[2] In a case where a disclosure order and notification order are requested against a child or juvenile who committed a sexual crime on November 17, 2008 and was found guilty on May 21, 2009 against the defendant, the case holding that the court below erred in the misapprehension of legal principles in holding that the defendant is subject to disclosure order and notification order under Article 7 of the Addenda of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012)

[2] In a case where a request for disclosure or notification order was made against a child or juvenile after having committed a sexual crime on November 17, 2008 and the conviction was made against the defendant on May 21, 2009, the case holding that the court below erred by misapprehending the legal principles as to the crime under Article 7 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, which was wholly amended by Act No. 8634, Aug. 3, 2007; and that there was no inspection order under the Act on the Protection of Juveniles from Sexual Abuse, which was enforced on February 4, 2008; thus, the order of disclosure and notification under Article 15 of the Addenda of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, which was wholly amended by Act No. 11556, Dec. 18, 2012; Article 7 and Article 5 of the Addenda of the Act on Special Cases Concerning the Protection of Children and Juveniles from Sexual Abuse, and Article 15 of the Addenda of the Act.

1. The “Special Act on the Punishment, etc. of Sexual Crimes” enacted and promulgated by Act No. 10258 on April 15, 2010 (hereinafter “Special Act on the Punishment, etc. of Sexual Crimes”) first introduced a system of ordering disclosure and notification of personal information, and subsequently, Article 2(2) of the Addenda to the Act on the Special Act on the Punishment, etc. of Sexual Crimes (amended by Act No. 10258) provided that even if a sexual crime subject to the registration of personal information was committed before April 16, 2011, the enforcement date of the said provision, the said Act allows a person whose conviction has not yet become final and conclusive to be convicted

Meanwhile, Article 7 of the Addenda of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter “Special Cases concerning the Punishment, etc. of Sexual Crimes”) (wholly amended by Act No. 1156, Dec. 18, 2012; hereinafter “Special Cases concerning the Punishment, etc.”) which was enforced June 19, 2013, provides that “Article 42 through 50” under Article 2(1) shall apply to a person whose judgment of conviction (excluding a fine) has become final and conclusive during the period from April 16, 2008 to April 15, 2011, and Article 7(2) of the Addenda of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter “Special Cases concerning the Punishment, etc. of Sexual Crimes”), and the court shall make a request for disclosure order and order within 0 years from the date of enforcement of the Act, with the provision of Article 2(1)3 and 4, Articles 3 through 10, and 15.

The purpose of this is to provide a retroactive disclosure order and notification order even to a person who was unable to issue an disclosure order or notification order by applying the Act on Special Cases of Sexual Violence (Act No. 10258) on April 16, 2008 to April 15, 201 when the conviction of a sexual crime was finally affirmed before April 16, 201, and such conviction became final and conclusive during three years from April 16, 2008 to April 15, 201.

However, the Act on the Special Cases of the Protection of Children and Juveniles against Sexual Abuse (Act No. 10258), which was amended by Act No. 9765, Jun. 9, 2009; the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 9765) enacted on January 1, 2010, limits the scope of application of the Act on the Protection of Children and Juveniles against Sexual Abuse to persons who committed sexual crimes subject to disclosure order and notification order, excluding persons who committed sexual crimes subject to disclosure order (Article 37(1)); and the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 10260, Apr. 15, 2010; Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “Act No. 10260”), which was amended by Act No. 10260, Jan. 1, 2011; and the following separate provisions of the Act on the Protection of Children and Juveniles against Sexual Abuse.

In other words, the Act on the Protection of Children and Juveniles against Sexual Abuse, which was amended by Act No. 10391 on July 23, 2010, newly established Article 3(2) and (3) of the Addenda of the Child Protection Act (Act No. 9765). As seen above, the Act was amended by Act No. 7801 on Dec. 29, 2005, and was enacted on June 30, 2006, and was completely amended by Act No. 8634 on Aug. 3, 2007, and was enacted on Feb. 4, 2008, to which the Act on the Protection of Children and Juveniles against Sexual Abuse was enacted on the request of a prosecutor for disclosure of the child and juvenile sexual crime subject to the Act No. 1500 on the Protection of Children against Sexual Abuse (hereinafter “Act No. 8634”), and was enacted on the request of the Minister of Gender Equality and Family for disclosure of the Act.

In light of the contents and structure of the relevant provisions and the history of the amendment of the law, it is reasonable to interpret that in the case of sexual crimes against a child or juvenile for which a conviction has already become final and conclusive, it may be subject to the conversion of disclosure order or retroactive notification order under Article 5 and Article 8 of the Addenda to the Act on the Protection of Children's Sex Offenses (Act No. 11572), but it is not subject to the retroactive disclosure order and notification order under Article 7 of Addenda to the Act on the Special Cases of Sexual Violence (Act No. 1

2. The instant crime was committed against a child or juvenile on November 17, 2008, and the conviction was finalized on May 21, 2009, but did not issue an order for perusal under the Juvenile Sex Protection Act (Act No. 8634), which was in force at that time. According to the aforementioned legal principles, it shall not be subject to an order for disclosure and notification under Article 7 of the Addenda to the Act on Special Cases Concerning the Prevention of Sexual Violence (Act No. 11556) and Articles 5 and 8 of the Addenda to the Act on Special Cases Concerning the Protection of Children's Sex (Act No. 11572).

Nevertheless, the lower court determined that the Defendant is subject to disclosure order and notification order under Article 7 of the Addenda to the Act on Special Cases concerning Sexual Violence (Act No. 11556). In so doing, the lower court erred by misapprehending the legal doctrine on disclosure order and notification order concerning sexual assault crimes against which the conviction has become final and conclusive, and the scope of application of Article 7 of the Addenda to the Act on Special Cases concerning Sexual Violence (Act No. 11556).

3. Therefore, without further proceeding to decide on the grounds of reappeal, the lower court’s order is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)