order; ③ the degree of risk of recidivism by the person subject to the request for the attachment order; and ④ the motive and risk of recidivism by the person subject to the request for the attachment order at the time of the request for attachment order.

Therefore, since the request for the attachment order of this case is all groundless, it is all dismissed in accordance with Article 9(4)1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders.

Judges Kim Jong-chul

Judges Jeon Soo-tae

The number of judges;