1. Defendant case

Examining the reasoning of the judgment below in light of the evidence duly admitted by the court below, the court below is just in finding the victim non-indicted 1 guilty of violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof among the facts charged in the instant case on the grounds stated in its reasoning. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the admissibility and interpretation of genetic testing results through abuse of

In addition, Article 15 of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (amended by Act No. 10258, Apr. 15, 2010) does not stipulate any crime subject to victim's complaint under Article 5 (1) of the same Act as an offense subject to victim's complaint. Thus, it is reasonable to interpret these crimes as not subject to victim's complaint (see Supreme Court Decision 201Do453, Apr. 14, 201). Accordingly, the court below found the Defendant and the requester for medical treatment and custody, the respondent for attachment order, and the respondent for treatment order (hereinafter referred to as "defendants") under the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof among the facts charged in the instant case to the same purport does not constitute an offense subject to victim's complaint. In so doing, it is justifiable to have convicted the Defendant and the requester for medical treatment and custody order, and there is no error in the misapprehension of legal principles as to the offense subject to victim's complaint.

Meanwhile, the argument that the court below erred by deviating from or abusing discretion in sentencing determination constitutes an allegation of unfair sentencing. However, under Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years is imposed, an appeal on the ground of unfair sentencing is allowed. As such, in this case where the court rendered a more minor sentence against the defendant, the argument that the amount of the punishment is unfair is not a legitimate

2. As to the medical treatment and custody claim

Examining the reasoning of the judgment below in light of the evidence duly admitted by the court below, it is just for the court below to render medical treatment and custody to the defendant on the grounds that the defendant needs to receive medical treatment at a medical treatment and custody facility and there is a risk of recidivism, and there is no error of law by misunderstanding the legal principles on the risk of recidivism

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

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, it is justifiable for the lower court to order the Defendant to attach an electronic tracking device for 20 years on the ground that the risk of recidivism of sexual assault crimes exists, and there is no error of law by misapprehending the legal doctrine on the risk of recidivism, as alleged in the grounds of appeal.

4. As to the case of medical treatment order request

A. An order of pharmacologic treatment by the Act on Pharmacologic Treatment of Sexual Impharmacologics (hereinafter “Pharmacologic Treatment Act”) is a security measure to provide a sex-oriented patient who has committed a sexual crime against the person 19 years of age or older who is deemed likely to recommit a sexual crime by means of medication, psychological treatment, etc., for a certain period of time. As a matter of principle, the administration of drugs, which may cause permanent change to the person’s body after the completion of punishment, should be carried out for a considerable period of time without the consent of the respondent, and thus, constitutes the most direct and influent disposition for the physical freedom and right to self-determination guaranteed by the Constitution, and thus, it is reasonable to impose such order only in extenuating circumstances where it is deemed necessary to take additional measures to prevent recidivism, promote rehabilitation in spite of the execution of punishment, and protect the people (see Supreme Court Decision 2013Do1231, Feb. 27, 2014; 2013Do201325, Feb. 21, 2013)

Meanwhile, Article 2(1)3 of the Medical Treatment and Custody Act provides that a sexually disabled person who has committed a sexual crime shall be subject to medical treatment and custody. Articles 2(1)1 and 4(1) of the Medical Treatment and Custody Act provide that a sexually disabled person as defined in Article 2(1)3 of the Medical Treatment and Custody Act shall be subject to medical treatment and custody as one type of a patient with sexual intercourse who is subject to medical treatment order. Therefore, a sexually disabled person who has committed a sexual crime may be subject to medical treatment and custody together with a medical treatment order. As seen earlier, the medical treatment and custody order itself, which is enforced without the consent of the person subject to medical treatment and custody, serves as a significant limitation on the freedom of the body and self-determination of the person subject to medical treatment and custody. In principle, the medical treatment and custody order should be terminated when it is no longer necessary for the person subject to medical treatment and custody to receive medical treatment and custody within the scope of the period of confinement stipulated under the Medical Treatment and Custody Act. If a medical treatment and custody order is executed within two months before the termination, termination, termination or termination of medical treatment and entrustment.

B. According to the records, around September 2012, when the defendant was sentenced to 10 years of imprisonment for sexual crimes committed from around April 2003 to around August 2003, which had been nine years of age, the criminal of this case committed on or around September 2012, which was at a time similar to the above crime, was later revealed as the criminal of this case. The prosecutor then asked the defendant to issue a medical treatment and custody order along with an attachment order, after receiving a mental diagnosis from a psychiatrist belonging to the Medical Treatment and Custody Office, after going through a probation officer's request before the probation officer's request, and then filed a request for a medical treatment and custody order. The result of the above mental diagnosis showed that the defendant was diagnosed as having a non-closed type of bitic personality disorder and anti-social personality disorder, and the appraiser presented the defendant's opinion that it is necessary to treat sexual impulse behavior and medication through a medical treatment and custody, and that the above investigation was conducted before the evaluation of the risk of recidivism of sexual offenders and the risk of recidivism by interview with the defendant.

C. However, in light of the content of the above mental appraisal statement and investigation statement, which the court below is based on the medical treatment order for the defendant, it is merely deemed that the risk of recidivism, etc. of the defendant at the time of appraisal or investigation is assessed, and it is difficult to view that the risk of recidivism, etc. of the medical treatment order is assessed at the time of execution of the medical treatment order, i.e., at the time of termination of the medical treatment order. Furthermore, the possibility that the disability is cured or improved through appropriate treatment at the time of termination of the medical treatment and custody cannot be ruled out. Therefore, in cases where the medical treatment and custody order is requested together, the specific contents of the medical treatment to be performed through the medical treatment and custody, treatment effect expected by it, reasons for the medical treatment order after the medical treatment and custody, and the period expected

Therefore, the court below should have determined whether to accept the request for a medical treatment order carefully after securing objective data necessary to determine whether it is likely to recommit sexual crimes at the time of the execution of a medical treatment order, notwithstanding the progress of medical treatment through medical treatment and custody, and comprehensively evaluating various circumstances, separate from the risk of recidivism as a requirement for a medical treatment and custody.

Nevertheless, the lower court, without doing so, received a request for a medical treatment order on the basis of only the reasons indicated in its reasoning, such as the statement of the above mental sentiment and the written investigation before the request and the records of the Defendant’s criminal act. In this regard, the lower court erred by misapprehending the legal doctrine regarding “risk of recommitting sexual crimes” as the requirements for a medical treatment order request as seen earlier, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment

5. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for medical treatment order is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All appeals regarding the defendant's case, medical treatment and custody claim and attachment order claim are dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee In-bok (Presiding Justice)