성폭력범죄의처벌등에관한특례법위반(업무상위력등에의한추행)
The judgment of the court below is reversed.
Defendant shall be punished by a fine of five million won.
The above fine shall not be paid by the defendant.
Summary of Grounds for Appeal
The sentence of the lower court (a fine of five million won, an order to complete a sexual assault treatment program 40 hours) is too unhued and 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;
With respect to the instant crime, 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) that statutory penalty for the instant crime is imprisonment 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 Act on Welfare of Disabled Persons”) which was amended on June 12, 2019; and enforced on June 12, 2019 (hereinafter “former Act on Welfare of Disabled Persons”) provides that when a court issues a sentence of punishment or medical treatment and custody for sex offense, it shall simultaneously issue an employment restriction order to prohibit the operation of welfare facilities for disabled persons or the employment or the provision of actual labor to welfare facilities for disabled persons for a certain period not exceeding 10 years; however, the same shall apply to a sex offense case where the risk of recidivism is remarkably low, or where it is determined that there
In addition, Article 2 of the Addenda to the same Act provides that 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.
. As such,