2019Do1850 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Place of Public Smuggling)

Indecent Acts in this section)

A

Defendant

Law Firm B

Attorney C, D

Incheon District Court Decision 2019No2156 Decided November 22, 2019

May 14, 2020

The judgment of the original court shall be reversed, and the case shall be remanded to the Incheon District Court.

The grounds for appeal are determined.

1. The lower court found Defendant 1 guilty of the facts charged of the instant case on the grounds as indicated in its holding. Examining the relevant legal principles and evidence duly adopted and investigated, the lower court’s judgment was erroneous by failing to exhaust all necessary deliberations and exceeding the bounds of the principle of free evaluation of evidence against the logical and empirical rules.

shall not be effective.

2. As to the addition of an employment restriction order to welfare facilities for disabled persons

(1) The former Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018); Article 59(1) of the former Act on the Punishment of Sexual Crimes (amended by Act No. 15904); Article 2(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 1) provides that a person who was finally sentenced to imprisonment or medical treatment and custody under Article 2(2) of the former Act on the Punishment of Sex Offenses (amended by Act No. 1) shall be subject to the enforcement of the Act on the Protection of Children and Juveniles from the date of the enforcement of the Act on which the former Act on the Protection of Persons with Disabilities (amended by Act No. 1506, Dec. 1, 201; 2015) shall be subject to the enforcement of the Act on the Protection of Employment of Persons with Disabilities for a certain period of less than 10 years (hereinafter referred to as "the former Act on the Protection of Workers with Disabilities").

B. Facts of recognition

Comprehensively taking account of the evidence duly adopted and examined by the lower court, the following facts are revealed. (1) The summary of the facts charged in the instant case is as follows: “Around August 27, 2018.07:49, the Defendant used a gap of inside a subway line 1, a subway line 201: (a) followed by using a gap of internal disorder, and then, using a part of the body part of the victim’s clothes, i.e., the part of the victim’s clothes outside the subway line 1, thereby committing indecent act against the victim at a densely-populated place.”

(2) On November 22, 2019, after the enforcement of the amended Act, the first instance court sentenced the Defendant guilty of the instant charges, and sentenced the Defendant to four months of imprisonment and one year of suspended execution, and ordered the Defendant to provide community service for 120 hours, and to provide a three-year employment restriction order to institutions related to children and juveniles for 40 hours, and did not make a decision on the addition of the employment restriction order under the amended Act. (3) The lower court sentenced the judgment on November 22, 2019, on the ground that the first instance court omitted the decision on the addition of the employment restriction order under the amended Act, and sentenced the Defendant to imprisonment for the same period as the first instance court under Article 2 of the Addenda of the amended Act and the amended provisions of the amended Act, and sentenced the Defendant to a three-year employment restriction order under the Social Welfare Service Act, by issuing a new employment restriction order under the Social Welfare Service Act for a period of 3 years of imprisonment with prison labor and a new employment restriction order under the amended Act.

C. Determination

(1) In this case involving Defendant 1’s appeal, a sentence more severe than that of the first instance judgment shall not be imposed (Article 368 of the Criminal Procedure Act). Determination as to whether the sentence of the lower court was modified disadvantageous to the Defendant should be based on the severity of the punishment under the Criminal Act, but rather on the basis of the overall order, it should be determined by considering whether it is not substantially disadvantageous to the Defendant (see Supreme Court Decision 2009Do12967, Feb. 11, 2010). Meanwhile, the order for restriction on employment prescribed in the revised provision is one type of social treatment of the crime, and it is not a new type of security disposition, but a new order for the provision on employment of the welfare facilities for the disabled or the provision on actual labor to the welfare facilities for the disabled (see, e.g., Supreme Court Decision 200Do1297, Nov. 15, 2019).

3. Scope of reversal

For the foregoing reasons, the part of the lower judgment on the employment restriction order for the welfare facilities for the disabled should be reversed. Since the employment restriction order is an incidental disposition that the court declares simultaneously with the judgment on a certain sex offense case, it is inevitable to reverse the entire part of the Defendant case.

4. Conclusion

Therefore, the judgment of the court below is entirely reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Min You-sook

Justices Kim Jae-hyung

Justices Lee Dong-won

Jeju High Court Decision 205No10