The Defendant did not submit personal information to the head of a competent police agency on September 26, 2015 on the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes for which punishment became final and conclusive ( even if he/she did not submit personal information to the head of a competent police agency on the basis of obscene crimes using communications media, the Defendant’s act does not constitute a crime since he/she did not have to submit personal information according to the Constitutional Court’s unconstitutional decision.

2. The facts charged in this case

On September 18, 2015, the Defendant was in violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a person who was sentenced to imprisonment with prison labor for six months for obscene crimes using communications media and sentenced to a stay of execution for two years on September 26 of the same year, and the judgment became final and conclusive on September 26 of the same year. Although the Defendant was obligated to submit personal information to the head of the competent police office within 30 days from the date the judgment becomes final and conclusive under Article 43(1) of the Act on Special Cases concerning the Punishment

3. The judgment of the court below

A. On March 31, 2016, the Constitutional Court rendered a decision of unconstitutionality as to the legal provision that allowed a person whose conviction of the crime of obscenity using a communications medium was affirmed by the decision of 2015Hun-Ma688, but the above decision of the Constitutional Court became final and conclusive by the crime of obscenity using a communications medium. However, Article 42(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012) provides that a person who is finally and conclusive by the decision of the Constitutional Court shall be a person subject to registration of personal information under Article 13 shall be a person subject to registration of personal information under Article 43(1) of the above Act. The above decision of the Constitutional Court is a person subject to punishment under Article 50(3)1 of the above Special Cases concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012).

C. Therefore, the defendant's act constitutes a crime of violation of the Act on Special Cases Concerning the Protection of Secrecy.

4. Judgment of the court below

A. The Defendant asserts that the Defendant did not submit personal information to the head of the competent police agency within 30 days after the date on which the offense of violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (obscenity using communications) finalized on September 26, 2015 was finalized, but did not constitute a crime following the Constitutional Court’s decision of unconstitutionality.

B. Meanwhile, in the Supreme Court Decision 2015Hun-Ma688 Decided March 31, 2016, the Constitutional Court rendered a decision of unconstitutionality on the ground that “A person who is finally convicted of a crime under Article 13 shall be a person subject to registration of personal information” in Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012; hereinafter referred to as “Special Cases Act”) that a person who is finally convicted of a crime under Article 13 is a person subject to registration of personal information of the claimant’s right to self-determination.”

C. In this regard, Article 47(3) of the Constitutional Court Act provides that the law or provision on punishment shall retroactively lose its effect. The "Punishment Act" does not narrow the provision on punishment in itself, but shall be broadly interpreted as a legal provision that constitutes the element of punishment, which constitutes the premise of punishment. The applicable provisions of this case to the defendant are Articles 50(3)1, 43(1), and 42(1) of the Act on Special Cases Concerning the Punishment, etc., and although the provisions that lose their effect upon the decision of unconstitutionality of the above Constitutional Court are parts of Article 42(1) of the Act on Special Cases Concerning the Punishment, etc. of Personal Information, the provisions that lose their effect due to the decision of unconstitutionality of the above Constitutional Court are parts of persons who have become final and conclusive for crimes under Article 13 of the Act on Special Cases Concern

D. If so, the case in which a person subject to registration of personal information under Article 42(1) becomes final and conclusive as a crime under Article 13 of the Act on Special Cases, and is in violation of Article 50(3)1 and Article 43(1) shall be deemed retroactively null and void, since the case constitutes a decision of unconstitutionality as to "Act on Punishment of Penalties" under Article 47(3) of the Constitutional Court Act.

E. In addition, an act based on a law that has been determined as unconstitutional may not be an act because it loses its effect without a separate procedure. Unlike the repeal of a law, the invalidation of a law due to a decision of unconstitutionality does not go through the legislative procedure or promulgation procedures, and is not removed externally. However, in substance, the legal provision that has the same effect as the repeal of a law has no effect or function any longer in the legal order. As such, no one can assert the validity of the law, and the State agency may continue to apply the legal provision on the premise that the legal provision is valid. Ultimately, even if the Defendant was liable to submit personal information within 30 days from the date on which the law became final and conclusive on September 26, 2015 (in the case of a crime of obscenity using communications media, punishment against the Defendant on the ground of violation of such duty cannot be recognized in light of such legal spirit (in the case of a law repealed due to a change in its ideology, it is unreasonable to punish the Defendant on the ground that it does not constitute an offense under Article 1(2) of the Criminal Act).

F. Ultimately, it is reasonable to view that Defendant’s act constitutes a case that does not constitute a crime. Therefore, we accept Defendant’s assertion of misapprehension of legal principles.

5. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following judgment is

【Discretionary Judgment】

The facts charged of this case are as stated in Paragraph (2) above, and as stated in Paragraph (4) above, since the defendant's case does not constitute a crime, the defendant shall be acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act.

Judges Kim Gin-jin

Judge Kim Jong-hun