[2] Whether an act of a person with an electronic tracking device entering and leaving another person's living space or a space jointly used by another person without carrying a portable tracking device constitutes "a case where the utility of an electronic device is harmed by any other means" under Article 38 of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders (affirmative)

[2] A person who is attached with an electronic tracking device (hereinafter “electronic device”) under the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”) shall charge, carry, or manage the electronic device so that the function of the electronic device can be maintained normally during the period of attachment of the electronic device (Article 11 subparag. 1 of the Enforcement Decree of the Act on Probation and Electronic Monitoring, Etc. for Specific Criminal Offenders). Furthermore, in light of the purport of the Electronic Monitoring Act aimed at promoting sound rehabilitation through probation, etc. and taking additional measures to protect citizens from specific crimes by taking measures to attach the electronic device, taking into account the function and purpose of the portable tracking device that constitutes an electronic device and the portable tracking device to protect citizens from specific crimes, in cases where a person subject to attachment intends to enter or leave his/her own residential space or residential space with his/her family members, etc. where the person subject to attachment is equipped with a new electronic tracking device and jointly uses another person’s space, it constitutes a portable electronic tracking device without having access to the electronic device in violation of Article 38 of the Act.

1. The term “electronic tracking device” under the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”) refers to a series of mechanical devices that verify the location or detect the moving route using the principle of transmitting and tracking electromagnetic waves (Article 2 subparag. 4). The electronic device is carried by a person with an electronic device (hereinafter “person subject to attachment”) and is a device to confirm the location of the electronic device through the satellite position verification system and mobile communication network, which is a portable tracking device, a portable tracking device, a portable tracking device, a portable tracking device, installed in the residence of the person subject to attachment, and a portable tracking device to confirm the location of the person subject to attachment, and a portable tracking device installed in the body of the person subject to attachment (hereinafter “Enforcement Decree of the Act on the Probation, Electronic Monitoring, etc. of Specific Criminal Offenders”).

Meanwhile, Article 38 of the Electronic Monitoring Act punishs a person subject to attachment of an electronic device who arbitrarily separates or damages the electronic device from his/her body during the period of attachment, obstructs its propagation, alters the data received, or otherwise impairs its utility. Here, “act of harming its effectiveness” refers to an act that causes damage to the actual utility of the electronic device that enables the tracking of location by attaching the electronic device, and includes not only the act that directly undermines the function of the electronic device itself, but also the act that prevents the device from functioning normally, and even if the device is omitted, it is subject to punishment if it intentionally prevents the device from functioning normally (see Supreme Court Decision 2012Do5862, Aug. 17, 2012).

In addition, a person wearing an electronic device shall charge, carry, or manage the electronic device so that the function of the electronic device can be maintained normally during the period of attachment of the electronic device (Article 11 subparag. 1 of the Enforcement Decree of the Electronic Monitoring Act). Furthermore, in light of the purpose of the Electronic Monitoring Act to promote sound rehabilitation through probation, etc. and to protect citizens from specific crimes by taking additional measures to protect the person from recidivism after the completion of the term of punishment, and the function and purpose of a portable tracking device that constitutes an electronic device and a home-to-house supervisory device, the person wearing the electronic device must carry a portable tracking device in cases where the person wearing the electronic device intends to have access to a third person’s living space or a space for common use with his/her own independent residential space or family members, etc. where the person wearing the electronic device intends to leave a place where he/she is equipped with a home-to-house supervisory device or a space for common use by other persons. Therefore, in cases where the person wearing the electronic device fails to track electromagnetic waves by having access to the same place without carrying a portable tracking device in

2. According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, ① the Defendant was unable to check the Defendant’s location at seven times from May 26, 2013 to May 18:23, 2013, without having kept and carrying a portable tracking device in his/her house while living at a welfare center operated by the Korea Rehabilitation Agency from around 18:41 on the same day, and without carrying the portable tracking device inside his/her house, and making it difficult for the Defendant to check the Defendant’s location by getting out of the room (○○○, and a home-based supervisory device is installed in the room) or having access to another person’s living space, etc., and was unable to check the Defendant’s location by the same method as shown in the list of crimes in the first instance judgment by November 11, 2014; ② the location tracking control center received a escape warning from the scope of response to the attachment device caused by the Defendant’s act, and even if having repeatedly violated the Defendant’s obligation to keep the electronic tracking device, it must carry the portable device.

In light of the aforementioned facts in light of the legal principles as seen earlier, even if the Defendant had not carried the same scope of movement at the time of the above act, or had not gone out of the territory of the welfare center, and the period of escape from the scope of application of the attachment was short time, it is sufficient to view that the Defendant constitutes “any other act detrimental to the utility of the electronic device by any other means” as provided in Article 38 of the Electronic Monitoring Act, insofar as the Defendant had access to the tracking device without carrying the portable tracking device, even though the Defendant went out of his own independent residential space where he had the device installed, and had access to another person’s living space or joint use space with others, so long as he could not trace the electromagnetic waves

Based on its stated reasoning, the lower court’s maintaining the first instance judgment convicting of the instant facts charged is justifiable as it is in accordance with the foregoing legal doctrine. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the subject of punishment under the Electronic Monitoring

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)