성폭력범죄의처벌등에관한특례법위반(업무상위력등에의한추행)
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 7,000,000.
The above fine shall not be paid by the defendant.
1. The summary of the grounds for appeal (one year of imprisonment, two years of suspended execution, 40 hours of lecture for the treatment of sexual assault, 5 years of employment restriction order) of the lower court is too unreasonable;
2. Ex officio determination
(a) Article 1(1) of the Criminal Act shall apply to cases where any punishment is significantly changed even if any Act is changed after the crime is changed, or where no penalty is changed;
The lower court applied Article 10(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 15792, Oct. 16, 2018; hereinafter the same day) to each of the instant crimes, which constitutes imprisonment with prison labor for not more than three years, or a fine not exceeding 15 million won.
However, Article 10(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 15792, Oct. 16, 2018) that provides for a statutory penalty of not more than two years of imprisonment or a fine not exceeding five million won, the statutory penalty should be applied more pursuant to Article 1(1) of the Criminal Act.
B. Article 59-3(1) and (2) of the Welfare of Disabled Persons Act (amended by Act No. 15904, Dec. 11, 2018; hereinafter “former Welfare of Disabled Persons Act”) which was amended on June 12, 2019; and enforced on June 12, 2019 (hereinafter “former Welfare of Disabled Persons Act”) provides that when a court issues a sentence of imprisonment or medical treatment and custody for a sex offense, it shall simultaneously issue an employment restriction order with a judgment on a sex offense case in which the operation of welfare facilities for disabled persons or the employment or actual labor of welfare facilities for disabled persons is prohibited for a certain period not exceeding 10 years; however, if the risk of recidivism is remarkably low, or if it is determined that there are other special circumstances
In addition, Article 2 of the Addenda to the same Act, the amended provisions of Article 59-3 above shall also apply to persons who have committed sex offenses before this Act enters into force and have not received final judgment.