5. Partial Credit on Pretrial Detention Case

[784 KCCR 21-1(B), 2007Hun-Ba25, June 25, 2009]

The Petition for Unconstitutionality of the Article 5 (2) of the Act on Sexual Crime Punishment and the Protection of Victims Thereof Case

Questions Presented

1.Whether "or partial" in the Article 57 (1) of the Criminal Act which regulates pretrial detention credit infringes the bodily freedom by violating the principle of due process and the presumption of innocence

2.A.Whether the principle of proportionality between crime and liability is violated by the provision in the Article 5 (2) Sexual Crimes and Protection of Victims Act (hereinafter, "Sexual Crime Act") which prescribes that if one who committed the crime of the Article 334 of the Criminal Act (aggravated robbery) further commits the crime of the Article 298 of the Criminal Act (sexual assault), then that person shall be sentenced to capital punishment, lifetime or minimum ten years of imprisonment

B.Whether above mentioned provision violates the judge's discretion for sentencing

C.whether the above mentioned provision violates the principle of equality by losing the balance under penal system

Summary of the Decision

1.Article 57 (1) of the Criminal Act allows a judge's discretion to give a defendant a partial pretrial detention credit. A judge exercises this discretion in order to prevent intentional and unreasonable delay of a proceeding caused by defendant. The exercise of the discretion is intended to increase the effectiveness of the criminal proceeding and to decrease the caseloads of appellate courts by deterring frivolous appeals. However, it should be noted that a legal proceeding for a defendant in custody is allowed as an exception to the principle of

"out-of-custody investigation" which is stemming from the principle of the presumption of innocence. In this case, however, the partial pretrial credit prescribed in the Article 57 (1) of Criminal Act as "or partial" operates as a special application of the said exception and thus seriously infringes on the bodily freedom which is the most essential basic right.

Further, "pretrial credit provision" cannot be a proper measure to achieve the legislative intent to deter appeals and prevent frivolous appeals if it is applied after the notice of appeal is filed. Instead, it obstructs a criminal defendant's right to trial and appeal under the pretext of preventing frivolous appeals. Additionally, if the law allows the selective application of the pretrial credit in case of the intentional delay of a legal proceeding and the frivolous appeal by a defendant in custody, it violates the principle of due process and the presumption of innocence because it ends up punishing the manner of a litigation which cannot be subject to a criminal penalty.

Under the principle of presumption of innocence, a criminal defendant shall not be treated as a guilty person before a conviction is entered and thus shall not be materially and immaterially disadvantaged in dealing with legal and factual issues. Particularly, pretrial detention is same as serving time in terms of the restriction of freedom of a criminal defendant whose bodily freedom is infringed. Therefore, pretrial credit should be given without exception under the principle of human rights and equality. However, "pretrial credit provision" does not faithfully reflect the nature of pretrial detention and allows a judge to be able to apply only partial pretrial credit. In this regard, pretrial detention credit provision prescribed in the Article 57 (1) of the Criminal Act as "or partial" violates the constitutional principle of the presumption of innocence and due process.

2. A.'Sexual Crimes and Protection of Victims Act' (hereinafter, "Sexual Crime Act"), Article 5 (2) regulates aggravated robbery and sexual assault in order to prevent and eradicate the sexual crime which infringes on the victim's property and sexual autonomy and further destroys the institution of family. The penalty provision is not found severe in view of the nature of crime, the level of liability and its deterrence effect.

B.Lawmakers enacted this law to block the possibility of the suspension of sentence for the crime of sexual assault during aggravated robbery. This legislative decision does not interfere with court's sentencing power because it is not arbitrary under the circumstances where the suspension of sentence becomes available if the statutory mitigating factors and discretionary mitigating factors are combined.

C.Sexual assault could become a more serious crime than rape by causing more severe damages on victims. Therefore, the offense of a normal sexual assault could be equally or more seriously penalized than a rape depending on motive, circumstances and the protected interest of the victim. When an offender of an aggravated robbery sexually assaults a victim, the offender is to be treated no less seriously than a rapist. Therefore, the penalty provision in the instant case is not found to be an arbitrary legislation and does not violate the principle of equality.

Concurring Opinion of Justice Cho Dae-hyen

If a law does not guarantee the full pretrial credit while restricting a citizen's bodily freedom in exercising a state's power to punish criminals, the law does not comply with the Constitution, Article 37 (2), which prescribes a necessary and minimum amount of basic rights shall be restricted. The instant "pretrial credit provision" does not provide any legal basis to allow partial pretrial credit with a judge's discretion and therefore violates the Constitution, Article 37 (2).

Dissenting Opinion of Justice Lee Dong-heub

Pretrial credit is the area where the Legislature's extensive liberty of lawmaking power exists. Therefore, unless the discretionary power of lawmaking is palpably against reasonableness, the pretrial credit provision shall not be found unconstitutional. For this reason, I do not agree with the assertion that the full credit for pretrial detention warrants human rights. If the Criminal Act, Article 57 (1) does not

allow partial pretrial credit, it cannot draw a distinction between pretrial detention and post-conviction incarceration. Further, it is against criminal justice to allow a full pretrial detention credit because, in some cases, a defendant is responsible for some parts of pretrial detention period. Given mixed nature of pretrial detention, the Criminal Act, Article 57 (1) is reasonable under the maxim of equity as it allows judge's discretion to apply a partial pretrial credit after determining the necessary time frame for a proceeding and the defendant's responsibility for delay.

Because of the reasonableness and justification, the pretrial credit provision prescribed in the Criminal Act, Article 57 (1) as "or partial" does not infringe on the bodily freedom and therefore does not violate the constitutional principle of due process and the presumption of innocence.

Dissenting Opinion of Justice Kim Jong-dae and Mok Young-joon with respect to the Sexual Crime Act, Article 5 (2)

The Sexual Crime Act 5 (2) applies the sentencing guideline of 'capital punishment, lifetime or no less than 10 years of prison time' to both sexual assault and rape only because the sexual assault is combined with aggravated robbery.

Comparably, the Criminal Sexual Act, Article 6 (2) prescribes that sexual offense with a dangerous weapon or by a group is penalized with no less than three years of prison time. Under this Act, the penalty is grossly different depending on whether a sexual offender with a dangerous weapon or by a group has the intention to commit robbery. With respect to the nature of crimes, the sexual offense without the act of robbery is still a serious crime and therefore cannot justify this gross disparity between penalties. Further, the disparity is not reasonable in view of the seriousness of crimes and the level of the infringement of protected interest.

Additionally, when a person makes an offensive physical contact without permission, it constitutes criminal sexual assault which, if combined with aggravated robbery, results in sexual assault during aggravated robbery which is subject to the Criminal Sexual Assault Act, Article 5 (2). We do not believe that "sexual assault during

aggravated robbery" and "rape during aggravated robbery" should be distinguishable in their natures and regulated differently. Therefore, Sexual Crime Act, Article 5 (2) is without justification with its sentencing guideline and further is against the principle of equality guaranteed by the Constitution, Article 11.

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Party

Petitioner Shin ○-sung

Court Appointed Counsel, Kim Jung-jin

Underlying Case

Supreme Court 2006Do7882, Battery during robbery (Charges: violation of Act on the Punishment of Sexual Crimes and Protection of Victims), Battery during sexual assault

Holding

1."Or partial" of the Article 57 (1) of the Criminal Act violates the Constitution

2.The Article 5 (2) of the Act on the Punishment of Sexual Crimes and Protection of Victims (revised by Act No. 5343 on August 22, 1997), which prescribes that if one who committed the crime of the Article 334 of the Criminal Act (aggravated robbery) further commits the crime of the Article 298 of the Criminal Act (sexual assault), then that person shall be sentenced to capital punishment, lifetime or minimum ten years of imprisonment is not against the Constitution.

Reasoning

I. Introduction of the Case and Subject Matter of Review

A. Introduction of the Case

1.On April 11, 2006, at 04:40, petitioner robbed the victim, Kwon ○-soon (37 year-old female) with twenty centimeter-long knife in the street of E-Mart located at Joongang-Dong, Changwon-City. During the commission of robbery, petitioner put the knife on the victim's neck and threatened her by saying "give me what you have or I'll kill you". Eventually, petitioner took 172,000 won of cash and 700,000 won value of PDA mobile phone from the victim and yet continuously touched the victim's breast with his left hand. Finally, the victim managed to push the petitioner away and called for help by yelling "robber". Subsequently, petitioner stabbed the victim on her neck and the left shoulder one time and caused three weeks of hospitalization.

2.On August 23, 2006 at Changwon District Court(2006 Gohap 84), petitioner was sentenced to five years of imprisonment under the 'Act on the Punishment of Sexual Crimes and Protection of Victims' (Hereinafter, 'Sexual Crime Act') Article 5 (2), Criminal Act, Articles 334 (2), 333 and 298. Petitioner's appeal was denied by Busan High Court (2006No557) on October 26, 2006 and, subsequently, by the Supreme Court (2006Do7882) on February 8, 2007. During this process, Busan High Court applied only twenty-eight (28) days of pretrial detention credit out of fifty-eight (58) days of actual detention period and the Supreme Court applied only one hundred (100) days out of actual one hundred and five (105) days based on the Criminal Act, Article 57 (1).

3.Petitioner filed this constitutional complaint with the Constitutional Court pursuant to Art 68 (2) of the Constitutional Court Act after his motion to request for the constitutional review of 'Sexual Crime Act', Article 5 (2) and the Criminal Act, Article 57 (2) had been denied by the Supreme Court.

B. Subject Matter of Review

Subject matter of review in this case is whether the Article 5 (2) of the Act on the Punishment of Sexual Crimes and Protection of Victims (revised by Act No. 5343 on August 22, 1997), which prescribes that if one who committed the crime of the Article 334 of the Criminal Act (aggravated robbery) further commits the crime of the Article 298 of the Criminal Act (sexual assault), then that person shall be sentenced to capital punishment, lifetime or minimum ten years of imprisonment and "or partial" of the Article 57 (1) of the Criminal Act violates the Constitution.

The text of subject provisions and related provisions are as follows.

[Subject Provision of Review]

Sexual Crime Act (revised by Act No. 5343 on August 22, 1997), Article 5 (Special Robbery and Rape)

(1) If a person who has committed the crime as prescribed in Article 334 or 342 (limited to attempted crimes of Article 334) of the Criminal Act, commits the crime as prescribed in Article 297 through 299 of the said Act, he shall be punished by capital punishment, or imprisonment for life or not less than ten years.

The Criminal Act, Article 57 (Inclusion of Number of Days of Confinement before Imposition of Sentence)

(1) The number of days of confinement before imposition of sentence shall be included in whole or in part to the period of limited imprisonment, or limited imprisonment without prison labor, or lockup at workhouse in respect to a fine or minor fine, or detention.

[Provisions in Reference]

The Criminal Act

Article 297 (Rape)

A person who, through violence or intimidation, has sexual intercourse with a female, shall be punished by limited imprisonment for not less than three years.

Article 298 (Indecent Act by Compulsion)

A person who, through violence or intimidation, commits an indecent act on another shall be punished by imprisonment for not more than ten years or by a fine not exceeding fifteen million won.

Article 333 (Robbery)

A person who forcibly takes another's property or obtains pecuniary advantage from another or causes a third person to do so through violence or intimidation, shall be punished by limited imprisonment for not less than three years

Article 334 (Special Robbery)

(1) A person who commits the crime as prescribed in Article 333 by trespassing upon a human habitation, managed building, structure, ship or aircraft or occupied room at night, shall be punished by imprisonment for life or not less than five years.

(2) The above section shall apply to a person who commits the crime of the preceding Article, armed with a deadly weapon, or accompanied by one or more persons.

Sexual Crime Act

Article 6 (Special Rape)

(1) Any person who commits the crime as prescribed in Article 297 of the Criminal Act carrying any weapon or dangerous thing, or jointly with two or more persons, shall be punished by imprisonment for life or not less than five years.

(2) Any person who commits the crime as prescribed in by the method as referred to in Section 1, shall be punished by imprisonment for not less than three years.

(3) Any person who commits the crime by the method under Section 1, shall be punished according to the examples as referred to in Section 1 or 2.

Act on special cases concerning expedition, etc. of legal proceedings

Article 24 (Inclusion of Number of Detention Days before Adjudication after Appeal)

Where an appeal by the accused or a person other than the accused, is to be dismissed, and if such appeal is acknowledged as having been filed without reasonable grounds, the number of days from the day on which the period of filing an appeal expires to the day on which the period of submitting a written reason for appeal expires,

among the number of detention days before the declaration of adjudication after filing an appeal, shall not be included in the original penalty.

The Criminal Procedure Act

Article 482 (Calculation in Number of Detention Days, etc. Pending Judgment after Appeal)

(1) The whole number of days of detention pending judgment subsequent to the application for appeal shall be included in the calculation of the regular penalty, in the following cases:

1. In cases where application for appeal has been made by a public prosecutor; and

2. In cases where application for appeal has been made by a person other than a public prosecutor, and the original judgment is quashed.

(2) The whole number of days of detention before final and conclusive judgment during the period for which the application for appeal is filed (excluding the number of days of detention subsequent to the application for appeal) shall be included in the calculation of the regular penalty

(3) Upon dismissing the appeal, the number of days of detention pending the application for appeal during the period for service or immediate appeal shall be entirely included in the sentenced penal term.

(4) In cases of sections (1) through (3), one day in the number of detention days shall be counted as one day of penal term or one day of detention term of fine or minor fine

(5) Detention effected after the court of appeal has quashed the original judgment before final and conclusive judgment shall be included in the calculation following the example of the number of days of detention during the pendency of the appeal.

II. Supreme Court's Reason for Denying Motion to Request for the Constitutional Review and the Arguments of the Petitioner and Other Relevant Bodies

A. The argument of the petitioner

1.Compared to rape, sexual assault varies in its seriousness. It may cause more serious damages than rape and it may involve petty offenses. Yet, under the Article 5 (2) of "Sexual Crime Act", those who committed sexual assault during the commission of aggravated robbery may be sentenced to minimum ten years of imprisonment, lifetime or capital punishment which is equal to the sentences of rape during aggravated robbery. Sexual assault during aggravated robbery and rape during aggravated robbery are same in terms of combined crimes and status crime. However, they are different in detailed criminal acts and therefore should be distinguished by the acts of crimes and criminal liability. Yet, the Article 5 (2) of Sexual Crime Act prescribes the minimum ten years of imprisonment for sexual assault during aggravated robbery. Further, it blocks the possibility of suspension of sentence if proper mitigating factors are not presented and thus infringes upon judge's sentencing discretion. Finally, it violates substantial principle of the rule of law and the rule against excessive restriction stipulated in the Article 10 and Article 37 (2) of the Constitution.

The Criminal Act, Article 297 prescribes minimum three years of imprisonment for rape while the Article 298 prescribes maximum ten years of imprisonment or maximum 15,000,000 won of fine for sexual assault. Similarly, the Sexual Crime Act, Article 6 prescribes minimum five years of imprisonment for rape with dangerous weapon or rape by more than two people while it separately prescribes minimum three years of imprisonment for sexual assault. Yet, the Article 5 (2) of Sexual Crime Act prescribes capital punishment, lifetime or minimum ten years of imprisonment for sexual assault during the commission of aggravated robbery which does not make any distinction in its sentence with rape during the commission of aggravated robbery. Thus, the same sentencing guide line for two different crimes cannot provide any justification for the penal system and also violates the principle of equality.

2.In a criminal proceeding, when a judge applies only a partial credit on pretrial detention pursuant to the Article 57 (1) of the Criminal Act, he or she violates the constitutional principle of the presumption of innocence and due process under the Article 12 (1) of

the Constitution. This also creates the infringement on equal rights and right to fair trial of in-custody criminal defendants in the process of appeal.

B.The Supreme Court's reason for denying petitioner's motion to request for the constitutional review

(intentionally omitted)

C. Other relevant bodies' arguments

(intentionally omitted)

III. Review on the Article 57 (1) of Criminal Act

A. General theory on pretrial detention credit

1. Nature of pretrial detention credit

The Criminal Act, Article 57 (1) prescribes that "the number of days of pretrial detention before imposition of sentence shall be included in whole or in part to the period of limited imprisonment, or limited imprisonment without prison labor, or lockup at workhouse in respect to a fine or minor fine, or detention". Pretrial detention purports to prevent escape and destruction of evidence and thus increase the efficiency of investigation, trial and sentencing despite the principle of presumption of innocence. Thus, it is an inevitable measure during the pretrial period by forcibly detaining criminal defendants and yet is not regarded as serving the sentence. However, pretrial detention is actually similar with serving the sentence because it deprives liberty and imposes pain. Further, the period of pretrial detention is usually not controlled by a defendant's compliance but by criminal procedural reasons. For this reason, pretrial detention credit should be applied to the defendant's sentence after being found guilty under the principle of equality (12-2 KCCR 17, 26, 99Hun-Ka7, July 20, 2000).

2. Pretrial detention credit in Korea

Pretrial detention credit is regulated under the Criminal Act, Article 57 and the Article 24 of 'Act on Special Cases concerning Expedition of Legal Proceedings'. Pretrial detention credit is usually calculated under the principle of 'legal proceeding days' pursuant to the Article 57 of the Criminal Act and yet it is sometimes calculated under the principle of 'actual days' when those detained days are not caused by the defendant's intentional delay of proceeding. 'Actual days' does not allow judge's discretion in calculating pretrial detention credits and therefore needs not to be decided during the sentencing hearing(Supreme Court, 95Do2263, January 26, 1996). However, 'legal proceedingdays' allow judge's discretion in calculating pretrial detention credits.

3.Since pretrial detention is substantially similar to serving the sentence in its effects by depriving liberty and causing pain, there arises an issue whether partial application of pretrial credit by judge violates constitutional principle of due process and the presumption of innocence.

B. Principle of due process and the presumption of innocence

1. Constitutional guarantee of bodily freedom

Bodily freedom is the premise to all the basic rights as the most basic right to realize human dignity and value because no freedom and rights is meaningful without guarantee of bodily freedom. In the history of human freedom and rights, bodily freedom has usually been infringed by government power and leader's forcible repression and, therefore, bodily freedom is focused on the freedom from governmental power. Since bodily freedom may easily be infringed by governmental punishment power, our Constitution specified the limit of punishing power in order to prevent the abuse of state's punishment power.

The Article 12 (1) of the Constitution prescribes "all citizens have bodily freedom" and further prescribes that "no person shall be arrested, detained, searched, seized or interrogated except as provided

by Act, and no person shall be punished, placed under preventive restrictions or subject to involuntary labor except as provided by Act and through lawful procedures". It clearly enumerates the principle of due process in order to guarantee bodily freedom. The Article 12 (3) of the Constitution, further, states that "warrants issued by a judge through due process upon the request of a prosecutor shall be presented in case of arrest, detention, seizure or search", and thereby adopts the principle of the arrest by warrant. Also, the Article 37 (2) of the Constitution states, "the freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare", and thereby provides statutory reservation to the restriction of basic rights. Finally, the Article 27 (4) of the Constitution proclaims the principle of the presumption of innocence by prescribing that "the accused shall be presumed innocent until a judgment of guilt has been pronounced".

2. The principle of due process

The Article 12 Sections 1 and 3 of the Constitution prescribes the constitutional principle of the presumption of innocence. These are the fist application of the western common law's principle of due process to our Constitution by the 9th revision the Article 11 (1) of the former Constitution on October 29, 1987 which states that 'no person shall be punished, placed under preventive restrictions or subject to involuntary labor except as provided by Act'. Historically, the principle of due process is originated from the England's Magna Carta, Article 39, developed into Law of Edward III of England and the Article 4 of the Bill of 1628 and finally settled into the 5th and the14th Amendment of the U.S. Constitution. Since then, this principle became one of the basic principles of the U.S. Constitution governing general rule of state acts. Further, it was transplanted to the civil law countries and settled into the principle of the rule of law and the principle of statutory reservation (4 KCCR 853, 876, 92Hun-Ka8, December 24, 1992).

Despite some differences, it is generally accepted that the principle of due process is independent constitutional principle and, further, it is extended to guarantee substantial due process as well as procedural

one. With respect to criminal procedure, it is applied to the entire process as a basic rule. Given this importance, we should interpret its importance such that any statute restricting bodily freedom should not infringe upon the basic contents of bodily freedom, the rule of proportionality and rule against excessive restriction (4 KCCR 853, 876-878, 92Hun-Ka8, December 24, 1992).

3. The principle of the presumption of innocence

The principle of the presumption of innocence means that the accused and defendants should be presumed innocent until proven guilty and any infringement of rights should be kept minimal. This principle is not limited within the rule of evidence but also applies to the entire criminal process from investigation stage to trial level as a leading rule which minimizes the state of bodily confinement (15-2(B) KCCR 311, 320, 2002Hun-Ma193, November 27, 2003). Until proven guilty, the principle of presumption of innocence states, the accused and criminal defendants should be presumed innocent during the process of prosecution, trial and execution of sentence and their bodily freedom should not be infringed. This principle is the forcible principle to the criminal punishment process under the constitutional order which guarantees the human dignity as the center of basic rights. This principle, as applied to criminal procedures, created the prosecutor's burden of proof, bail system, bond hearing and preventive measures against detention of body and inappropriate treatment of the accused and defendants (13-2 KCCR 699, 703, 2001Hun-Ba41, November 29, 2001).

C. Review

1. The principle of out-of-custody investigation

Under the principle of presumption of innocence, the investigation and trial should proceed without the confinement of defendant's body. Therefore, pretrial detention should be made as an exceptional measure under the circumstances where the confinement of body is inevitable to achieve the goal of criminal prosecution. Even when the pretrial

detention is inevitable, however, the detention period should be minimized as possible (15-2(B) KCCR 311, 321, 2002Hun-Ma193, November 27, 2003). The bodily freedom under the Article 12 of the Constitution and the principle of presumption of innocence under the Article 27 (4) of the Constitution were later legislated into the Article 198 (1) of Criminal Procedure Act which prescribes that "in principle, investigation of a defendant should be done without confinement of defendant's body".

2. Calculation of pretrial detention credit

Although a criminal defendant is inevitably detained for investigation purpose and trial process, the defendant's detention period should be kept minimal not violating the rule against excessive restriction and essential aspects of the bodily freedom. Otherwise, the confinement of body constitutes the infringement of bodily freedom under the principle of presumption of innocence.

Further, even if a criminal defendant is legally detained for the need of state's criminal prosecution, the pretrial detention period should be properly compensated because it is substantially akin to serving the sentence in terms of the deprivation of bodily freedom. Therefore, if a defendant is found not guilty, monetary compensation may be awarded to the defendant. If a defendant is found guilty, then, pretrial detention credit is applied to the sentence.

3. Discretionary application of pretrial detention credit and its goal

The Article 57 (1) of the Criminal Act allows a judge's discretion to apply 'the entire or a partial pretrial detention credit'. A judge exercises this discretion in order to prevent intentional or unreasonable delay of a proceeding caused by a defendant. The exercise of the discretion is aimed to increase the effectiveness of a criminal proceeding and to decrease of the caseloads of appellate courts by deterring frivolous appeals.

4. The legitimacy of discretionary application of pretrial detention credit

However, as we discuss below, the partial application of pretrial detention credit cannot be found legitimate under the principle of presumption of innocence and due process.

(A) It should be noted that a legal proceeding for a defendant in custody is allowed as an exception to the principle of "out-of-custody investigation" which is stemming from the principle of presumption of innocence. In this case, however, the partial pretrial credit prescribed in the Article 57 (1) of Criminal Act as "or partial" operates as a special application of the said exception and seriously infringes on the bodily freedom which is the most essential basic right.

(B) Pretrial detention is substantially similar with serving sentence in its effects of depriving bodily freedom and causing pain. Further, if we think about possible mental stress and anguish for the future caused to defendant during the pretrial detention period, we do not find it is less restrictive kind of detention than serving the sentence. Although some people argue that pretrial defendants are better treated than convicted prisoners in terms of less restriction of interview times, transfer of detention facilities and no labor, this kind of treatment for pretrial defendants are to be considered natural under the principle of the presumption of innocence. Further, the inequality of treatment between pretrial defendants and convicted prisoners should be resolved from the perspective of the improvement of the treatment for convicted prisoners not vice versa.

(C) Some people argue if a criminal defendant intentionally delays a proceeding, those delayed period should not be applied for the purpose of efficient legal proceeding. Yet, it is not easy to distinguish the exact days of intentionally delayed period. Further, the partial application of pretrial detention credit is nothing but to punish the defendant's legal attitude or manner which is not punishable under criminal law and is against the principle of the presumption of innocence and due process.

(D) In criminal procedure, appeal system is designed to correct

wrong decision and unify the application and interpretation of law. Thus, frivolous appeal should be prevented and controlled because it unnecessarily delays criminal proceeding and prompt criminal administration by increasing workloads of appellate court. Yet, the right to appeal is the legitimate right of criminal defendant and can be restricted only by the principle of proportionality under the Article 37 (2) (8-2 KCCR 258, 270, 95Hun-Ka1, October 4, 1996; 11-2 KCCR 73, 81, 96Hun-Ba19, July 22, 1999). The Article 57 (2) of the Criminal Act cannot be a proper measure to achieve the legislative intent of deterring appeals and preventing frivolous appeals if it is applied after the notice of appeal is filed.

In other words, although a criminal defendant intends to introduce favorable new witness and evidence, he or she, being situated in a weaker position than a prosecutor, may possibly give up an appeal because of the Article 57 (2) of the Criminal Act. Further, the Supreme Court ruled that it is judge's discretion to apply a partial pretrial credit pursuant to the Article 57 (2) of the Criminal Act (Supreme Court, 2005Do4758, October 14, 2005; Supreme Court, 93Do2505, November 26, 1993). With respect to calculation of pretrial detention credit, the appellate court does not have a jurisdiction on the calculation of lower court even if the lower court applied only a partial pretrial detention credit (Supreme Court, 93Do2505, November 26, 1993; Supreme Court, 91Do353, November 26, 1993). Under the circumstances, a criminal defendant may not appeal to avoid the situation where only a partial credit is applied after filing an appeal. After all, this system obstructs a criminal defendant's right to trial and appeal under the pretext of preventing frivolous appeals.

(E) The purpose of pretrial detention is for the efficient criminal proceeding, that is, proper fact finding and securing defendant's court presence and enforcement of sentence. Pretrial detention, therefore, should not be allowed for the purposes other than the above stated. Therefore, any attempt to prevent the delay of legal proceeding and frivolous appeals through pretrial detention purports to achieve administrative efficiency of justice system and yet they are not within the original purposes of pretrial detention system above stated.

(F) Pretrial detention is an exception to the principle of presumption of innocence by seriously restricting bodily freedom. The criminal defendant in custody is already mistreated compared to the out-of-custody defendants by the virtue of being in custody. Under the circumstances, it would be double inequality if a defendant in custody receives only a partial pretrial detention credit while a defendant out of custody serves fully credited time once sentenced.

5. Sub-conclusion

Under the principle of the presumption of innocence, a criminal defendant shall not be mistreated as a guilty person before a conviction is entered and thus shall not be materially and immaterially disadvantaged in dealing with legal and factual issues. Particularly, pretrial detention is substantially same as serving sentence in terms of the restriction of bodily freedom. Therefore, pretrial credit should be applied without exception under the principle of human rights and equality. However, "pretrial credit provision" does not faithfully reflect the nature of pretrial detention and allows a judge to be able to give only partial pretrial credit to a criminal defendant. In this regard, pretrial detention credit provision prescribed in the Article 57 (1) of the Criminal Act as "or partial" violates the constitutional principle of presumption of innocence and due process.

IV. Sexual Crime Act, Article 5 (2)

A. Constitutional Issues

"Sexual assault during aggravated robbery" and "rape during the aggravated robbery" are same in aggravated robbery but different in types of sexual assault. Yet, the Article 5 (2) of Sexual Crime Act treats two crimes in the same way by imposing the same sentencing guide line of "capital punishment, lifetime or minimum ten years of incarceration" and this raises a question whether it violates the principle of proportionality between crime and liability and also violates the principle of equality by losing the balance of penal system due to the excessively harsh punishment for sexual assault

during aggravated robbery in comparison with rape during aggravated robbery.

B. Legislative history of Sexual Crime Act, Article 5 (2)

1.Under the Criminal Act, Article 339, rape by a robber constitutes rape during the robbery and is regulated with minimum ten years of imprisonment or lifetime sentence. This crime is the combination of rape and robbery. It has been committed quite often by robbers when victims cannot resist during the commission of robbery and therefore is considered as aggravated element of robbery. Despite this criminal penalty, rape during robbery has continuously increased since mid 1980's and its motive tends to be the concealment of the crime by humiliating female victims rather than sexual impulse. Thus, the crime tends to be planned and organized and includes sexual perversion. Especially, when the crime occurs in the house at night or under the circumstances where victims cannot resist due to the fear of impending danger by weapon and the number of offenders even in outdoor, it is often committed in front of victim's other family members and thus destroys the entire household as well as the victim's individual legal interest. Nevertheless, the preexisting rape during robbery was not able to deter the rape during robbery which destroys family institution. Further, it was not able to regulate other sexual assaults during robbery because it only regulated rape during robbery thus created a legislative loophole.

2.Under the circumstances, on March 25, 1989, the preexisting law was revised by Act No. 4090, 'the Act on additional punishment for specific crimes', Article 5 (6) (1). The new law additionally punishes sexual assault during aggravated robbery which combines the nighttime house robbery or the robbery with dangerous weapon and by a group of offenders and rape or sexual assault under the charge of 'sexual assault during aggravated robbery'. Later, the Act No. 4090 was revised by Act No. 4702 on January 5, 1994 in order to promote the citizens' human rights and to establish healthy public order by preventing sexual crimes and protecting sexual crime victims. The new law, the Sexual Crime Act separated the combined crime by

aggravated robbery and rape or sexual assault from that by nighttime burglary and rape or sexual assault. By doing this, the new law prescribed separate elements for those crimes and differentiated the sentences. Finally, it was revised on August 22, 1997 by Act No. 5343, the Sexual Crime Act. The Article 5 (2) of the Sexual Crime Act extended its coverage by including the attempted aggravated robbery (13-2 KCCR 570, 577-578, 2001Hun-Ka16, November 29, 2001).

C. Whether the principle of proportionality between criminal liability and punishment is violated

1.The issue of how to punish which crimes, that is, the issue of criminal sentences and its coverage, should be decided by lawmakers. Within their extensive legislative discretion and liberty, the lawmakers should consider many issues such as the nature of crime, protected interests, public's legal sentiment and criminal policy for crime prevention. Therefore, we should be careful not to find a certain criminal law unconstitutional unless it is too cruel judging from the nature of crime and the offender's criminal liability and unless it deviates from the principle of balance in penal system and from the law's original goal and function. Further, we should not easily find a specific criminal law's sentence excessively cruel on the basis of existing sentencing guideline when a special criminal law was enacted to additionally punish a certain crime due to existing criminal law's inability to prevent and eradicate crimes (18-1(A) KCCR 478, 484, 2005Hun-Ka2, April 27, 2006,).

2.Under the Article 5 (2) of Sexual Crime Act, the sexual assault during aggravated robbery is defined as the combination of aggravated robbery (Criminal Act, Article 334) and sexual assault (Criminal Act, Article 298). Thus, the sexual assault during aggravated robbery is constituted when a person breaks into a house at night or more than one person robs with dangerous weapon or a person attempted the above mentioned criminal acts and further sexually assaulted victims. The intent to commit sexual assault is often to conceal the offense of robbery and, during this process, the sexually assaulted victim's self

autonomy is seriously devastated without being able to resist under the extremely repressive condition. Given the situation, the nature of the crime, we believe, is horrible and highly accusatory. Furthermore, when the crime is committed in the house at night in front of spouse or other family members, it destroys the entire household as well as the victim's individual property and sexual autonomy. Under the circumstances, the criminal damage is much more devastating than ordinary aggravated robbery and sexual assault. Therefore, we find it necessary that lawmakers enacted a special law with the understanding of practical limitation to prevent and eradicate such a crime with ordinary punishment. Further, we acknowledge the reasonable necessity when the lawmakers, considering criminal policy and other elements, enacted rather serious sentences such as capital punishment, lifetime or minimum ten years of incarceration in addition to the criminal sentence for rape during robbery. Considering all of these, therefore, we do not find that the Article 5 (2) of Sexual Crime Act is excessively cruel in its nature compared to the nature of the crime and offender's criminal liability and thus violated the principle of balance between liability and punishment.

3.With respect to the principle of proportionality, the Article 5 (2) of Sexual Crime Act raises the issue of the excessive restriction of judge's sentencing discretion because it prevents the possibility of suspension of sentence by prescribing the minimum ten years of incarceration.

Sentencing guideline needs to be broad enough that judge may apply aggravating and mitigating factors in sentences unless the judge's discretion is overbroad. Yet, we cannot find a narrowly tailored sentencing law unconstitutional if the law shows substantial reasonability under the principle of proportionality between protected legal interest and the nature of crime even though the lawmakers narrowed the sentencing guideline by law as predicting possible factors to be considered for sentencing (7-1 KCCR, 539, 553, 93Hun-Ba40, April 20, 1995).

The Article 5 (2) of Sexual Crime Act is a legislative determination to block the possibility of the suspension of sentence for sexual assault during aggravated robbery due to the special nature of the

crime unless there is a special circumstance although it allows judge's discretion to reduce the period of incarceration. Such determination of lawmakers shows substantial reasonability. Further, even under the Article 5 (2) of Sexual Crime Act, the possibility of suspension of sentence still remains when statutory mitigating factors and discretionary mitigating factors are combined. The Article 5 (2) of Sexual Crime Act prohibits the possibility of suspension of sentence if only discretionary mitigating factors are shown without statutory mitigating factors. This results in increasing the minimum sentence for the crime, and yet it does not necessarily infringe upon the judge's sentencing power.

D. Whether the principle of equality is violated due to the lack of balance under the penal system

1.A statute is found unconstitutional if it loses balance and legitimacy under the penal system compared to the ordinary criminal punishment although it adds the criminal penalty to a certain crime with a due reason. (See21-2(B) KCCR 438, 2008Hun-Ba9, February 26, 2009)

2.It is practically impossible and not always reasonable to draw mathematical and mechanical proportion between the nature of crime and commensurate punishment. The purpose of criminal punishment is to inflict the suffering to the offenders as well as to invoke preventive measures. Yet, once the seriousness of a crime exceeds a certain degree, the perception of seriousness by the public and the commensurate punishments for preventive measures may be not much distinguishable among different crimes. It is more obvious when a crime becomes more felonious. For instance, when we compare rape and sexual assault and compare aggravated robbery and simple robbery, we know that the rape is more serious than sexual assault and the aggravated robbery than robbery. Yet, when we compare the rape during aggravated robbery and the sexual assault during aggravated robbery, we find the difference of seriousness between two crimes minimized because each crime involves highly offensive natures. In other words, the more felonious crimes become, the more

minimized the difference of the seriousness of crimes.

3.In general, sexual assault involves less felonious offenses because it, in its nature, includes any act, excluding sexual penetration, committed to invoke sexual humiliation and repugnance of victims for offender's sexual desire. Sexual assault includes broad offenses and usually involves less offensive and felonious acts compared to rape. Yet, it may also involve much more serious and offensive acts than rape such as sadistic rape of inserting foreign substance to a victim's sexual organ, anal sex and oral sex. Further, in practice, an ordinary sexual assault may be punished the same as or more seriously than rape by considering the motive, circumstances and the extent of infringement of the protected interests. Therefore, if we mechanically distinguish rape and sexual assault and thus, always treats sexual assault less seriously than rape, we may ironically cause the result of imbalance in penal system (13-2 KCCR 570, 579-580, 2001Hun-Ka16, November 29, 2001). Therefore, we cannot be sure that the sexual assault during aggravated robbery is less felonious than the rape during aggravated robbery. Rather, we believe that sexual assault during aggravated robbery could be punished more harshly than rape based on the concrete nature of individual offense.

4.For these reasons, we do not find that the Article 5 (2) of Sexual Crime is an arbitrary legislation without balance in penal system in prescribing the same sentence for above mentioned two crimes and therefore violates the principle of equality.

E. Sub-conclusion

Although the Article 5 (2) of Sexual Crime prescribes the capital punishment, lifetime or minimum ten years of incarceration for the sexual assault during aggravated robbery the same as the rape during aggravated robbery, it is not too excessive and cruel to violate the principle of liability. Further, it is not an arbitrary legislation which lost the balance in penal system. Therefore, we find that it does not violate the principle of equality, proportionality and the principle of human dignity and value promulgated in the Article 10 of the

Constitution.

V. Conclusion

We find 'or partial' in the Article 57 (1) of the Criminal Act is unconstitutional but the Article 5 (2) of Sexual Crime Act constitutional as stated in Holding.

VI. Dissenting Opinion of Justice Lee Dong-heub's on "or partial" of the Article 57 (1) of the Criminal Act.

Unlike the majority opinion, I do not find "or partial" in the Article 57 (1) of the Criminal Act unconstitutional and hereby provide my dissenting opinion.

A. Whether the principle of due process, presumption of innocence and bodily freedom are violated

1. The nature of pretrial detention credit and the principle of due process and presumption of innocence

(A) The majority opinion states that pretrial detention credit, in its nature, restricts the bodily freedom and therefore "or partial" in the Article 57 (1) of the Criminal Act infringes upon the bodily freedom by violating the principle of due process and the presumption of innocence when it allows the partial application of pretrial detention credit to the sentence.

Yet, it should be noted that pretrial detention is the forcible measure exceptionally made for the efficient investigation, trial proceeding and execution of sentence by restricting a person's bodily freedom. Although criminal defendants should face investigation and trial out of custody pursuant to the principle of the presumption of innocence and due process, pretrial detention is exceptionally made with a judge's warrant to allow investigation and trial while restricting a person's bodily freedom within the duration of warrant. Therefore, pretrial detention is executed as the exception to the constitutional recognized

principle of the presumption of innocence and due process and, therefore, it does not violate the principle of the presumption of innocence and due process per se.

(B) Pretrial detention, despite its nature of restriction of bodily freedom, is the inevitable forcible measure to secure a suspect or a defendant's body for the purpose of protection of societal legal interest and creation of legal effects for defendant's return to society during a criminal investigation and proceeding and, therefore, it should be differentiated from post-conviction incarceration which is the deprivation of legal interest by creating legal effects. For this reason, pretrial detention does not involve forced labor and education to reflect such legal nature and does not allow transfer of jail during the detention period without special reasons. In this regard, pretrial detention is different from the execution of sentence and therefore cannot raise legal necessity to apply its credit to the sentence. The issue of pretrial detention credit, therefore, should be discussed from the perspective of equality in terms of how much of credit to be applied under the criminal procedure. It is not related to the issue of trial out-of-custody under the principle of the presumption of innocence and the issue of guarantee of incarcerated defendant's right to defend. There is logical flaw in the argument that pretrial detention infringes the bodily freedom in its nature because, under this premises, constitutionally justified pretrial detention could infringe upon the basic rights unless its credit is wholly applied. The argument, therefore, leads to the conclusion that whole pretrial detention credit may restore infringed basic rights which is build on the confusion and misunderstanding of the nature of pretrial detention and the application of its credit.

2. The application of pretrial detention credit to sentence and its basis

Pretrial detention, although not the execution of sentence, is similar to the execution of sentence in terms of deprivation of liberty and therefore needs to be applied to the sentence pursuant to the equality of criminal justice originated from the principle of due process.

The majority opinion finds that pretrial detention should be compensated properly pursuant to the principle of the presumption of innocence despite its inevitable nature and further it should be wholly applied because a defendant who was found not guilty is monetarily compensated. I disagree. The defendant who was found not guilty is wholly compensated because the detained period cannot be justified and it is treated as sacrifice. Yet, the defendant who was found guilty is different. Further, as discussed above, any suffering incurred by pretrial detention cannot be regarded as sacrifice because it does not infringe upon the bodily freedom as it is executed by law with proper procedure under the Constitution. Therefore, there is no basis for the argument that the entire pretrial detention credit should be applied. The basis for pretrial detention credit is post-remedial measure based on the principle of justice for the bodily suffering incurred on pretrial defendant in order to perfect legal proceeding.

3. Legislative history and trial practice with respect to the application of pretrial detention credit

Basically, the application of pretrial detention credit remains within the legislative power of lawmakers because it is related to the different perspectives regarding pretrial detention and the execution of sentence. It is also related to the issue of the delay of proceeding in connection with the efficiency of proceeding and economy of proceeding. Therefore, it should be studied by considering individual country's criminal procedure and other related issues. Pretrial detention credit may be divided into two different types: legal proceeding days which allows judge's discretion; and actual days which reflects actual days detained. It is widely known that the U.S., the U.K and Germany adopted the actual days while Korea and Japan did legal proceeding days.

Yet, among those countries which adopted legal proceeding days have different practices in actual application of pretrial detention credit due to the absence of statutory regulation regarding the calculation of credit. In general, they apply the entire actual days to the sentence and deduct the days which were caused by defendant's fault (the entire application). They may also apply only those days which are

not caused by defendant's fault while deducting the minimum necessary days for legal proceeding and the days caused by defendant's fault (the partial application). Under the Article 57 (1) of the Criminal Act, Korea practices the entire application of legal proceeding days because judge may exercises the discretion by first applying the actual days of detention to the sentence and later deducting those days caused by defendant's fault and attitude toward the proceeding. Meanwhile, Japan practices the partial application of legal proceeding days by excluding days before arraignment and trial days and only applying those days not caused by defendant's fault such as unavailability of witnesses and the motion to continue by court or prosecutor.

The majority opinion argues that major countries except Korea and Japan adopted the actual-days application of the pretrial detention credit. Yet, even those countries which adopted actual-days application still leave the exception which permits the partial application of pretrial detention credit after evaluating the defendant's demeanor after crime and other relevant factors. For instance, in the U.K, the partial or entire pretrial detention credit may be withdrawn if a frivolous appeal is filed by a defendant. Also, in Germany, a judge may withdraw the partial or entire pretrial detention credit if the judge finds the pretrial detention credit is not appropriate because of the defendant's demeanor. Likewise, even those countries which adopted actual-days application do not necessarily follow the exact actual-days application of the pretrial detention credit without any exception. Therefore, our practice is not far different from other countries which adopted actual-days application.

4. The justification of "or partial" under the Article 57 (1) of the Criminal Act.

(A) The majority opinion argues that pretrial detention is made for the inevitable purpose of investigation and criminal proceeding and therefore only the entire application of pretrial detention credit fulfils the protection of human rights while the partial application does not. I disagree because the type of application belongs to the lawmakers' discretion although pretrial detention credit should be considered from

the perspective of equality. Therefore, unless the exercise of discretion is found to be palpably unreasonable, it should not be found unconstitutional. Further, if we do not leave the possibility of partial application of pretrial detention credit, we end up treating pretrial detention the same as serving time which has different legal natures under the criminal procedure. Pretrial detention may be incurred by many different reasons: typically required days for a legal proceeding; days caused by defendant's fault; and days caused by others. Given these various reasons, if we allow applying those days caused by defendant's fault such as calling unavailable witness repeatedly only to delay the proceeding and continuing the case to settle with victim, it may be against criminal justice. Likewise, if we allow applying those days caused by defendant's abuse of system to delay the proceeding, it may be unreasonable. Therefore, the Article 57 (1) of the Criminal Act is found reasonable because it enables judge to selectively apply the pretrial detention credit based on defendant's fault in delay, defendant's demeanor, necessary required days for proceeding and process of proceeding given the mixed natures of pretrial detention. The Supreme Court of Japan, as adopting the same legal-proceeding days as Korea, held that the days for investigation and trial days should be borne by defendant and only the days exceeding these required days should be applied because there is no practical need to apply the entire pretrial detention credit to the sentence.

(B) The majority opinion says that the Article 57 (1) of the Criminal Act increases the level of infringement of bodily freedom because it allows partial pretrial detention credit and thus sets a special exception to the exception to the out-of-custody investigation embedded in the principle of the presumption of innocence. However, pretrial detention, though creating bodily confinement in its effects, bears different legal nature as forcible measure from the execution of sentence. As I discussed above, it neither violates the principle of the presumption of innocence nor the principle of due process. Further, pretrial detention credit is a correctional measure in order to promote the equality in criminal justice system and to protect human rights. Therefore, the partial application of pretrial detention credit does not necessarily aggravate the infringement of bodily freedom. The

maximum protection of bodily freedom comes from the strict practice of pretrial detention, its interpretation and application, and further from the legislative, executive and judicial endeavor to develop system. Yet, it does not come from the mechanical application of entire pretrial detention credit.

(C) The majority opinion says that it is not easy to distinguish the exact days delayed by defendant and, further, even if defendant intentionally caused the delay, partial application for that reason is nothing but to punish the defendant's legal attitude which is not punishable under criminal law.

Yet, pretrial detention credit should be considered from the perspective of criminal procedure not from whether or not there is defendant's fault. It is true because pretrial detention is a forcible measure to perfect criminal procedure different from the execution of sentence. The issue of pretrial detention credit is not to decide the type of sentence but to decide the extent of pretrial detention credit to satisfy the principle of equality under the circumstances where pretrial detention is allowed for investigation and criminal proceeding. Therefore, it is equitably reasonable to exclude those delayed days caused by defendant's fault. For this reason, the U.K and Germany allow the exclusion of the partial and the entire pretrial detention credit based on defendant's demeanor. So does Japan which adopts legal proceeding days system for the same reason.

Therefore, I do not find that "or partial" in the Article 57 (1) of the Criminal Act implies the punishment of the defendant's legal attitude.

5. Sub-conclusion

The partial or the entire application of pretrial detention credit provision prescribed in the Article 57 (1) of the Criminal Act does neither infringe on bodily freedom nor violate the constitutional principle of due process and the presumption of innocence because it bears the rationality and justification between end and means as it purports to realize the equality of criminal justice and to protect human rights.

As I discussed above, I can never accept the majority's opinion that the partial application of pretrial detention credit in the Article 57 (1) of the Criminal Act should be modified to the entire application of pretrial detention credit in order to realize the equality in criminal justice system and to protect human rights under the principle of due process and the presumption of innocence.

B. Whether the right to trial is infringed

1. The majority opinion holds that "or partial" in the Article 57 (1) of the Criminal Act infringes on defendant's right to trial and the right to appeal because it discourages defendant to appeal and to introduce favorable evidences given the apprehension of the possible deduction of pretrial detention credit. Yet, the legislative purpose of the Article 57 (1) of the Criminal Act is to achieve the equality in criminal justice system and to protect human rights not related to the right to trial because the issue of pretrial detention credit is not to decide the types of sentence but to decide the extent of pretrial detention credit from the perspective of equality under the circumstances where pretrial detention is inevitable to perfect criminal procedure such as investigation and criminal proceeding. Further, "or partial" in the Article 57 (1) of the Criminal Act is not found to prevent the defendant's right to defend, right to introduce favorable evidence for mitigating factors and the right to trial.

The right to appeal is the issue related to the Article 24 of 'Act on Special Cases concerning Expedition of Legal Proceedings', which prescribes that some of pretrial detention credit during the period of appeal may be excluded after the appeal is denied by the reason of frivolousness. For the sake of argument, even if some of pretrial detention credit are not to be applied pursuant to "or partial" of the Article 57 (1) of the Criminal Act, it has no connection with the right to appeal because it is judge's discretionary decision based on defendant's demeanor and fault for the delay of proceeding.

2.Therefore, I do not find that "or partial" in the Article 57 (1) of the Criminal Act infringes on defendant's right to trial.

C. Whether right to equality is infringed

1.The majority opinion finds that "or partial" of the Article 57 (1) of the Criminal Act which allows judge's discretion to allow partial pretrial detention credit discriminates against defendant in custody. Given the comparison between defendant in custody and defendant out of custody with respect to the issue of discrimination, we need to refer to relevant constitutional provisions and the legislative purpose and meaning of the statute at issue (8-2 KCCR, 680, 701, 96Hun-Ka18, December 26, 1996; 13-2 KCCR 714, 727-728, 99Hun-Ma494, November 29, 2001). The provision, "or partial" of the Article 57 (1) of the Criminal Act does not purport to discriminate defendant in custody with defendant out of custody because it is nothing but a regulation to apply pretrial detention credit to sentence in order to rectify the principle of equality under the circumstances where defendant should be inevitably detained for criminal procedure. Therefore, in nature, these two categories of defendants cannot be same to be compared.

2.Therefore, the majority opinion is wrong when they find that there is the discrimination between defendant in custody and defendant out of custody because they treat the naturally different two groups by regarding in the same light.

D. Conclusion

Therefore, I find that "or partial" of the Article 57 (1) of the Criminal Act does not violate the Constitution.

VII. Concurring Opinion of Justice Cho Dae-hyen regarding "or partial" of the Article 57 (1) of the Criminal Act

A state owes the duty to guarantee the fundamental and inviolable human rights of citizens (the Constitution, Article 10). The freedom and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare and even when such restriction is imposed, no essential aspect

of the freedom or right shall be violated. (the Constitution, Article 37 (2)). Especially, bodily freedom is the basis to guarantee the basic rights and human dignity and for that reason it is the most important basic right and should be protected in a stricter manner (the Constitution, Article 12).

If a law does not guarantee a full pretrial credit while restricting a citizen's bodily freedom in exercising a state's power to punish criminals, the law does not comply with the Constitution, Article 37 (2), which prescribes a necessary and minimal amount of basic rights shall be restricted. The instant "pretrial credit provision" does not provide any legal basis to allow partial pretrial credit with a judge's discretion and therefore violates the Constitution, Article 37 (2).

Under the constitutional principle, when a state detains a criminal suspect and restricts his or her bodily freedom in exercising the state's power to punish criminals, the entire or partial pretrial detention credit should be applied to the sentence (the Article 57 of the Criminal Act) and, the state, in case of verdict of not guilty, should award restitution for pretrial detention period (The Criminal Compensation Act, Article 1). Such system allows applying the pretrial detention credit to sentence and awarding restitution in order to minimize the infringement of basic rights even in case of detention of criminal suspect in exercising state's power to punish criminals.

Therefore, if a law does not guarantee a full pretrial credit while restricting a citizen's bodily freedom in exercising a state's power to punish criminals, the law does not comply with the Constitution, Article 37 (2), which prescribes a necessary and minimal amount of basic rights shall be restricted. Indeed, pretrial detention credit, which is aimed to minimize the infringement of bodily freedom, may be restricted by law pursuant to the Article 37 (2) of the Constitution. Yet, even in this case, the restriction should be for more important value than bodily freedom at a minimum amount.

However, the partial pretrial credit in the Article 57 of the Constitution does not provide any legal basis to allow partial pretrial credit with a judge's discretion and therefore violates the Constitution, Article 37 (2).

VIII. Dissenting Opinion of Justice Kim Jong-dae, Justice Mok Young-joon regarding the Article 5 (2) of the Sexual Crime Act

We disagree with the majority opinion on the constitutionality of the Article 5 (2) of the Sexual Crime Act and hereby find it unconstitutional.

A. Limit of punishment

The Constitution, Article 10 promulgates that 'all citizens shall be assured of human worth and dignity and have the right to pursue happiness. It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of citizens'. Therefore, punishment as state action should be exercised within the scope of protection of human dignity and value. For this reason, punishment is bound to the principle of liability which emphasizes 'no punishment without liability' and further it should be exercised as the last and supplementary resort without exceeding actual effectuation.

Although criminal penalty belongs to legislative discretion, such legislative discretion may not infringe the central contents of basic rights as exceeding such limits above explained. Therefore, when a criminal penalty is legislated, it should be done to materialize the principle of the rule of law by following the internal limit prescribed by the Article 10 of the Constitution as well as by following the rule against excessive restriction in the Article 37 (2) of the Constitution. Further, it should comply with the principle of substantial equality under the Article 11 of the Constitution by conforming to the strict proportionality between crime and liability. This is also true when severe punishment is asked under special criminal law (18-1(A) KCCR 491, 497, 2006Hun-Ka5, April 27, 2006).

B. Legitimacy of penal system and violation of the principle of equality

1.Criminal penalty provisions in the Criminal Act reflects unified value system on each protected legal interest which should be

respected unless there is the special change of circumstances occurs. Under the Criminal Act, rape is sentenced to minimum three years of imprisonment (the Criminal Act 297) while sexual harassment to maximum ten years of imprisonment or maximum 15,000,000 won of fine (the Criminal Act 298). The Criminal Act sets the maximum sentence of rape much higher than that of sexual harassment based on the finding that the illegality and accusatory level of rape is much higher than that of sexual harassment according to ordinary citizens' legal sentiment and the criminal justice policy. Yet, the Article 5 (2) of the Criminal Act sets the same criminal penalty for the rape during aggravated robbery and the sexual harassment during aggravated robbery only because aggravated robbery is combined with rape and sexual harassment each of which has different criminal nature and circumstances. Finally, the minimum sentence for each crime is ten years of imprisonment which is excessively high.

2.The Article 5 (2) of Sexual Crime Act sets the criminal penalty of 'capital punishment, lifetime or 10 years of minimum incarceration' for 'sexual assault' during aggravate robbery. Therefore, if a person breaks into a room, house, building, ship or airplane at night or with dangerous weapons or more than one person rob and further sexually assault victim, it is punishable with capital punishment, lifetime or 10 years of minimum incarceration even if the aggravated robbery was an attempt. Meanwhile, the Sexual Crime Act, Article 6 (2) sets minimum three years of imprisonment for the sexual harassment by more than one person or a person with dangerous weapon.

As we observed above, the criminal penalty varies drastically depending on the intent to rob in case of the sexual harassment by more than one person or a person with dangerous weapon. Absent intent to rob, the above mentioned crime may be punished with the suspension of sentence under the statute even without judge's discretion. However, once the intent to rob is found, the same crime may be punished with 'capital punishment or lifetime' even with judge's discretion after statutory consideration of mitigating factors.

The discrepancy of criminal penalty between above mentioned two crimes is gross although they are of the similar natures of crimes. The difference is even slighter when the attempted robbery is involved.

Therefore, the discrepancy of criminal penalty between two crimes is unreasonable.

3.The majority opinion asserts that sexual assault may involve much more serious and offensive acts than rape and ordinary sexual assault may be punished same as or more seriously than rape after considering the motive, circumstances and the extent of infringement of the protected interests. Therefore, the majority opinion finds that the Article 5 (2) of Sexual Crime has the reasonable basis when lawmakers set the same sentence for above mentioned two crimes.

However, the range of a criminal penalty should be set based on the general nature of each crime and its protected interest and, subsequently, judge considers sentencing after reviewing the criminal nature and circumstances and other factors within this range. Therefore, whether a criminal punishment is excessive under the criminal justice system depends on whether the range of sentencing may include the various types of a crime. Additionally, whether the sentence for a certain crime is against the principle of equality by being excessively higher than other crimes depends on the consideration of the general nature of crime and protected interests.

Under the criminal law, sexual harassment is overbroad enough to include various types of a crime from no less felonious acts than rape (anal sex, oral sex and putting foreign substance into victim's sexual organ) to such petty offenses that infringes victim's sexual autonomy at a minimum capacity. To constitute rape, a certain amount of violence and threat is required and yet sexual harassment may be constituted by harassment after violence as well as violence itself as harassment. In the latter case, the violence does not necessarily amounts to overwhelm the victim's resistance but could simply be against victim's will regardless of the level of violence (The Supreme Court, 2001Do2417, April 26, 2002). This wide variety of sexual assault yields to the wide range of sentence for the crime. Criminal penalty for sexual harassment is maximum ten years of imprisonment or 15,000,000 won of fine while that for rape is minimum three years of imprisonment. This shows that sexual harassment may include no less felonious acts than rape (minimum three years and maximum ten years acknowledge the sexual harassment could be as serious as rape)

and yet it may include petty offenses which may be punished with fine.

As a simple offensive physical contact may constitute sexual harassment, sexual harassment during aggravated robbery may be constituted under the Article 5 (2) of the Criminal Act, if the simple offensive physical contact is combined with aggravated robbery. Yet, we do not believe that petty sexual harassment during aggravated robbery should be regulated with the same criminal penalty with rape.

4.It is neither legislatively impossible nor difficult to regulate the rape during aggravated robbery and sexual harassment during aggravated robbery differently. In reality, rape by more than one person or one person with dangerous weapon is punished with lifetime or minimum five years of imprisonment under the Article 6 (1) of the Criminal Act while sexual assault in the above mentioned manner with the minimum three years of imprisonment and thereby lawmakers regulate rape and sexual assault differently.

5.The Article 5 (2) of the Sexual Crime Act is against the principle of substantial equality of 'the equal are to be treated equally and the unequal are unequally' missing the proportionality under the penal system.

C. Sub-conclusion

The Article 5 (2) of the Sexual Crime Act, absent proportionality between the nature of crime and liability, is against just penal system and further against the principle of substantial equality guaranteed by the Constitution, Article 11.

Justice Lee Kang-kook (Presiding Justice), Lee Kong-hyun, Cho Dae-hyen, Kim Hee-ok, Kim Jong-dae, Min Hyeong-ki, Lee Dong-heub, Mok Young-joon, Song Doo-hwan