[1] Whether a crime under Article 8-2 (5) of the former Act on the Punishment of Sexual Crimes and Protection of Victims Thereof constitutes a crime subject to victim's complaint or a crime subject to victim's complaint (negative)

[2] The case holding that where all or part of the disclosure order under the Act on the Protection of Children and Juveniles against Sexual Abuse is unlawful, the part of the defendant's case should be reversed

[3] The case holding that where the judgment of the court below against a prosecuted case against a child or juvenile is reversed illegally, the case holding that the request for attachment order should also be reversed concurrently

[1] Article 15 of the former Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (amended by Act No. 10258, Apr. 15, 2010; hereinafter “former Sexual Exposure Act”) does not stipulate the crimes under Article 8-2(5) of the former Sexual Exposure Act as the crimes subject to a victim’s complaint. Article 16 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10260, Apr. 15, 2010) provides only the crimes under Article 11(1) of the former Act as the crimes subject to a victim’s complaint. It is reasonable to interpret the crimes under Article 8-2(5) of the former Sexual Exposure Act as the crimes subject to a victim’s non-prosecution complaint. According to the above provisions, the crime under Article 8-2(5) of the former Sexual Exposure Act is not an offense subject to a victim’s complaint or an offense subject to a victim’s complaint.

[2] The case holding that the disclosure order under Article 38 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse is an incidental disposition that declares a sex offense case against a child or juvenile simultaneously with the judgment, and where the whole or part of the disclosure order is unlawful, the part of the order should be reversed even without any error in the remaining part of the defendant case

[3] Where the defendant of a sexual crime against a child or juvenile filed an appeal only against the accused case without filing a final appeal against an order to attach an electronic device, the case holding that the court below's judgment should also be reversed by examining the case in light of the fact that Article 9 (8) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter "Electronic Monitoring Act") provides that a final appeal is filed with respect to a request to attach an electronic device, and Article 9 (5) of the Electronic Monitoring Act provides that the judgment of the court below shall be rendered concurrently with the judgment of the specific crime case, and Articles 9 (4) 3 and 4, and 28 (1) of the Electronic Monitoring Act provide that where the defendant of the sexual crime against the child or juvenile is sentenced to a fine or a suspended sentence or suspended execution with respect to the specific crime case, the request to attach an electronic device shall be dismissed: Provided, That when the defendant is ordered to attach an electronic device while executing the sentence against the specific crime offender, it shall be ordered to attach an electronic device within a fixed period of probation, etc.

[1] Articles 8-2(5) (see current Article 7(5) and 15 (see current Article 15 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes) of the former Act on the Punishment, etc. of Sexual Crimes and Protection of Victims Thereof (Amended by Act No. 10258, Apr. 15, 2010); Article 16 of the former Act on the Protection, etc. of Children and Juveniles against Sexual Crimes (Amended by Act No. 10260, Apr. 15, 2010) / [2] Article 38(1) of the Act on the Protection, etc. of Children and Juveniles against Sexual Abuse / [3] Article 9(1), (4)3, 4, (5), (8), and 28(1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders

Defendant

Defendant and the respondent for attachment order

Attorney Kim Sung-jin

Seoul High Court Decision 2010No3100, 2010 Jeonno210 decided December 31, 2010

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

1. Determination of the accused case

A. Judgment on the grounds of appeal

1) As to the misapprehension of legal principles as to the crime of non-compliance

In the provisions of Article 15 of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (amended by Act No. 10258, Apr. 15, 2010; hereinafter “former Act on the Punishment, etc. of Sexual Crimes”), the crimes under Article 8-2 (5) of the same Act are not defined as the crimes subject to a complaint under Article 8-2 (5) of the same Act. The crimes under Article 16 of the former Act on the Protection of Children and Juveniles from Sexual Abuse (amended by Act No. 10260, Apr. 15, 2010; hereinafter “former Act”) are not the crimes subject to a complaint under Article 11 (1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (amended by Act No. 10258, Apr. 15, 2010; hereinafter “former Act”). The crimes are not the crimes subject to a complaint under Article 8-2 (5) of the former Act.

Therefore, it is just that the court below did not apply Article 16 of the former Act on the Protection of Children and Juveniles against the premise that each crime listed in paragraph (1) of the charge under Article 8-2 (5) of the former Act was committed with respect to each crime under Article 8-2 (5) of the Act on the Protection of Children and Juveniles against Sexual Abuse. In so doing, the court below did not err by misapprehending the legal principles as to

2) On the issue of unfair sentencing

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 ground of unfair sentencing is allowed. Thus, in this case where a minor sentence has been imposed against the defendant, this part of the argument to the effect that the amount of punishment is unreasonable

B. Ex officio determination

A penal provision shall be strictly interpreted and applied in accordance with the language and text, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. However, a teleological interpretation in light of the legislative intent, purpose, legislative history, etc. of the law shall not be excluded in the interpretation of the penal provision unless it goes beyond the ordinary meaning of the text of the law (see Supreme Court en banc Decision 2001Do2819, Feb. 21, 2002, etc.).

Article 3(1) of the former Act on the Protection of Children and Juveniles from Sexual Abuse (amended by Act No. 9765, Jun. 9, 2009; hereinafter “former Act on the Protection of Children and Juveniles from Sexual Abuse”) provides for an order for disclosure of personal information under the former Act on the Protection of Children and Juveniles from Sexual Abuse (amended by Act No. 9765); Article 3(2) of the same Act provides for an exception to Article 3(1) of the former Act on the Protection of Children and Juveniles from Sexual Abuse (amended by Act No. 10391, Jul. 23, 2010; hereinafter “The Minister of Gender Equality and Family, notwithstanding paragraph (1), provides for an order for disclosure of personal information under the former Act on the Protection of Children and Juveniles from Sexual Abuse (amended by Act No. 7801; hereinafter “Act on the Protection of Juveniles from Sexual Abuse”); Articles 22 through 24(1) of the Act on the Protection of Juveniles from Sexual Abuse (including a person who was ordered by the National Youth Commission) to disclose Act).

Article 3 (4) of the Addenda to the above Act and Article 3 (4) of the Addenda to the Act on the Protection of Juveniles against Sexual Abuse apply retroactively to a sex offender who was subject to access to personal information under the former Act on the Protection of Juveniles against Sexual Abuse. Since the above access system alone is difficult to understand information about sex offenders against children and juveniles, the legislative intent of preventing sex offenses against children and juveniles by disclosing personal information about the above access subject is to be made, Article 3 (4) of the Addenda to the above Act is to be applied to the general public, "a person who has not yet been determined by the final judgment from among those who were subject to access or access to personal information by committing a crime (violation) prescribed by the Act on the Protection of Juveniles against Sexual Abuse, Act No. 7801 or Act No. 8634, the Act on the Protection of Juveniles against Sexual Abuse, which is not a violation of the former Act on the Protection of Juveniles against Sexual Abuse, and thus, Article 38 (4) of the Addenda to the former Act on the Protection of Sexual Abuse shall be applied.

However, each of the crimes described in paragraph (1) of the facts charged by the Defendant constitutes a sexual crime subject to an order to disclose personal information under Article 37 of the former Act on the Protection of Juveniles against Sexual Abuse (wholly amended by Act No. 8634, Aug. 3, 2007) and constitutes a sexual crime subject to an order to disclose information under Article 2 subparagraph 3 of the same Act, even if public prosecution was instituted due to a violation of the former Sexual Exposure Act, it shall be deemed as subject to an order to disclose personal information

Nevertheless, the lower court determined that each of the crimes listed in paragraph (1) of the facts charged by the Defendant is not subject to an order to disclose personal information, but subject to an order to access personal information already abolished under the former Child and Juvenile Protection Act. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of application under Article 3 (4) of the Addenda to the above case,

Therefore, the part of the judgment of the court below regarding an order for perusal cannot be reversed, and an order for disclosure under Article 38(1) of the revised Child and Juvenile Protection Act is an incidental disposition that is sentenced simultaneously with a judgment of a sex offense case against a child or juvenile, and where the whole or part of the order for disclosure is unlawful, the part of the judgment of the court below shall be reversed in its entirety, even if

2. Judgment on the case of a request for attachment order

As long as the defendant filed an appeal against the accused case, it is deemed that an appeal is filed with respect to the case of the claim for attachment order under Article 9(8) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”). Although the request for attachment order does not state the grounds therefor in the petition of appeal and the appellate brief does not contain any grounds therefor, the judgment of the court below regarding the request for attachment order must be sentenced simultaneously with the judgment of the specific crime case. Articles 9(5) and 9(4)3 and 4 of the Electronic Monitoring Act and Article 28(1) of the Electronic Monitoring Act provide that the judgment of the court below should be dismissed when imposing a fine, suspending the sentence or suspending the execution of a punishment, and when issuing a probation order with respect to the person who has committed a specific crime, the court below should also dismiss the request for attachment order within the scope of probation period, in light of the fact that the court below's order to attach an electronic device can be revoked at the same time without examining the judgment of the court below.

3. 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.

Justices Ahn Dai-hee (Presiding Justice)