Whether an order to attend a course may be concurrently imposed on or after October 8, 2011, when a sentence is imposed only on or after a person who commits a sexual crime, which was amended on or after April 7, 2011 (affirmative)

Article 16(2) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended and promulgated by Act No. 10258, Apr. 15, 2010) provides that “where a court suspends the execution of a sentence against a sex offender, it may order probation, community service, or attend a lecture for a certain period within the period of probation, or order him/her to provide community service or attend a lecture within the period of probation.” However, Article 16(2) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 10567, Dec. 18, 2012; hereinafter referred to as “Special Cases concerning the Punishment, etc.”) provides that “If a sex offender is convicted of a sex offender, the court may order him/her to attend a lecture for a certain period of time or order him/her to attend a lecture within the period of probation.” Article 16(2) of the former Act provides that “after the first enforcement of an order to attend a sexual crime, this Act may be enforced only after the amendment.”

Article 16(2) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 10567, Apr. 7, 201); Article 16(2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 11556, Dec. 18, 201); Article 16(1) and Article 16(2) of the Addenda (Amended by Act No. 1056, Apr. 7, 201)

Defendant

Defendant

Law Firm International Law Firm, Attorneys Han Won-woo et al.

Busan High Court Decision 2012No509 decided January 16, 2013

The judgment below is reversed, and the case is remanded to Busan High Court.

1. We examine the grounds of appeal.

Examining the reasoning of the judgment below and the evidence duly admitted by the court below, the court below is just in finding the defendant guilty of the facts charged of this case on the grounds as stated in its reasoning, and there is no violation of the principle of free evaluation of evidence against logical and empirical rules.

2. The decision shall be made ex officio;

A. Article 16(2) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended and promulgated by Act No. 10258, Apr. 15, 2010; hereinafter “former Special Cases Concerning Special Cases”) stipulates that “where a court suspends the execution of a sentence against a person who has committed a sexual crime, it may order probation or order community service or attending a lecture for a certain period within the period of probation, or order probation or attending a lecture within the period of probation” may be imposed only within the period of probation.

However, Article 16(2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Special Cases Concerning the Punishment, etc. of Sexual Crimes”) amended by Act No. 10567 of April 7, 201 provides that “In cases where the court pronounces a conviction (excluding the postponement of a sentence), an order to attend a lecture or order to complete a sexual assault treatment program may be issued concurrently for a period not exceeding 300 hours.” Paragraph (1) of the Addenda provides that “This Act shall enter into force six months after its promulgation.” Article 16(2) provides that “The amended provisions of Article 16 shall apply to a person who first commits a sexual crime after this Act enters into force, from the person who first commits a sexual crime.” Thus, the court may concurrently order the person to attend a lecture, even if it pronounces only a person who commits a sexual crime after October 8, 2011 when the Act on Special Cases Concerning the Punishment,

B. As to the instant case, since the date of the instant crime is September 26, 201, which was before the enforcement of Article 16(2) of the Act on Special Cases Concerning the Amendment, it is impossible to impose an order to attend a school where a sentence is imposed. Nevertheless, the judgment of the court below imposing an order to attend a school together with the Defendant, which erred by misapprehending the legal principles on the scope of application under Article 2 of the Addenda to the Act on Special Cases Concerning

Meanwhile, an order to attend a lecture under Article 16 of the former Special Act is an incidental disposition to be declared simultaneously with a judgment of a sexual crime case. If the whole or part of the order to attend a lecture is unlawful, the part of the order shall be reversed even if there is no error in the remaining

3. 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.

Justices Kim Shin (Presiding Justice)