[2] The case affirming the judgment below dismissing the Defendant’s request for attachment order on the ground that it does not constitute “where a sexual crime was committed on at least two occasions” in a case where the Defendant committed rape or bodily injury by rape and again, and the attachment order was requested based on Article 5(1)3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders

(B) Article 5(1)3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”) provides that “When a prosecutor is allowed to file a request with a court to attach an electronic device, he/she shall be subject to the recognition of the recidivism of a sexual crime (including where he/she has been convicted of a final and conclusive judgment) on at least two occasions.” The former part of the provision is interpreted as “where a sexual crime has been committed on at least two occasions, including a criminal record that has been convicted of a final and conclusive judgment.” Therefore, even if a person requested to attach an electronic device has the past record of receiving a protective disposition under the Juvenile Act (hereinafter “juvenile protective disposition”), it is apparent that this does not constitute a case where the person requested to attach an electronic device has received a final and conclusive judgment of conviction, the record that a juvenile protective order was issued is not considered when determining whether the person requested to attach an electronic device has committed a sexual crime twice or more.

[Dissenting Opinion by Justice Dai-hee, Justice Yang Chang-soo, Justice Park Poe-dae, and Justice Kim Yong-deok] A sexual crime committed more than twice as provided by Article 5(1)3 of the Electronic Monitoring Act may include a sexual crime subject to juvenile protective disposition, and should be interpreted as falling under the above provision in cases where the juvenile protective disposition is acknowledged by taking into account other circumstances together with the above provisions. Such interpretation is reasonable in light of the language and text of the above provision and the purpose of the

[2] The case affirming the judgment below dismissing the Defendant’s request for attachment order on the ground that, in a case where: (a) the Defendant had a record of being subject to a protective order under the Juvenile Act due to sexual crimes; (b) again, committed rape and bodily harm; and (c) the Defendant filed a request for attachment order based on Article 5(1)3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, the Defendant’s request for attachment order does not constitute “where the Defendant committed two or more sexual crimes” under the above provision on the ground that the Defendant was subject to juvenile protective order in the past, in addition to

1. Defendant case

For the reasons indicated in its holding, the lower court did not err in violation of logical and empirical rules or in exceeding the bounds of the principle of free evaluation of evidence in finding the Defendant not guilty of the injury by robbery among the facts charged in the instant case. The relevant grounds of appeal are not legitimate grounds of appeal.

In addition, the prosecutor filed an appeal against the guilty portion of the judgment of the court below, but the appellate brief does not state the grounds for appeal and does not state any matters concerning the appellate brief.

2. As to the case of the request for attachment order

Under the principle of no crime without the law, penal provisions shall be strictly interpreted and applied in accordance with the language and text, and they shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. This is also the same in the interpretation of the requirements for the attachment order of specific criminal offenders.

Article 5(1)3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”) provides that “When a prosecutor has committed a sexual crime on at least two occasions (including a case where a final judgment of conviction has been rendered)” as one of the cases in which a prosecutor is entitled to file a request with a court to attach an electronic device. This provision is interpreted to mean “where a sexual crime has been committed on at least two occasions, including a criminal record, for which a final and conclusive judgment of conviction has been rendered.” Therefore, even if a person subject to a request to attach an electronic device has the record of having received a protective disposition under the Juvenile Act (hereinafter “juvenile protective disposition”), it is apparent that it does not constitute a case where the person subject to the request to attach an electronic device has received a final and conclusive judgment of conviction, the record of the juvenile’s protective disposition should not be considered in determining whether the person subject to the request to attach an electronic device has committed a

In the same purport, the court below is just to dismiss the prosecutor's request to attach an attachment order on the ground that the reason that the person subject to the request to attach an attachment order was subject to juvenile protective disposition for the past not only once a sexual crime, which is the criminal facts of the defendant case, but also twice a sexual crime, does not constitute the case where the sexual crime under Article 5 (1) 3 of the Electronic Monitoring Act was committed at least twice. It is not erroneous in the misapprehension of legal principles

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench, except for a dissenting opinion by Justice Ahn Dai-hee, Justice Yang Chang-soo, Justice Park Poe-dae, and Justice Kim Yong-deok with respect to a case claiming an attachment order. There is a concurrence with the Majority Opinion by Justice Jeon Soo-ahn, Justice Shin Young-chul, Justice Lee In-bok, Justice Lee In-bok, Justice Lee Sang

4. Dissenting Opinion by Justice Ahn Dai-hee, Justice Yang Chang-soo, Justice Park Poe-dae, and Justice Kim Yong-deok

A. In relation to Article 5(1)3 of the Electronic Monitoring Act (hereinafter “instant provision”), the Majority Opinion construed that the record of juvenile protective disposition by committing sexual assault on at least two occasions (including where a final judgment of conviction was rendered) does not constitute the record of juvenile protective disposition by committing sexual assault. However, for the following reasons, it is reasonable to interpret “sexual assault crime” as included a sex offense subject to juvenile protective disposition by committing sexual assault under the instant provision. Therefore, we cannot agree with the Majority Opinion.

(1) First, the language and text of the instant provision does not limit sexual crimes committed on more than two occasions, which serve as the basis for the determination of dampness, to those committed against which a final judgment of conviction was rendered.

The instant provision provides that “where a sexual crime has been committed on at least two occasions (including a case where the final judgment has been rendered) and the recidivism has been recognized” as the grounds for filing a request for an attachment order of an electronic device, the instant provision takes the form of adding “(including a case where a final judgment has been made for a sexual crime)” to “where a sexual crime has been committed on at least two occasions.”

The expression “criminality” used in the instant provision is used in various legal provisions, including the Constitution, and is used only to indicate the substantive aspect of the act “where the act was committed” without any exception, and is not used as a procedural concept, i.e., where a judgment of conviction became final and conclusive due to the crime. Rather, when it is necessary to limit the case where a certain procedure has been conducted, such as where a final and conclusive judgment of conviction was rendered in accordance with the law, then the term “criminal” further clearly defined the relevant procedure in the expression “criminal,” and the meaning of “criminal” is clearly defined in the substantive aspect.

For instance, Article 12(3) proviso of the Constitution of the Republic of Korea provides that “When a person who commits a crime corresponding to a punishment for a maximum term of three years or more might escape or destroy evidence,” Article 301 of the Criminal Act provides that “When a person who commits a crime under Articles 297 through 300, causes the injury or injury of another person,” Article 4(1)1 of the Juvenile Act provides that “juvenile who commits a crime” and Article 41(1)2 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, “a person who commits a sexual crime subject to registration but is not punished pursuant to Article 10(1) of the Criminal Act, and who is deemed likely to recommit a sexual crime subject to registration” means a crime committed.

In addition, Article 266(1)4 of the Public Official Election Act provides that "a person who has been sentenced to imprisonment for committing a crime", "a person who has been sentenced to imprisonment for a crime and for whom ten years have not passed since the execution of all or part of the sentence or medical treatment and custody was terminated, suspended or exempted", and "a person who has been detained upon the execution of a warrant for detention for committing another crime during the execution of an attachment order" under Article 13(4)1 of the Electronic Monitoring Act, and "a person who has committed another crime during the execution of an attachment order, and was sentenced to imprisonment without prison labor or heavier punishment for committing a crime" under Article 266(1)2 of the same Act and Article 3 of the Addenda of the Public Official Election Act (Act No. 9654, May 8, 2009), "a person who is under execution of a sentence or medical treatment and custody at the time of the enforcement of this Act by committing a specific crime" shall also be subject to restrictions in the form of a "criminal act."

Therefore, the concept of “where a sexual crime was committed on at least two occasions” under the instant provision is deemed not necessary to be different from the Constitution or other laws, and the language and text should be deemed as “where a sexual crime was committed on at least two occasions.”

Furthermore, the provision of this case provides that "a person who commits a crime shall be subject to the final judgment of conviction" within the following overall control, but does not use the expression that it does not include only the case where the final judgment of conviction has been obtained or the case where the final judgment of conviction has been obtained. The provision of this case is newly introduced with the amendment of the Electronic Device Attachment Act by Act No. 10257 on April 15, 2010. As the case where the request for attachment order is an incidental procedure to a sexual crime case, the term "sexual crime committed two or more times" such as the provision of this case prior to the amendment includes only a sexual crime which is the relevant defendant's case, and is not excluded from the act of sexual crime, and it is evident that the provision of this case does not include any exception to the provision of this case prior to the amendment of the former Act, and thus, it does not include any provision that only the case where the former conviction was final and conclusive, as well as the provision of this case prior to the amendment of the former Act.

Therefore, according to the language and text of the provision of this case and the amendment process, if a sexual crime is committed more than twice as prescribed in the provision of this case, it may include a criminal record or record of committing a sexual crime, and it shall be deemed that a juvenile protective disposition, other than a final conviction, may include a juvenile protective disposition.

(2) Next, in light of the purpose of the Electronic Monitoring Act and the purport of the instant provision, it is reasonable to interpret that the “sexual crime”, which is the basis for judgment on recidivism, includes sexual crime subject to juvenile protective disposition.

The purpose of the Electronic Monitoring Act is to prevent recidivism of sexual offenders, to re-socialize them through their personality and behavior correction, and to protect the people from sexual crimes (Article 1). Accordingly, Article 5(1) of the Electronic Monitoring Act provides for each of the following grounds for allowing various types of sexual offenders at risk of recidivism to file a request to attach an electronic device. A person who has been sentenced to imprisonment due to a sexual crime commits a sexual crime (Article 1) within 10 years after the execution of the sentence is completed or exempted (Article 2); a person who once again commits a sexual crime (Article 4); and a person who has the record of installing an electronic device under this Act for a sexual crime (Article 4); and a person who is under 16 years of age to file a request for an objective fact (Article 4) is to provide that the same applies to a sexual crime more than twice and the same applies to a sex offender.

Generally, damp walls refer to any brusity and tendency of crime, and they refer to the nature that forms the nature of the act (see Supreme Court Decision 2004Do6176, May 11, 2006). Thus, even if there are no criminal records identical to the same crime, it is interpreted that damp walls may be recognized by taking into account various circumstances, such as the defendant's age, character, occupation, environment, frequency of the crime, motive, means, method, place, etc. (see Supreme Court Decisions 86Do778, Jun. 10, 1986; 2006Do2860, Sept. 8, 2006). However, even if the criminal records or past records of the same crime are important judgment materials, and it is difficult to recognize the habit of the same crime only once, and it is not easy to consider that the crime was committed at least twice or more as a requirement to recognize the habit of a sexual crime.

Therefore, the case where a sexual crime was committed two or more times is merely a basic circumstance to recognize the habition, and thus, it does not necessarily constitute the provisions of this case. Furthermore, the circumstance that a sexual crime was committed two or more times together with other circumstances necessary to determine the habition shall be deemed to fall under the provisions of this case only if the habition is recognized. In other words, the circumstance that the sexual crime was committed has meaning as a basic circumstance to recognize the habition, which is the nature of the offender, like other materials for recognizing the habition. It cannot be viewed to the purport that it would be used as a material to recognize the habition only in a case where the sexual crime was committed with special disadvantage for the reason that the judgment of conviction was rendered due to the previous sexual crime, or where the judgment of conviction was rendered due

In the meantime, the Supreme Court has interpreted that there is no restriction on materials to recognize habitual or dampness, and interpreted that a crime subject to juvenile protective disposition may also be considered as materials to recognize habitual or dampness (see, e.g., Supreme Court en banc Decision 73Do1255, Jul. 24, 1973; Supreme Court Decision 90Do887, Jun. 26, 1990). This appears to have taken into account that the act is not an act’s nature, but an act’s character, rather than an act’s nature. In light of the above, there is no reason to exclude a sexual crime subject to juvenile protective disposition as well as an act of sexual crime committed on more than two occasions, even if a sexual crime was subject to protective disposition, the court has repeatedly excluded from attachment order on more than two occasions due to basic grounds to acknowledge the wall of a sexual crime, while it is contrary to the logic or logic of the previous Juvenile Protection Order Act that it can be used as materials to recognize a sexual crime from an act of sexual crime.

Ultimately, in order to recognize the recidivism of sexual crimes, additional requirements presented by the majority opinion that require a final and conclusive judgment of conviction for the past sexual crimes are irrelevant to the essential elements of the provision of this case, which is the recidivism of sexual crimes, and rather, if the requirement is required to meet the requirements, it is likely that the nature of the security disposition of the attachment order, which is called re-socialization through the prevention of recidivism and the correction of character and behavior, will not meet the legislative purpose of the Electronic Device Attachment Act, which aims to protect the people from sexual crimes, and thus, it is unreasonable to deem that there is a concern

(3) In conclusion, a sexual crime subject to juvenile protective disposition may be included in two or more sexual crimes as stipulated in the instant provision, and a sexual crime shall be interpreted to fall under the instant provision in cases where the recidivism of a sexual crime is recognized in full together with other circumstances. Such interpretation is reasonable in light of the language of the instant provision and the purpose of the Electronic Monitoring Act and the purport of the instant provision.

B. According to the judgment below and the records of this case, in the government branch of the Seoul District Court on February 4, 1999, the person who requested an attachment order was sentenced to imprisonment for a maximum of two years and one year and six months on a short term, and was sent from Seoul High Court to the Juvenile Department of the Seoul Family Court on April 22, 199, and was subject to juvenile protective disposition. The above rape injury constitutes a type of “sexual crime” under the provision of this case, and the court below should have deliberated and judged whether the person who requested an attachment order was subject to juvenile protective disposition more than twice including the above rape injury, and further, should have deliberated and determined whether the person who requested the attachment order was guilty of sexual crime.

Nevertheless, on the ground that sexual crimes subject to juvenile protective disposition are not included in “sexual crimes” under the provisions of this case, the lower court maintained the first instance court, which immediately dismissed the request for attachment order against the person who requested an attachment order. Therefore, the lower court erred by misapprehending the legal doctrine on the provisions of this case, and failing to exhaust all necessary deliberations, and thus, it is reasonable to reverse the same to the lower court for further proceedings consistent with this Opinion.

5. Opinion concurring with the Majority Opinion by Justice Jeon Soo-ahn, Justice Shin Young-chul, Justice Lee In-bok, Justice Lee Sang-hoon, and Justice

A. Article 12(1) of the Constitution provides that “All citizens shall enjoy personal liberty. No person shall be arrested, detained, seized, searched, or examined except as provided by Act, and punished, security, or forced labor shall not be imposed without due process, except as provided by Act.” The electronic monitoring system under the Electronic Monitoring Act is a kind of security measure aimed at protecting the people from sexual crimes (see Supreme Court Decision 2011Do5813, 2011Do99, Jul. 28, 201). As such, the provision providing for the requirements for requesting an attachment order of an electronic device ought to be strictly construed and applied in a manner that minimizes the infringement of fundamental rights, as far as possible, to the extent possible to realize the spirit of the Constitution, and should not be analogically interpreted or expanded to the disadvantage of the person who requested the attachment order.

Article 5(1)3 of the Electronic Monitoring Act provides that “A person who has committed a sexual crime on at least two occasions (including a case where he/she has received a final judgment on conviction)” and “when his/her recidivism is recognized” can file a request for an attachment order of an electronic device only if all the requirements are met. Here, “a person who has committed a sexual crime on at least two occasions (including a case where he/she has received a final judgment on conviction)” refers to a case where a person who has filed an attachment order does not commit a sexual crime on at least two occasions in the criminal facts of the relevant accused case and a sexual crime recognized in the judgment of conviction before the crime of the relevant accused case becomes more than twice, it shall be interpreted that the crime of the relevant accused case and the same constitutes the case where the person who has received a juvenile protective disposition, etc., and thus, interpretation that falls under the above provision shall not be permissible because it is an analogical interpretation or expanded interpretation unfavorable

The Dissenting Opinion argues that the above provision is an essential element of an attachment order of a sexual crime, and that the previous conviction or the previous record of a sexual crime is only one of the circumstances for the recognition of the damp wall, so it does not need to be interpreted as limited to the previous conviction for which the final conviction was rendered. However, as long as the sexual crime committed more than twice is essential for the recognition of such damp wall, the scope of the above provision needs to be strictly restricted and interpreted.

B. As above, the foregoing interpretation is supported by the process of the amendment.

In other words, Article 5(1)3 of the former Electronic Monitoring Act and Article 5(1)3 of the former Act on the Electronic Monitoring of Specific Sexual Offenders (amended by Act No. 9654, May 8, 2009; hereinafter “former Electronic Monitoring Act”) provide that “where a sexual crime is committed on two or more occasions, and the habit is recognized” as the requirement for requesting an order to attach the electronic device, the Supreme Court has interpreted that “where a sexual crime is committed on two or more occasions” under Article 5 subparag. 2 of the former Social Protection Act, which provides for the requirements for protective custody similar to those for requesting an order to attach the electronic device, it refers to cases where the crime is not included in the preceding and the final judgment, and it refers to cases where a sexual crime cannot be included in the preceding and the preceding criminal facts, including the case where a sexual crime is committed on five or more occasions, and thus, it refers to cases where a sexual crime is not included in the final judgment.”

At the time when the above revised Act was promulgated on April 15, 2010 and came into force before the enforcement thereof, the Supreme Court held that the crime of “not less than twice” under Article 5(1)3 of the former Electronic Monitoring Act includes cases where a final judgment of conviction was rendered (see, e.g., Supreme Court Decision 2010Do1374, 2010Do2, Apr. 29, 2010). However, this also limited to a final judgment of conviction for which res judicata is recognized, but did not regard that all the records, such as juvenile protective disposition, are included.

Ultimately, even in light of the above developments of the amendment, where a sexual crime was committed at least twice, only the final judgment of conviction is included, and the record of juvenile protective disposition is interpreted as not including the record thereof.

C. Article 1 of the Juvenile Act provides that “The purpose of this Act is to assist juveniles in their sound growth by taking necessary measures, such as protective dispositions, etc. for environmental adjustment and correction of character of juveniles having anti-social character, and by taking special measures concerning criminal punishment.” Article 32(6) of the same Act provides that “a protective disposition for juveniles shall not affect the future status of the relevant juveniles.” Thus, in interpreting Article 5(1)3 of the Electronic Monitoring Act, such purport should be sufficiently taken into account in interpreting Article 5(1)3 of the Electronic Monitoring Act. This provision should include the fact that a person subject to an application for an attachment order has been issued a protective disposition for juveniles due to sexual crimes in the past, and, as such, deeming that a person subject to an application for an attachment order falls under the requirements for requesting an attachment order for electronic devices at least twice (including cases where a final judgment on a crime has been rendered)” to be included in the crime of “sexual crimes committed more than twice

In addition, the juvenile protective disposition is a disposition that is taken through a substantive trial and determination by the Family Court or the Juvenile Department of the District Court. However, unlike the criminal procedure, the court takes ex officio as a guardian for the juvenile, does not involve the prosecutor, and goes through the procedures of the trial of the juvenile protective disposition which is treated as the object of the trial rather than the party of the trial, and thus, the examination of evidence is not a structure that focuses on the discovery of substantial truth (see Supreme Court Order 82Mo36, Oct. 15, 1982). In addition, where the juvenile protective disposition was committed, unlike the criminal procedure, the juvenile protective disposition may be issued even in a case where the requirements for prosecution such as an offense subject to victim’s complaint, or grounds for reduction or exemption of punishment are lack, or where the fact that the juvenile protective disposition was issued in the past is proved by the strict criminal procedure, it is difficult to view the fact that the respondent has been issued a protective disposition in the past as the same as the case where the conviction has been confirmed by the criminal procedure.

D. The trial procedure of a case claiming an attachment order is an incidental procedure in which a public prosecution is instituted on the premise of a sexual crime case (see Supreme Court Decision 2010Do1626, 2010Do33, Apr. 29, 2010). In a case where a formal judgment of acquittal or dismissal of prosecution is rendered without substantive deliberation and determination as to the crime in a sexual crime case, it is not allowed to conduct a substantive examination and determination as to the same crime which is the cause of the request separately in the case claiming an attachment order (see Supreme Court Decision 2009Do7282, 209Do21, Oct. 29, 2009). However, a juvenile protective order is not only a final judgment of conviction, but also an incidental procedure in which res judicata effect is not recognized (see Supreme Court Decision 85Do21, May 28, 1985, etc.). Thus, in order to transfer the juvenile protective order to the juvenile department subject to prosecution without prosecution, it may constitute an attachment order of the Juvenile Act.

In addition, the same problem arises in the case where a person who requested to attach an attachment order was prosecuted for committing a sexual crime in the past and received a judgment of dismissal of prosecution (decision of dismissal) or a judgment of acquittal without a final judgment of conviction, or where a disposition of suspension of indictment is issued after he/she was investigated for such suspicion, etc.

E. In light of the legislative purpose of the Act on the Attachment of Electronic Devices to promote re-socialization of sexual offenders, etc. through the prevention of recidivism and character and behavior correction, and protect people from sexual crimes, etc., the purport of the Dissenting Opinion is to include the juvenile protective disposition record of a person subject to a request for attachment order in the requirement. However, what past history constitutes the requirement for attachment order of an electronic device shall be clearly prescribed by the Act, and the interpretation of the provision that has been mitigated beyond

6. Opinion concurring with the Dissenting Opinion by Justice Park Poe-dae and Justice Kim Yong-deok

A. As pointed out in the concurring opinion with the Majority, even if considering the unique nature of juvenile protective disposition, it does not change the interpretation that sexual crimes, which are the basis for judgment on recidivism, include sexual crimes subject to juvenile protective disposition, under the instant provision.

Basically, juvenile protection cases under Article 4(1)1 of the Juvenile Act are subject to “juvenile who committed a crime.” The court may render a decision on juvenile protection only when it recognizes a juvenile’s criminal act as a result of a certain investigation and examination. Although juvenile protection cases regarding sexual crimes are initiated by the prosecution instead of prosecution, it is often possible for the court to forward the case to the juvenile department in consideration of the characteristics of the juvenile even though the facts of the crime are acknowledged as a result of the trial by the court, and also falls under the case where the case is often forwarded at the appellate court after the judgment of the first instance is rendered. The judge of the Juvenile Department does not issue a decision on commencement or non-disposition when the crime is not recognized, and the appeal and re-appeal against juvenile protective disposition are allowed. Thus, even if juvenile protective disposition is not a final judgment but res judicata effect, if the juvenile protective disposition becomes final and conclusive, it shall be deemed that it has undergone a substantive trial and determination on the facts of the crime, and there is no reason to deny the procedural legality accordingly.

The assumption that a juvenile protective order may be issued, even though there is no actual crime, is based on extremely exceptional circumstances. As such, it cannot be said that such special circumstance concerns side effects of the juvenile protective order, and thus, it is appropriate to exclude the force of the juvenile protective order from maternity. If there are such circumstances, the juvenile protective order may have an opportunity to impeachment the juvenile protective order in the process of deliberation on the case of request for attachment order. Therefore, as materials to recognize a sexual crime committed in the past, it is deemed that there is insufficient reason to treat the case where the juvenile protective order was issued and the juvenile protective order was

In addition, there is a possibility that juvenile protective disposition may be issued, unlike the criminal procedure, in a case where there is a lack of the requirements for indictment, such as filing of a complaint in an offense subject to victim’s complaint, or a ground for the exclusion of punishment, unlike the criminal procedure. However, the above grounds may be appropriately reflected, and thus, in a case where the above grounds are disputed with respect to a sexual crime against which juvenile protective order was issued, if the above grounds are disputed, it shall be examined and determined by the principle of free evaluation of evidence under the Criminal Procedure Act as to whether the facts of sexual crime falling under the category of “sexual crime committed more than twice” under the provision of this case can be recognized or whether the juvenile protective disposition is sufficient to take the materials to prove such crimes as evidence. In order to recognize a recidivism, as long as the detailed deliberation of the grounds therefor and related materials are necessary for the crime committed more than twice, it shall not be deemed an unfair procedure even if

Meanwhile, Article 32(6) of the Juvenile Act provides that "a juvenile protective disposition shall not affect the future of the juvenile." However, reflecting the record of juvenile protective disposition as basic data for juvenile protective disposition in this case does not go against the above provision, since it is not a sexual crime itself nor a juvenile protective disposition. In other words, considering the record of juvenile protective disposition, it is meaningful as evidence to prove that the juvenile's act was committed in accordance with the procedure corresponding to the judgment, and the record of juvenile protective disposition does not constitute an aggravated element or disadvantage on the juvenile's own. Thus, it cannot be said that the juvenile protective disposition affects the future of the juvenile. As seen earlier, the Supreme Court precedents holding that the crime subject to protective disposition may also be considered as reference material for recognizing habitual sex or dampness cannot be interpreted as restricting or prohibiting juvenile protective disposition as reference material for juvenile protective disposition. Thus, the above Supreme Court precedents cited that the above provision cannot be applied to the case where the above precedents are modified.

The instant provision applies only to a case where the recidivism of a sexual crime is recognized solely on the basis that a criminal record or record was committed against a sexual crime and other circumstances are insufficient. In a case where a juvenile who received a juvenile protective disposition due to a sexual crime again commits a sexual crime within a short time after the adult age, it means that the juvenile protective disposition, considering the possibility of improvement by educational measures, was not well effective. However, in full view of various circumstances such as the content and frequency of the past crime, and the circumstances leading to recidivism, it is sufficient to find the recidivism. In addition, in a case where a sexual crime again was committed after a considerable period of time after the juvenile protective disposition was issued, caution should be taken to determine whether the sexual crime committed in the past at the stage of the minor’s lodging can be a practical material material evidence to acknowledge the recidivism of the sexual crime. Accordingly, even if a sexual crime subject to a juvenile protective disposition is included in the sexual crime as prescribed in the instant provision, it is unlikely that the act may cause any disadvantage in the future because of the past juvenile’s fact that has not been anti-socialized.

B. The supplementary opinion to the Majority Opinion concerns that the system may be abused by recognizing an attachment order, unless it is limited to cases where a final and conclusive judgment of conviction was rendered in relation to the past record of sexual crime, and where a juvenile protective disposition was issued in this case as to the past record of sexual crime and the dismissal of prosecution or acquittal was rendered, and the prosecution was suspended.

However, it is difficult to view that the two sexual crimes to which the instant provision applies include sexual crimes subject to juvenile protective disposition, as a matter of course, the conclusion that the two sexual crimes, including the dismissal of prosecution, dismissal of prosecution, and suspension of indictment, should also be included in the case of two sexual crimes.

In addition, in order to apply the instant provision, the recidivism of a sexual crime is recognized in addition to that of committing two or more sexual crimes, and to recognize an attachment order, the risk of recommitting a sexual crime should be recognized as a whole in accordance with Article 5(1) of the Electronic Monitoring Act. Therefore, even if the instant provision takes an interpretation that the records, etc. of the suspension of indictment, other than the records of juvenile protective disposition, which have undergone the court’s trial procedures in connection with the application of the instant provision, are included in the two sexual crimes to which the instant provision applies, it is doubtful how the case requesting the attachment order is actually questionable. However, even if such a case is possible, the attachment order can only pass through the official door of proving the recidivism of the instant provision, and further, the attachment order can be sufficiently resolved through the examination of whether or not the act of the relevant sexual crime, the recidivism or the risks of recidivism, and the existence of evidence and probative value.

As above, I express my concurrence with the Dissenting Opinion.

Justices Yang Sung-tae (Presiding Justice)