Whether the provision of the lower limit of the electronic device attachment period stipulated in the proviso of Article 9(1) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders is retroactively applied to a specific crime committed against a person under the age of 19 years prior to the enforcement of the same Act (negative)

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Article 5(1)4 and 5 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders; Article 9(1) of the Addenda (Act No. 11558, Dec. 18, 2012); Article 2(2) of the former Act on the Monitoring, etc. of Electronic Monitoring, etc. of Specific Criminal Offenders (Amended by Act No. 11558, Dec. 18, 2012); Articles 5(1)4 and 9(1) of the former Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (Amended by Act No. 11558, Dec. 18, 2012)

Supreme Court Decision 2013Do6220, 2013 Jeondo122 Decided July 25, 2013 (Gong2013Ha, 1645), Supreme Court Decision 2013Do620, 2013 Jeondo124 Decided July 26, 2013

Defendant and the respondent for attachment order

Defendant and the respondent for attachment order

Attorney Kim Hyun-soo

Busan High Court Decision 2013No124, 2013No14 decided May 9, 2013

The part of the judgment below regarding the claim for attachment order is reversed, and that part of the case is remanded to Busan High Court. The appeal against the prosecuted case is dismissed.

1. Judgment on the grounds of appeal

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the court below’s finding the Defendant and the person requesting an attachment order (hereinafter “Defendant”) guilty of all the charges of this case is justified and acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles or by exceeding the bounds of

Meanwhile, the Defendant alleged that he committed the instant crime in the state of mental disorder. However, such assertion is not alleged as the grounds for appeal, and it is not alleged that the Defendant was in the state of mental disorder at the time of each of the instant crimes, even considering the record and review, and thus, the allegation in the grounds of appeal on this point is without merit.

In addition, according to the records, even if the first instance court received a certificate of intention to a participatory trial, the defendant did not submit a document stating whether he/she wants a participatory trial within the statutory period, and if the defendant did not submit it, it shall be deemed that he/she does not want a participatory trial. Therefore, the first instance court's judgment against the defendant

In addition, 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. Thus, in this case where a more minor sentence has been imposed on the defendant, the argument that the amount of punishment is unreasonable

2. Ex officio determination

According to the reasoning of the judgment below, Article 9(1)2 of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders provides that "where a specific crime, the upper limit of statutory punishment for which is three or more years, has been committed, the period of electronic device attachment shall be at least three years but not more than 20 years," and the proviso to the same paragraph provides that "where a specific crime is committed against a person under 19 years of age, the lower limit of the period of attachment shall be increased by two times the lower limit of the period of attachment stipulated in each subparagraph of the same paragraph," and Article 2(2) of the Addenda of the aforementioned Act (Act No. 1158, Dec. 18, 2012) provides that "where a person under 19 years of age is committed against a person under 19 years of age, a request for attachment order under Article 5(1)4 of the aforesaid Act shall also apply to a sexual crime committed before the revision of the Act, the period of attachment shall be at least 5 years of age 16 years, and 25 years of age."

However, this measure by the court below is not acceptable for the following reasons.

Article 5(1) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “the Act”) provides that “where a person under 19 years of age has committed a sexual crime” (Article 4) or “where a person has a physical or mental disability” (Article 5) and the proviso to Article 9(1) provides that a person who is deemed likely to recommit a sexual crime may request an order to attach an electronic device; where a specific crime is committed against a person under 19 years of age, the lower limit of the period of attachment shall be twice the lower limit of the period of attachment under the subparagraphs of Article 9(1) of the Act on the Attachment, etc. of Electronic Monitoring, etc. of Specific Criminal Offenders, the former Act on the Attachment, etc. of Electronic Monitoring, Etc. (Article 1158 of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders) provides that “where a person under 19 years of age has committed a sex crime, the latter shall be subject to the exclusion of the lower limit of the requirements for attachment order and the period of attachment before the amendment of Article 15(6) of the Act.

Therefore, the judgment of the court below that ordered the defendant to attach an electronic device for six years on the premise that the proviso of Article 9 (1) of the Act applies to the specific crimes committed against a person under the age of 19 prior to the enforcement of the Act, is erroneous in the misapprehension of legal principles as to the application of the minimum period of attachment

3. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for attachment order is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal against the prosecuted case is dismissed. It is so decided as per Disposition by the assent

Justices Yang Chang-soo (Presiding Justice)