2018Gohap851 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.)

A

Amateur (prosecution) and Kim Sung-won (Trial)

Attorney Lee Jae-in

December 7, 2018

A defendant shall be punished by imprisonment for five years.

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

The defendant shall be ordered to place an employment restriction on children and juveniles-related institutions, etc. for three years.

Criminal facts

On April 19, 2018, at around 00:55 on April 19, 2018, the Defendant, at the Seocho-gu Seoul Seocho-gu Seoul Metropolitan Government, promised “E after drinking and hedging alcoholic beverages at D’, with a view to finding the Victim F (F, 52 years of age) and committing an indecent act.

At around 01:00 on the same day, the Defendant followed the victim to the H female toilet located in G, and intruded the said toilet, and attempted to forcibly commit an indecent act by force, such as putting the victim out of the victim's chest and elel, leaving the victim out to talk with the victim, leaving the victim her chest and elel, leaving the victim out of the victim her, leaving the victim her chest and her sel, leaving the victim her face her face 2 to 3 times at 2 to 3 times, leaving the victim her face her face her face, leaving the victim her head and her face to her side to her side with the change of her head. However, the Defendant attempted to commit an attempted indecent act by force on the part of the victim, such as cutting the victim's hair and inserting the victim's head, leaving the victim her sound continuously and making the victim her sound her escape, thereby leaving the victim in a way that the victim needs approximately two weeks treatment.

Accordingly, the defendant attempted to commit an indecent act against the victim by impairing a structure, and attempted to commit an indecent act against the victim, and inflicted an injury upon the victim.

Summary of Evidence

1. Partial statement of the defendant;

1. The police statement concerning F;

1. Scenese flag by capturing CCTV;

1. A written diagnosis of injury;

Application of Statutes

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

Articles 8(1), 15, and 3(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Articles 319(1) and 298 of the Criminal Act

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

1. Exemption from an order for disclosure and notification;

In full view of 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) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the fact that there is no record of criminal punishment prior to the instant crime, and it is difficult to readily conclude that the Defendant has a risk of recidivism or recidivism; personal information registration and order to complete a program against the Defendant can only be deemed to have an effect of preventing recidivism; and other circumstances such as the disadvantages and side effects likely to be suffered by the Defendant due to the disclosure order and notice order; and the Defendant’s age, occupation, family environment, social relationship, and motive, means and consequence of the instant crime, the disclosure and notice of

1. Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, 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)

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A. The injured party’s wife can be naturally cured without treatment. As such, the crime of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) is not applicable to the injury of the injured party. (B) Although the accused attempted to commit an indecent act with his/her own voice toward the injured party, the injured party’s intent to commit a new assault occurred and subsequently, led to the injury from that time on the part of the injured party. Therefore, in the course of engaging in indecent act by force, the injury did not result in the result of an indecent act by force, and thus, constitutes substantive concurrent crimes of attempted indecent act by force and the injury or injury by force.

C. Even if the injured party’s wife constituted a crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) and the commission of indecent act by compulsion was committed, legal mitigation ought to be made by deeming that such act constitutes an attempted crime of indecent act by compulsion.

D. At the time of the instant crime, the Defendant was drunk and was in a state of mental disability.

2. Determination

A. As to the assertion that it does not constitute injury

1) As the injury resulting from an indecent act by compulsion is extremely minor and thus there is no need for treatment, so long as there is no hindrance to natural recovery and daily life, the crime of injury resulting from coercion shall not be included in the injury of the crime of injury resulting from coercion. 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 as the injury normally likely to occur in his/her daily life or in physical contact with others according to an agreement. Thus, if an injury exceeding such degree is caused by such assault or intimidation, such injury constitutes injury (see Supreme Court Decision 2005Do1039, May 26, 2005).

2) Comprehensively taking account of the following circumstances revealed by the evidence adopted and examined by this court, it is reasonable to view the victim’s wife as an injury to the crime of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes. This part of the defendant’s assertion is not accepted. The victim was able to take the left face of the police with 6 to 7 times per week’s appearance at the police, and 2 to 3 times’s face and walked with drinking. Although there is no accurate memory, 5 to 5 minutes or more of the face were faced." After the victim was blick and blicked, the victim was able to take care of the victim’s body immediately after the victim was flick, and the victim was issued an injury to the right side of the victim. In addition, the victim was 10 days from the first 12th day of the report, and the victim was able to have been issued with the victim’s face-to-face examination report and the statement of the victim’s 2nd day of the exercise of evidence.

Therefore, it is difficult to view that the degree of injury suffered by the victim is extremely minor and, without need to treat, it falls under cases where natural therapy is naturally and there is no difficulty in daily life.

B. As to the assertion that an injury was not caused in the course of indecent act by compulsion

1) In the crime of an indecent act by force, an injury should be caused by an act closely related to the opportunity or time and place of indecent act by force. Meanwhile, the same includes not only cases where the result of an injury occurred from an indecent act itself, or violence used as a means of indecent act by force, but also cases where an injury occurred from an indecent act by force (see Supreme Court Decision 2007Do2935, Jul. 12, 2007).

2) Comprehensively taking account of the following circumstances revealed by the evidence adopted and examined by this court, the injury suffered by the victim is deemed to have been caused by the act of assault or indecent act by force used as a means of indecent act by force or the act of assault accompanied by indecent act by force. Considering that the Defendant committed an injury to the victim by an act by force other than the opportunity of indecent act by force, the Defendant’s attempt to commit an indecent act by force and the crime of indecent act by force cannot be viewed as a substantive concurrent crime

The Defendant entered a female toilet and stated, “the victim intentionally moved to the victim of the indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by the victim is practically identical or very close to the time and place of the commission of the Defendant’s attempted act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by the police.” (Evidence No. 54 pages of the evidence record), and the Defendant stated, “the victim made a speech that “the victim would be harming the victim’s resistance by indecent act by indecent act by indecent act by indecent act” (Evidence No. 147 pages of the evidence record). In light of these statements, the Defendant may be deemed as assaulting the victim to suppress the victim by indecent act by indecent act by indecent act by indecent act by force

C. As to the assertion that an attempted crime should be mitigated, Article 8(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes applies to cases where not only a person who commits a crime of intrusion by residence but also a person who commits an indecent act by compulsion by residence as well as a person who commits an attempted crime under Article 3(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes but also a person who commits an attempted crime by compulsion by residence where the victim suffers an injury due to such crime. The penal provision on Article 8(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes under Article 15 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes applies to cases where an attempted crime of intrusion by residence or an attempted crime is committed, namely, a person who commits a crime of indecent act by compulsion by residence or committed an attempted crime and thereby causes an injury to the victim (see Supreme Court Decision 2013Do7138, Aug.

Therefore, even if an indecent act by force was committed on the part of an attempted crime, so long as the victim inflicted an injury on the victim, the punishment cannot be reduced or exempted.

D. According to the evidence adopted and examined by the court as to the claim of mental retardation, it is difficult to view that the defendant was in a state of drinking alcohol at the time of the crime of this case, even though the defendant was in a state of drinking alcohol at the time of the crime of this case, in light of the background of the crime of this case and the defendant's attitude and words before and after the crime of this case, it is difficult to view that the defendant was in a state of lacking the ability to discern things or make decisions

1. Reasons for sentencing: Imprisonment with prison labor for not less than five years from 15 years;

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

[Determination of Punishment] Where the result of a bodily injury in a sex offense occurs, the age of 13 or older and the injury resulting from the bodily injury shall be reduced to 5 (Indecent act by force, such as intrusion upon residence, etc.)

[Special Mitigation] If the result of an injury occurred but the basic crime is attempted, no penalty shall be imposed.

[Determination of the recommended territory, Scope of Recommendation] Special Mitigation Zone, 2 years to 6 years to 8 years of imprisonment

[Scope of the revised sentencing] Five to eight years of imprisonment (the lowest limit of the range of sentence recommended by the sentencing guidelines is lower than the minimum limit of the statutory applicable sentencing guidelines).

3. In the case of a sentence of sentence, the Defendant entered a female toilet according to the victim for the purpose of committing an indecent act at night, and the nature of the crime is very bad in light of the method, place, circumstances, and contents of the crime. The Defendant’s act constitutes a violation of the peace in female toilets where many people should use freely and safely due to the Defendant’s act, and the victim seems to have suffered a huge physical and mental pain. This is disadvantageous to the Defendant.

However, the Defendant recognizes the facts of the instant case as a substitute, thereby going against the Defendant. In the meantime, the instant indecent act by compulsion was committed against the attempted crime, and the victim did not want the punishment of the Defendant by mutual consent with the victim. The Defendant is also the first offender with no record of the crime. This is also the circumstances favorable to the Defendant.

In addition, the punishment as ordered shall be determined by comprehensively taking into account the various circumstances that serve as the conditions for sentencing, such as the age, character and conduct, environment, motive, means and method of committing the crime, and the scope of recommended punishment according to the sentencing guidelines.

Registration of Personal Information

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is 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

The presiding judge and the deputy judge;

Regular Category of Judges

For judges the last place: