(영문) 대법원 2019.10.31. 선고 2019도12561 판결

For the reasons indicated in its holding, the lower court sentenced the Defendant to a judgment that disclosed and notify the information on the Defendant via an information and communications network for three years. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. In this case where a minor sentence has been imposed against the defendant, the argument that the punishment is too unreasonable is not a legitimate ground for

2. Ex officio determine an employment restriction order for welfare facilities for disabled persons;

(a) Progress to amend regulations on employment restriction orders;

1) Article 59-3 (1) of the former Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018) provides that a person who was sentenced to a sexual crime under Article 2(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes or a sex offense against children and juveniles under Article 2 subparag. 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter referred to as “sexual crime”) is unable to operate a welfare facility for persons with disabilities, or to provide employment or actual labor at welfare facilities for persons with disabilities for 10 years from the date on which the execution of such punishment or medical treatment and custody is completed or suspended or exempted (hereinafter referred to as “previous provision”).

2) According to Article 59-3(1) of the Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018; hereinafter “amended Act”), the Constitutional Court ruled that the previous provision imposing the restriction on employment of 10 years uniformly on the basis of the records of sexual crime violates the freedom of occupation (see Constitutional Court Order 2015Hun-Ma915, Jul. 28, 2016). Accordingly, the court recognized the exception of employment restriction in cases where a sentence of imprisonment or medical treatment and custody is imposed on a sex offender, when the court declares the sentence of imprisonment or medical treatment and custody for a certain period from the date when the execution of all or part of the sentence or medical treatment and custody is completed or suspended or exempted (hereinafter “employment restriction period”), or when it declares the order not to provide employment or actual labor to a facility for the disabled (hereinafter “employment restriction order”). However, the court held that the employment restriction order should not be imposed concurrently with a sex offense case.

3) Meanwhile, the Addenda of the amended Act concerning the enforcement date, scope of application, etc. shall be as follows. The amended Act shall enter into force six months after the date of its promulgation (Article 1). The amended Act shall also apply to persons who have committed sex offenses before the amended Act enters into force and have not been finally determined (Article 2). Notwithstanding the previous provisions, the period of restriction on employment of persons subject to employment restrictions pursuant to the previous provisions shall be five years, three years, and one year according to the scope of the finalized principal sentence (in cases of persons who have been sentenced to imprisonment, imprisonment, or imprisonment without prison labor, or medical treatment and custody for more than 03 years and on whom the final decision has become final and conclusive: Five years after the completion, suspension, or exemption of the execution (hereinafter the same shall apply) of all or part of the relevant punishment or medical treatment and custody, and three years after the sentence of imprisonment, imprisonment without prison labor, or medical treatment and custody for not more than three years or three years after the final and conclusive sentence has become final and conclusive, but where the previous provisions are favorable to apply, a person subject to welfare facilities for disabled persons (Article 3(1).

(b) Fact of recognition;

According to the evidence duly admitted by the court below, the following facts are revealed:

1) The summary of the facts charged in the instant case is that the Defendant, from January 18, 2012 to June 10, 2018, took photographs of the body of the victims who may cause sexual humiliation or humiliation against their will or provided the pictures.

2) On May 3, 2019, before the enforcement of the amended Act, the first instance court sentenced the Defendant a two-year and six-month imprisonment with prison labor for the crimes listed in Articles 1 and 2 as indicated in the judgment of the first instance court, and sentenced the Defendant to two-year and six-month imprisonment with prison labor for the crimes listed in Articles 1 and 3 as indicated in the judgment of the first instance court, and to three-year disclosure and notification of information using the information and communication network to the Defendant, and ordered the completion of sexual assault treatment programs for 80 hours, and issued an employment restriction order to the child and juvenile-related institutions, etc. for five years.

3) The lower court, in accordance with Article 2 of the Addenda to the amended Act, and the amended provisions, on August 22, 2019, following the enforcement of the amended Act.

The judgment of the court of first instance is reversed ex officio on the grounds that the defendant should be sentenced to an employment restriction order at the same time as the judgment is sentenced, and the defendant is found guilty of the charges of this case, and the defendant is sentenced to imprisonment with prison labor for the crimes of Articles 1 and 2, 1 and 6 months and 3 in the judgment of the court of first instance, and the disclosure and notification of information using the information and communication network to the defendant and the notification of information for the crimes of Article 3 in the judgment of the court of first instance, and the defendant is ordered to complete the sexual assault treatment program for 80 hours,

C. Determination

1) With respect to a case on which only the defendant appealed an appeal, no sentence more severe than that of the judgment of the court of first instance (Article 368 of the Criminal Procedure Act). Determination as to whether a sentence has been changed disadvantageous to the defendant should be made based on the severity of the punishment under the Criminal Act, but rather on the basis of whether it is disadvantageous to the defendant in light of the entire text (see, e.g., Supreme Court Decision 2012Do8736, Sept. 27, 2012). Meanwhile, an employment restriction order prescribed by the amended provisions is a type of treatment in the society against the criminal, not a punishment itself, but a security measure, but a practical restriction on freedom of choosing occupation is imposed by preventing the operation of welfare facilities for the disabled or the provision of employment or actual labor at welfare facilities for the disabled.

2) According to the above provisions of the amended Act and the supplementary provisions of the amended Act, if the first instance court’s judgment that issued an employment restriction order to children and juveniles-related institutions, etc. for five hours and the first instance judgment becomes final and conclusive as it is because the special provisions of Article 4 and each subparagraph of Article 3(1) of the Addenda of the amended Act apply, the employment restriction period for welfare facilities for disabled persons shall be three years, as the special provisions of Article 3(1) of the Addenda of the amended Act apply to the case where the public prosecutor and the defendant did not appeal against the crime of Articles 1 and 2 of the first instance judgment against the defendant prior to the enforcement of the amended Act.

Nevertheless, in this case, the lower court sentenced the Defendant who committed a sex offense under Article 2 of the Addenda to the amended Act after the enforcement date of the amended Act, the lower court sentenced the Defendant who committed a sex offense under Articles 1 and 2 as stated in the first instance court’s ruling to imprisonment with prison labor for one year and six months, and the third crime as stated in the first instance court’s ruling, and sentenced the Defendant to two months of imprisonment with prison labor and confiscation, and to three years of disclosure and notification of information using the information and communications network for the Defendant, and issued an employment restriction order for five years with respect to child and juvenile-related institutions, etc. for five years as well as the employment restriction order for the disabled for five years in comparison with the period in which the first instance judgment is maintained. Accordingly, in so determining, the lower court erred and adversely affected the conclusion of the judgment by misapprehending the legal doctrine on the principle of prohibition of disadvantageous alteration, thereby affecting the conclusion of the judgment.

3. Scope of reversal

For the foregoing reasons, the part of the lower judgment regarding the employment restriction order for welfare facilities for the disabled should be reversed. Since the employment restriction order is an incidental disposition that the court issues simultaneously with a judgment on a certain sex offense case, the remaining part of the Defendant case shall be reversed

4. Conclusion

Therefore, the lower judgment is entirely reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.