강제추행
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for one year.
However, for a period of two years from the date this judgment becomes final and conclusive.
1. The gist of the grounds for appeal is that the lower court’s punishment (one year of imprisonment, two years of suspended execution, 80 hours of taking sexual assault treatment courses, and three years of employment restrictions, such as children and juveniles-related institutions, etc.) is too uneasible and unreasonable;
2. Article 59-3(1) and (2) of the Act on Welfare of Persons with Disabilities (hereinafter “Amended Act on Welfare of Persons with Disabilities”) amended by Act No. 15904, Dec. 11, 2018; and enforced on June 12, 2019 (hereinafter “the Act on Welfare of Persons with Disabilities”) provides that, where a court issues a sentence of imprisonment or medical treatment and custody due to sex offense, it shall simultaneously issue an employment restriction order to prevent persons with disabilities from operating welfare facilities or from providing employment or actual labor to persons with welfare facilities for a given period not exceeding ten years; however, the same shall apply to a sex offense case where the risk of recidivism is remarkably low, or where it is deemed that there are other special circumstances that need not restrict employment, an employment restriction order may not be imposed.
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, Article 59-3 of the amended Act on Welfare of Persons with Disabilities applies to this case after the judgment of the court below was rendered, the court should examine and judge whether the defendant committed a crime of indecent act by compulsion against sex crime prior to the enforcement of the above Act and the period of restriction on employment.
However, an employment restriction order is an incidental disposition that declared simultaneously with a conviction of a sex offense case, and it is inevitable to reverse all of the judgment below without errors in the judgment below's conviction. Thus, the judgment below cannot be maintained any longer.
3. The judgment of the court below is based on the above reasons for ex officio reversal. Thus, without examining the prosecutor's assertion of unfair sentencing, Article 364 (2) of the Criminal Procedure Act is applicable.