[1] In a case where the enforcement of a sentence is suspended to a person who committed a specific crime under the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, whether the order to attach an electronic tracking device may be issued only when a probation order is issued (affirmative)

[2] The case affirming "special appeal" in the original judgment and the judgment of the first instance that ordered the defendant who committed a sexual crime to attach an electronic tracking device without ordering the defendant to be put on probation while suspending the execution of a punishment

[1] Article 28(1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders provides that "the court may order a person who has committed a specific crime to be put on probation while suspending the execution of punishment, to attach an electronic device for a fixed period not exceeding the period of probation." Article 9(4)4 of the same Act provides that "the court shall dismiss a request for an attachment order by judgment when it declares the suspension of sentence or the suspension of execution (excluding where the court orders the attachment of an electronic device pursuant to Article 28(1)) with respect to the specific crime case," and Article 12(1) of the same Act provides that "the attachment order shall be executed by a probation officer under the direction of a public prosecutor." Thus, the court may order the person who has committed a specific crime to attach an electronic tracking device only when it is subject to probation while suspending the execution of punishment."

[2] The case affirming the original judgment and the part of the first instance judgment regarding the attachment order in accordance with the proviso of Article 446 subparagraph 1 of the Criminal Procedure Act and dismissing the prosecutor's request for the attachment order on the ground that ordering the defendant who committed a sexual crime to attach an electronic tracking device without ordering the defendant to be put on probation while suspending the execution of his/her punishment, constitutes a violation of statutes and constitutes a disadvantageous case to the person who requested

[1] Articles 9(4)4, 12(1), and 28(1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders / [2] Article 298 of the Criminal Act, Article 8-2(3) of the former Act on the Punishment, etc. of Sexual Crimes (Amended by Act No. 10258, Apr. 15, 2010; Article 7(3) of the current Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes); Articles 9(4)4, 12(1), and 28(1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders; Articles 41 and 446 subparag. 1 proviso of the Criminal Procedure Act

[1] Supreme Court Decision 2006O1 Decided April 14, 2006 Supreme Court Decision 2009O1 Decided January 28, 2010

Defendant

Prosecutor General;

Seoul High Court Decision 2010No1783, 2010 Jeonno109 decided August 20, 2010

The part of the judgment of the court of first instance regarding the attachment order case shall be reversed. The request for the attachment order of this case shall be dismissed.

Reasons for an extraordinary appeal shall be examined.

1. The record reveals the following facts.

A. The first instance court sentenced the Defendant’s case of violation of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (a minor rape, etc.) and the attachment order case of this case to three years of suspended execution of imprisonment for the Defendant’s case, and ordered the person who requested the attachment order to attach an electronic tracking device for three years. The first instance court ordered the person who requested the attachment order to attach an electronic tracking device for three years, and imposed the person who requested the attachment order as stated in the attached

B. For reasons indicated in its reasoning, the lower court dismissed the prosecutor’s appeal regarding the part on the Defendant case in the first instance judgment, reversed the part on the attachment order case, ordered the person who requested the attachment order to attach a location tracking electronic device for six years, and imposed the matters to be observed on the person who requested the attachment order as stated in the [Attachment] of the judgment below

2. However, Article 28(1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders provides, “When a court orders a person who has committed a specific crime to be put on probation while suspending the execution of punishment, it may order the person to wear an electronic device for a fixed period not exceeding the period of probation.” Article 9(4)4 provides, “When the court declares the suspension of sentence or the suspension of execution (excluding where the order to attach an electronic device is issued pursuant to Article 28(1)), the court shall dismiss the request for an attachment order by judgment when it declares the suspension of sentence or the suspension of execution with respect to the specific crime case.” Article 12(1) provides, “The attachment order shall be executed by a probation officer under the direction of a public prosecutor.”

According to the above law, only when the court orders the person who committed a specific crime to be put on probation while suspending the execution of punishment, the court may order the person who committed the specific crime to attach an electronic device.

Nevertheless, inasmuch as the original judgment and the first instance judgment ordering the Defendant to attach an electronic device without ordering the Defendant to be put on probation while suspending the execution of a sentence, it constitutes a violation of statutes and thus, is disadvantageous to the person who requested the attachment order, and thus, the original judgment and the first instance judgment reverses the part of the attachment order case in accordance with the proviso of Article 446 subparagraph 1 of the Criminal Procedure Act

3. The summary of the facts leading to the request for the attachment order of this case is that "the victim under the age of 13 is forced by indecent act twice, and the victim is followed by several times, and the sexual desire of this case is recognized as a sexual crime and there is a risk of recidivism, such as complying with female minors and resolving the physical part of the case." Thus, the part of the judgment of the court of first instance regarding the attachment order of this case shall be reversed, and the request for the attachment order of this case shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)