[1] In the case of a sexual crime against a child or juvenile, whether only a person who committed an offense after January 1, 201, in which Article 38-2 of the Act on the Protection of Children and Juveniles against Sexual Abuse was enforced, may be sentenced to an order of notification (affirmative)

[2] In a case where the defendant was prosecuted for violating the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof for committing sexual assault crimes against the 17-year-old juveniles, the case holding that the court below erred by misapprehending the legal principles, etc. in holding that whether the defendant is subject to disclosure order as to the crime of special rape on August 4, 2008 and August 29, 2009 as prescribed by Article 3 (4) of the former Act on the Protection of Children and Juveniles against Sexual Abuse, and that the above crime constitutes a crime before the enforcement of Article 38-2 of the Act on the Protection of Children and Juveniles against Sexual Abuse, and thus is not subject to disclosure order as prescribed by Article 1 and Article 4 of the Addenda of the same Act

[1] Article 38-2 of the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10260, Apr. 15, 2010; hereinafter “Child Protection Act”) provides that "a person who has committed a sexual crime against children or juveniles” among those subject to disclosure order under Article 38 of the same Act shall also be sentenced to notification order. Article 1 of the Addenda of the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10260, Apr. 15, 2010) provides that “this Act shall enter into force on the date of its promulgation: Provided, That the amended provisions of Articles 31-2, 38-2, and 38-3 shall enter into force on January 1, 201; Article 4 of the Addenda provides that "the amended provisions of Articles 38-2 and 38-3 shall only apply to those subject to notification and order subject to notification for the first time after the enforcement of the same Act."

[2] In a case where the defendant was prosecuted for violating the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (amended by Act No. 10258 of Apr. 15, 2010), the case holding that the defendant's crime of special rape committed against 17 years of age constitutes a sexual crime to be registered under Article 32 (1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter "Special Cases Concerning Sexual Crimes"), although the defendant's crime of special rape committed against 17 years of age falls under the category of crimes to be registered under Article 32 (1) of the former Act on the Protection, etc. of Children and Juveniles against Sexual Abuse (amended by Act No. 9765 of Jun. 9, 200), since Article 2 subparagraph 3 and Article 2 (2) (b) of the former Act on the Protection, etc. of Children and Juveniles against Sexual Abuse (amended by Act No. 10106 of Nov. 4, 2008).

[1] Articles 38 and 38-2 of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 1 and Article 4 of the Addenda (Act No. 10260, Apr. 15, 2010) / [2] Article 297 of the Criminal Act, Article 6 (1) of the former Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (amended by Act No. 10258, Apr. 15, 2010; Article 4 (1), 32 (1), 37, and 41 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Article 4 of the Addenda (amended by Act No. 1010, Apr. 15, 2010); Article 30 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 9765, Jun. 9, 2010); Article 20 (3) of the former Act on the Protection of Children and Juveniles against Sexual Abuse; Article 30 (2) of the former Act

Defendant

Defendant and the respondent for attachment order

Attorney Kim Jae-chul

Busan High Court Decision (Chowon) 2012No149, (Chowon) 2012No18 decided August 17, 2012

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

1. The grounds of appeal are examined.

A. Examining the reasoning of the lower judgment in light of the record, it is justifiable for the lower court to reject the Defendant’s assertion of mental disability based on the circumstances as indicated in its reasoning without conducting a mental appraisal of the Defendant and the person against whom the attachment order was requested (hereinafter “Defendant”), and there is no error of law by misapprehending the legal doctrine on mental disorder or mental and physical disability, contrary to what is alleged in the grounds of appeal. Moreover, the assertion that requests a mental appraisal does not constitute

B. Examining various circumstances, such as the Defendant’s age, sex, intelligence and environment, and motive, means, and consequence of the instant crime, the circumstances after the crime, etc., the determination of the sentence by the lower court, which maintained the first instance judgment that sentenced 17 years to the Defendant, even if considering the circumstances asserted by a state appointed defense counsel, cannot be deemed as significantly unfair.

C. According to the records, the defendant appealed against the judgment of the court of first instance on the ground that he was judged by the court below only on the ground of mental and physical disability and unreasonable sentencing (this refers to the defendant's assertion to the effect that "a request for mitigation of self-denunciation" was made by submitting the document "a written statement" after the closing of argument in the court of first instance, and the defendant's assertion on mitigation of self-denunciation does not fall within the scope of the judgment of the court below, and therefore, it does not constitute an unlawful act even if the court below did not decide on it. Furthermore, even if considering the records, it cannot be deemed that the defendant voluntarily surrendered the defendant, and even if the court did not voluntarily reduce the punishment against the self-denunciation, it is merely the fact that the court

2. The decision shall be made ex officio;

A. (1) The Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended and promulgated by Act No. 10258, Apr. 15, 2010; hereinafter “Special Act on the Punishment, etc.”) limits the subject of sexual assault to those who committed an adult sexual crime by excluding those who committed a sexual crime subject to an order to disclose and notify personal information (Articles 37 and 41 of the Special Act on the Punishment, etc. of Sexual Crimes). As to those who committed a sexual crime subject to child or youth, Article 201 of the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10260, Apr. 15, 2010; hereinafter “Act No. 10260”), Article 38 and 38-2 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (see Article 32(1) of the Act on Special Cases concerning the Protection of Children and Juveniles), and Article 201 of the Act on the Protection of Children and Juveniles, etc.

(2) Meanwhile, the system of issuing an order for disclosure of personal information introduced under the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 9765, Jun. 9, 200; hereinafter “Act No. 9765”) was applied to a person who first committed a sex offense against a child or juvenile after January 1, 201, which became final and conclusive under Article 1 and Article 3(1) of the Addenda of the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 10391, Jul. 23, 2010); however, Article 3(4) of the Addenda of the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 10391, Jul. 23, 2010; hereinafter “Act No. 7801, Apr. 1, 2017>

(3) In addition, Article 38-2 of the Child Protection Act (Act No. 10260 of April 15, 2010) provides that "any person who has committed a sex crime against a child or youth" among those subject to disclosure order under Article 38 of the same Act shall be sentenced to the disclosure order under paragraph (1) 1, and Article 1 of the Addenda of the Child Protection Act (Act No. 10260) provides that "this Act shall enter into force on the date of its promulgation: Provided, That the amendments under Articles 31-2, 38-2, and 38-3 shall enter into force on January 1, 201," and Article 4 of the Addenda provides that "the amended provisions of Articles 38-2 and 38-3 shall apply from the date of notification order for committing a sex crime against a child or youth for the first time after the enforcement of the aforementioned amended provisions." Accordingly, Article 1 of the Addenda of the Child Protection Act (Act No. 10260) provides that "an order for notification order for a sex crime against a child or youth.

B. Of the facts charged in the instant case, the charges of violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (special rape) committed against juveniles under 17 years of age constitute a sexual crime subject to registration under Article 32(1) of the Act on the Special Cases of Sexual Violence, which is a crime of special rape committed against juveniles under 17 years of age, but this constitutes a sexual crime subject to registration under Article 2 subparag. 3 and subparag. 2(b) of the Act on the Protection of Juveniles from Sexual Abuse (Act No. 8634), which was enforced at the time of the commission of the crime. As such, the issue of whether the Defendant is subject to an order to disclose this part of the facts charged constitutes a sexual crime subject to disclosure under Article 3(4) of the Addenda to the Act on the Protection of Children from Sexual Abuse (Act No. 9765) and Article 3(4) of the Addenda to the Act on the Protection of Children from Sexual Abuse (Act No. 10260).

Nevertheless, without going through the above deliberation, the court below maintained the first instance judgment that the defendant is subject to the disclosure order and notification order under Articles 37 and 41 of the Sexual Violence Act concerning this part of the facts charged. In such a case, the court below erred by misapprehending the legal principles on the scope of application under Articles 37 and 41 of the Sexual Violence Special Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. Accordingly, the part of the court below’s order of disclosure and notification concerning this part of the facts charged cannot be reversed.

Meanwhile, since an order of disclosure and notification as prescribed in Articles 37 and 41 of the Sexual Violence Act is an incidental disposition to be sentenced simultaneously with a judgment on a sexual crime subject to registration, if all or part of the order of disclosure and notification is unlawful, all or part of the order shall be reversed even if there is no illegality in the remaining part of the defendant's case

C. As long as a defendant files an appeal against the judgment on the case of the defendant, the appeal is deemed to have been filed against the judgment on the case for which the request for attachment order is sought. Although the appellate brief does not state the grounds for the request for attachment order and the appellate brief does not contain any statement of grounds for objection, the appellate brief does not contain any statement of grounds for objection. However, where the judgment of the court below on the case of the defendant is unlawful and thus the judgment of the court below is reversed, the part concerning the case for which the request for attachment

3. Therefore, the lower judgment is 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 Yong-deok (Presiding Justice)