[1] Whether a sexual crime subject to registration under Article 32(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes is subject to an order to disclose or notify personal information under Articles 37 and 41 of the same Act, if a person who committed a sexual crime subject to registration was indicted for committing a crime before the enforcement of Article 37 or 41 of the same Act, but was not ordered to disclose or notify the information at the time of the enforcement of the order (affirmative)

[2] In a case where the defendant was prosecuted for committing a crime of special robbery, rape, or attempted rape before the enforcement of Articles 37 and 41 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the case holding that the judgment below erred in the misapprehension of legal principles on the grounds that each crime constitutes a sexual crime subject to registration under Article 32 (1) of the same Act, and thus constitutes an order to disclose and notify personal information under Article 2 (2) of the Addenda of the same Act

[1] The Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes enacted and promulgated by Act No. 10258, Apr. 15, 2010 (hereinafter “Special Act”) provides for the timing of implementation of the system with regard to the system of issuing and notifying disclosure of personal information, and does not impose any restrictions differently from the Act on the Protection of Children and Juveniles against Sexual Abuse, which provides for exceptions to the system of issuing and notifying disclosure of personal information to the crimes committed after the enforcement of the aforementioned provision. The introduction of the system of ordering disclosure and notifying of personal information to an adult sex offender is not only high rate of recidivism but also commits a sex offense against a child. Thus, the legislative intent of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, which was enacted and promulgated by Act No. 10258, is to prevent not only sex offenses against adults but also sex offenses against children and juveniles, the disclosure order of personal information and the system of notifying disclosure order of personal information, in light of Article 37(1) of the Special Act on Special Cases Concerning the Protection of Sex Offenses, etc.

[2] In a case where the Defendant was prosecuted for committing a crime of special robbery, rape, or attempted rape before April 16, 201, which was the enforcement date of Articles 37 and 41 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Special Cases Act”), the case holding that each of the above crimes constitutes a sexual crime subject to registration under Article 32(1) of the Act on Special Cases Concerning the Protection, etc. of Personal Information under Article 37 and Article 41 of the Act on Special Cases Concerning the Protection, etc. of Sexual Crimes, and thus constitutes a sexual crime subject to registration under Article 32(2) of the Act on Special Cases Concerning the Protection, etc. of Personal Information, the court below erred in the misapprehension of legal principles as to the scope of application under Article 2

[1] Articles 32(1), 37, 38, 41, and 42 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Articles 1 and 2(2) of the Addenda of the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 10260, Apr. 15, 2010); Articles 1 and 4 of the Addenda of the Act on the Protection of Children and Juveniles against Sexual Abuse / [2] Articles 297, 334(2) and 342 of the Criminal Act; Articles 3(2), 14, 32(1), 37(1)1, and 41(1)1 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Article 2(2) of the Addenda of the Act on the Protection of Children and Juveniles against Sexual Crimes (Act No. 10260, Apr. 15, 2010)

Defendant

Defendant and the respondent for attachment order and the prosecutor

Attorney Kim Han-sung

Seoul High Court Decision 2011No146, 2011 Jeonno138 decided June 23, 2011

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

1. Determination of the accused case

A. As to the Defendant’s ground of appeal

According to the reasoning of the judgment below, the court below determined that the defendant and the person to whom the attachment order was requested (hereinafter referred to as the "defendant") did not seem to have had the ability to discern things or make decisions at the time of each of the crimes of this case.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to mental disorder as otherwise alleged in the ground of appeal.

B. As to the Prosecutor’s Grounds of Appeal

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 and purpose, legislative history, etc. of a penal provision shall not be excluded unless it goes beyond the ordinary meaning of a legal text (see Supreme Court en banc Decision 2001Do2819, Feb. 21, 2002, etc.).

Articles 37 and 38 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Special Act”) enacted and promulgated by Act No. 10258 on April 15, 2010 provide for a system of issuing an order to disclose personal information, and Articles 41 and 42 of the same Act provide that “this Act shall enter into force on the date of its promulgation: Provided, That Articles 32 through 42 and 43(1) and (3) of the Addenda shall enter into force on the date of its promulgation,” and Article 2(2) of the Addenda provides that “Articles 37, 38, 41 and 42 shall enter into force on the date on which one year has passed after its promulgation,” and Article 37, 38, 41, and 42 of the Addenda shall apply to the first order to disclose or notify personal information.”

As can be seen, the Special Act on the Protection of Children and Juveniles does not impose any restrictions on the time when the crime subject to the Act is committed, unlike the Act on the Protection of Children and Juveniles against Sexual Abuse, with respect to the disclosure order and notification order system of personal information, and the Act on the Protection of Children and Juveniles against Sexual Abuse provides for the exemption order and notification system of personal information. The introduction of the Act on the Protection of Children and Juveniles against Sexual Offenses to the Act on the Protection of Sex Offenses is not only high recidivism rate but also sex offenders against children. Thus, the purpose of the Act is to prevent sex crimes as well as sex crimes against children and juveniles by disclosing personal information of sex offenders, and the Act on the Disclosure order and notification order of personal information is to prevent sex crimes against adults as well as sex offenders against children and juveniles. In light of the fact that the Act on the Protection of Personal Information has strong security measures to prevent sex crimes, unlike punishment for response to sex offenders, Article 32 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 37 (1) of the Act on the Protection of Public Prosecution Order or the Act was implemented.

However, each crime described in paragraph (1) of the Defendant’s charge constitutes a sexual crime subject to registration under Article 32(1) of the Act, which is subject to an order to disclose and notify personal information under Article 37 and Article 41 of the Act on Special Cases concerning the Disclosure of Personal Information, and thus, even if a public prosecution was instituted prior to April 16, 201, the enforcement date of Article 37 and Article 41 of the Act on Special Cases concerning the Disclosure of Personal Information, it shall be deemed as subject to an order to disclose and notify personal information pursuant to Article 2(2) of the Addenda

Nevertheless, the lower court determined that each crime listed in Article 2 (2) of the Addenda is not subject to an order to disclose or notify personal information. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of application under Article 2 (2) of the Addenda, thereby adversely affecting the conclusion of the judgment.

Therefore, among the judgment below, the part of the disclosure order and notification order cannot be reversed, and the disclosure order and notification order under Articles 37 and 41 of the Act on Special Cases Concerning the Protection of Sexual Crimes are incidental disposition to be declared simultaneously with the judgment of a sexual crime subject to registration, and where the whole or part of the disclosure order and notification order are unlawful, the whole part of the judgment of the court below shall be reversed, even if there

2. Conclusion

Therefore, the part of the judgment of the court below regarding the defendant's case shall be reversed. In the case where the judgment of the court below is reversed illegally, it shall be examined together with the judgment of the court below, and the case of the attachment order order which must be sentenced simultaneously cannot be reversed. Thus, without examining the remaining grounds of appeal by the defendant, the judgment of the court below shall be reversed in whole, and the case shall be remanded to the court below for a new trial

Justices Park Si-hwan (Presiding Justice)