[1] In applying the principle of prohibition of disadvantageous alteration, whether the order should be considered as a whole and substantially and judged (affirmative)

[2] The case holding that in a case where the first instance court convicted the Defendant of sexual assault offenses against children and juveniles before the enforcement of the Act on Welfare of Persons with Disabilities, which was amended by Act No. 15904 on December 11, 2018 and enforced June 12, 2019, and sentenced him/her to seven years of imprisonment and 80 hours of imprisonment, and sentenced him/her to an employment restriction order for ten years of imprisonment, and only the Defendant appealed from the institution related to children and juveniles, and the lower court, which sentenced him/her after the enforcement date of the Act on Welfare of Persons with Disabilities, reversed the first instance judgment and found him/her guilty ex officio, and sentenced him/her to an employment restriction order for ten years of imprisonment with labor for more than six years and 80 hours of imprisonment with labor, as well as an employment restriction order for ten years of imprisonment with labor, and the main sentence of Article 59-3(1) of the amended Act, the lower court did not err in violating the principle of prohibition of disadvantageous alteration.

[1] When applying the principle of prohibition of disadvantageous change, the order should not be considered individually and formally, but should be considered in whole and in reality and judged.

[2] Where the court below found the defendant guilty prior to the enforcement of the Act on Welfare of Persons with Disabilities (hereinafter “the amended Act”), which was amended by Act No. 15904 on December 11, 2018, and enforced June 12, 2019, issued an employment restriction order for ten years to a sexual assault treatment program and a child or juvenile-related institution, etc. for which the first instance court found him/her guilty prior to the enforcement date of the amended Act, and sentenced him/her to an employment restriction order for ten years, and only the defendant appealed against this order, and recognized him/her guilty ex officio and after the enforcement date of the amended Act, and sentenced him/her to an unfair sentencing order, the court below sentenced the first instance judgment to the effect that the court below’s order to suspend sexual assault treatment programs with six years and 80 hours more severe than the first instance court’s imprisonment with labor, and that the defendant did not have any more unfavorable disadvantage than the first instance court’s order to restrict employment of welfare facilities for the disabled under Article 2 of the amended Act and Article 59-3(1) of the amended Act.

[1] Article 368 of the Criminal Procedure Act / [2] Article 5(1) and (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 15352, Jan. 16, 2018); Article 7(1) and (2) 2, Article 21(2), and Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Articles 1, 3, and 4(1)3 of the Addenda (Amended by Act No. 15904, Jan. 16, 2018); Article 59-3(1) of the former Act on Welfare of Persons with Disabilities (Amended by Act No. 15904, Dec. 11, 2018); Article 13(1) of the Addenda of the Criminal Procedure Act (Amended by Act No. 153904, Dec. 15, 198)

[1] Supreme Court Decision 2012Do7198 Decided December 12, 2013 (Gong2014Sang, 212)

Defendant

Defendant

Attorney Kim Jong-soo

Daejeon High Court (Cheongju) Decision 2019No31 decided July 25, 2019

The appeal is dismissed.

The grounds of appeal are examined.

1. misunderstanding of legal principles as to the scope of the appellate trial trial

In this case, only the Defendant appealed on the grounds of unfair sentencing. The lower court reversed the part of the first instance judgment that found the Defendant guilty of the instant charges in order to deliberate and decide on an order for employment restriction, which is an incidental disposition, pursuant to Article 59-3 of the Act on Welfare of Persons with Disabilities (hereinafter “amended Act”) which was amended by Act No. 15904 on December 11, 2018 and enforced June 12, 2019, and applied Article 2 of the Addenda to the Act on Welfare of Persons with Disabilities (hereinafter “amended Act”), and issued an employment restriction order to a child or juvenile-related institution, etc. with an employment restriction order for 10 years at the same time when issuing an employment restriction order to the Defendant for six years and 80 hours more minor imprisonment than the first instance judgment, and issued an employment restriction order to a child or juvenile-related institution, etc. for 10 years at the same time. Examining the relevant legal principles and records in light of the judgment of

2. Claim against the principle of prohibition of disadvantageous change

A. When applying the principle of prohibition of disadvantageous alteration, the main text should not be examined individually and formally, and the overall and substantial consideration and determination should be made (see Supreme Court Decision 2012Do7198, Dec. 12, 2013, etc.).

B. If the judgment of the first instance becomes final and conclusive without filing an appeal, the employment of the Defendant with respect to welfare facilities for the disabled for five years would have been restricted pursuant to the special provisions of Article 3(1)1 of the Addenda of the amended Act. The lower court, while rendering a judgment on July 25, 2019, which was after the enforcement of the amended Act, only the Defendant filed an appeal, sentenced the Defendant to six years of imprisonment with prison labor for the Defendant who committed a sex offense before the enforcement of the amended Act, and issued an employment restriction order for ten years at welfare facilities for the disabled pursuant to Article 2 of the Addenda of the amended Act and the main sentence of Article 59-3(1) of the amended Act.

C. Examining in light of the aforementioned legal principles, the lower court ordered the restriction on employment of welfare facilities for persons with disabilities for a longer period than when the first instance judgment became final and conclusive in the reduction of imprisonment with labor sentenced by the first instance court for one year. Therefore, the lower court’s judgment cannot be deemed as a more unfavorable judgment against the Defendant than the first instance judgment. In so determining, the lower court did not err by violating the principle of prohibition against disadvantageous change in the

3. Conclusion

The Defendant’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)