성폭력범죄의처벌등에관한특례법위반(카메라등이용촬영)
The judgment of the court below is reversed.
Defendant shall be punished by a fine of eight million won.
The above fine shall not be paid by the defendant.
1. The sentence of the lower court (a fine of KRW 15 million, order to complete a sexual assault treatment program 80 hours, three years employment restriction order, confiscation) against the Defendant on the summary of the grounds for appeal is too unreasonable.
2. We examine ex officio prior to the judgment on the grounds for appeal by the defendant for ex officio judgment.
Article 59-3(1) of the Act on Welfare of Persons with Disabilities (Act No. 15904), effective June 12, 2019, provides that where the court declares a sentence of imprisonment or medical treatment and custody for a sex offense, the court shall make an order (hereinafter referred to as "employment restriction order") to operate welfare facilities for persons with disabilities or to prohibit them from providing employment or actual labor to welfare facilities for a certain period from the date such punishment or medical treatment and custody is completely or partially terminated, suspended or exempted (where a fine is sentenced, the date on which the punishment becomes final and conclusive). The proviso to Article 59-3(1) of the Act on Welfare of Persons with Disabilities (Act No. 15904) provides that the same shall not apply to cases where the risk of recidivism
In addition, Article 2 of the Addenda to Act on Welfare of Persons with Disabilities (Act No. 15904, Dec. 11, 2018) provides that “The Act on Welfare of Persons with Disabilities applies to a person who has committed a sex offense before the enforcement of the Act on Welfare of Persons with Disabilities and has not been finally determined.”
The crime of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes falls under a sex offense to which Article 59-3(1) of the Act on Welfare of Persons with Disabilities applies, and thus, this court shall make a decision on whether to issue an employment restriction order or to exempt the defendant from the employment restriction order pursuant to Article 59-3(1
The defendant's age, occupation, history of punishment, method of crime, circumstances before and after the crime, employment restriction order can be achieved as well as the degree of disadvantage that the defendant suffers.