[성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강간등)·상해·폭행·부착명령] 확정[각공2013상,500]
In a case where a prosecutor requested a person Gap to whom the attachment order was requested, to attach an electronic tracking device under the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, and the court conducted a joint trial on the specific crime case against Gap, etc., and then rendered a decision to send the electronic tracking device to the Juvenile Department for the prosecuted case, the case dismissing the request for the attachment order on the ground that the defendant case, which is the premise of the request, continues to exist, unless the prosecutor made a decision
In a case where a public prosecutor filed a request for the attachment order against Gap for the reasons under Article 5 (1) 4 of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “the Location Monitoring Act”), and the court jointly examined Gap's specific crime case including violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (13 years old, minor rape, etc.) and then rendered a decision to send the case to the Juvenile Department concerning the specific crime case, the case where the court of the case of the defendant case and the case of the case of the case of the attachment order, which are the specific crime cases, do not have an explicit provision in the Location Monitoring Act or the Juvenile Act as to how the case of the case of the attachment order should be handled in the case of the juvenile case, but the case of the case of the attachment order, which is the case of the Juvenile Department under Article 50 of the Juvenile Act, is defined as "defendant case" and the case of the attachment order, which is subject to the attachment order, should be viewed as a separate claim with the nature of the attachment order of the Juvenile Department Act, and its comprehensive position of the case.
Article 4, Article 5(1)4, Article 9(4), (5), and (9) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders; Article 7(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012); Articles 2, 50, and 51 of the Juvenile Act; Article 7 of the Medical Treatment and Custody Act
Defendant and the respondent for attachment order
grandchildren et al. and one other
Attorney Yoon Gyeong-hee
The request for the attachment order of this case is dismissed.
1. Summary of the cause of the attachment order;
A prosecutor filed a request for an order to attach an electronic tracking device based on Article 5(1)4 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders on the ground that the person subject to the request for an attachment order commits rape of the victim and committed a sexual crime against a minor under 16 years of age, and that there is a risk of repeating a sexual crime.
2. Determination
A. The court held that the case of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (a minor rape, etc. under the age of 13) and the case of application for attachment order under the instant case, which is a specific crime case against the Defendant and the person who requested attachment order, should be tried together. The court decided to transfer the case of the instant specific crime to the juvenile department of the Busan Family Court pursuant to Article 50 of the Juvenile Act, as the juveniles provided for in Article 2 of the Juvenile Act, which are the above specific crime case, due to considerable reasons to be placed in the protect
B. However, in a case where the competent court of this case applied for the attachment order for specific crime case and the attachment order for specific crime case is deemed proper, the location tracking Act or the Juvenile Act does not explicitly provide for how to deal with the above case. However, Article 50 of the Juvenile Act specifies the case subject to the attachment order for specific crime case as "defendants"; and Article 50 of the Juvenile Act does not provide for an institutional device for how to deal with the case in the case subject to the attachment order for specific crime case because there are no explicit provisions regarding the attachment of tracking devices in the juvenile protection case, and Article 4 of the Location Monitoring Act prohibits attachment of an electronic device under the Act, and Article 9 (9) of the Location Monitoring Act provides that "the court may independently file a request for the attachment order for the attachment order for the case subject to the attachment order for specific crime case after the conclusion of the sentence of imprisonment without prison labor," and thus, it does not provide for the case subject to the attachment order for separate treatment of the case subject to the attachment order for the case subject to the attachment order for the case subject to the attachment order.
3. Conclusion
Therefore, the defendant's case and the attachment order case of this case are naturally separated by the notification of the juvenile department's assignment order to the juvenile department. Thus, the purport of the case is clearly stated in each court decision, and the request for the attachment order of this case is dismissed in accordance with Article 9 (4) 1 of the Location Monitoring Act. It is so decided as per Disposition.
Judges Sung-dae (Presiding Judge)