[1] Whether the defendant is subject to a "order to disclose personal information" under Article 3 (4) of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse, even in a case where a defendant is indicted of a violation of the former Act on the Punishment of Sexual Crimes, Protection of Victims Thereof, or a crime of rape under the Criminal Act against a child or juvenile (affirmative

[2] The case holding that each of the above crimes constitutes a crime stipulated in Article 10 of the former Act on the Protection of Children and Juveniles against Sexual Abuse and Article 3 (4) of the Addenda of the Act on the Protection of Children and Juveniles against Sexual Abuse and thus constitutes a crime stipulated in Article 10 of the former Act, and thus, the defendant is subject to an order to disclose personal information in accordance with Article 3 (4) of the former Act on the Protection of Children and Juveniles against Sexual Abuse

[1] The language and text of Article 3(4) of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10391, Jul. 23, 2010) (hereinafter “the Act”), and the supplementary provision provides that the aforementioned supplementary provision shall apply retroactively to a sex offender who was subject to perusal of personal information pursuant to the former Act on the Protection of Juveniles against Sexual Abuse (amended by Act No. 9765, Jun. 9, 2009). The aforementioned perusal system alone is difficult to understand information about the above sex offender, and it is reasonable to interpret Article 3(4) of the Addenda to the Act on the Protection of Juveniles against the crime of violation of the Act on the Protection of Sexual Abuse (amended by Act No. 8634, Jun. 1, 2009) by disclosing personal information about the above sex offender, and thus, it is reasonable to interpret Article 8(4) of the former Act on the Protection of Juveniles against Sexual Crimes (amended by Act No. 8634, Feb. 2, 19, 20001).

[2] In a case where the defendant was indicted of a violation of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims (amended by Act No. 8059, Oct. 27, 2006) and the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims (amended by Act No. 9110, Jun. 13, 2008) by committing the crime of rape and indecent act against a minor under 13 years of age, the case holding that each of the above crimes constitutes a crime under Article 10 of the former Act on the Protection of Children and Juveniles against Sexual Abuse and thus is subject to an order to disclose personal information pursuant to Article 3(4) (amended by Act No. 10391, Jun. 9, 2009) of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10391, Jul. 23, 2010).

[1] Article 38 of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 1, Article 3(2) and (4) of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10391, Jul. 23, 2010); Article 3(1) of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10391, Jul. 23, 2010); Article 8-2(2) of the former Act on the Punishment of Sexual Crimes and Protection of Victims against Sexual Crimes (amended by Act No. 8059, Oct. 27, 2006; Article 7(3) of the former Act on the Protection of Children and Juveniles against Sexual Crimes (amended by Act No. 10391, Jun. 9, 2010); Article 3(1) (2) of the former Act on the Punishment of Sexual Crimes against Sexual Crimes; Article 9(3) of the former Act on the Protection of Juveniles against Sexual Crimes.

Defendant

Prosecutor

Attorney Kim Kim-seop

Seoul High Court Decision 2010No2779, 2010No177 decided November 19, 2010

The part of the judgment of the court below regarding the defendant's case is reversed. Each defendant and prosecutor's appeal shall be dismissed. The appeal against the case of attachment order shall be dismissed.

1. Determination of the accused case

We examine the 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 the law shall not be excluded in the interpretation of the penal provision unless it goes beyond the ordinary meaning of the legal text (see Supreme Court en banc Decision 2001Do2819, Feb. 21, 2002, etc.).

Notwithstanding Article 3(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 9765, Jun. 9, 2009; hereinafter “Act”), the system of issuing an order to disclose personal information introduced under Article 1 and Article 3(1) of the Addenda to the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 9765); first, after the enforcement date, a person who committed a sex offense against a child or juvenile and whose conviction has become final and conclusive, was subject to the first order to disclose such information. However, the amendment of Article 3(1) of the Addenda to the Act on the Protection of Juveniles against Sexual Abuse (amended by Act No. 10391, Jul. 23, 2010; hereinafter “Notwithstanding paragraph (1), the Minister of Gender Equality and Family,” provides for the whole or partial amendment of Article 3(1) of the Act on the Protection of Juveniles against Sexual Abuse (including a person who was subject to preliminary registration) and a prosecutor who received an order to disclose the Act pursuant to Article 37(1).

Article 3(4) of the Addenda, and Article 3(4) of the former Act on the Protection of Juveniles against Sexual Abuse applies retroactively to a sex offender who was subject to inspection of personal information under the former Act on the Protection of Juveniles against Sexual Abuse. The aforementioned inspection system alone makes it difficult to understand information about sex offenders against children and juveniles, thereby preventing sex offenses against children and juveniles by disclosing personal information about such sex offenders. In light of the legislative intent of Article 3(4) of the Addenda, it is reasonable to interpret that Article 3(4) of the former Addenda provides that "any person who was subject to inspection decision or inspection order by committing a crime (violation) prescribed by the Act on the Protection of Juveniles against Sexual Abuse (Act No. 7801) or the Act No. 8634 (Act on the Protection of Juveniles against Sexual Abuse) and Article 38 of the Act on the Punishment of Victims against Juveniles against Sexual Crimes (Act No. 8634), which is not a violation of the former Act on the Protection of Sexual Abuse, and thus, Article 38(4) of the Addenda of the Criminal Act shall also apply.

However, each of the instant crimes committed by the Defendant constitutes a crime under Article 10 of the former Act on the Protection of Juveniles against Sexual Abuse (wholly amended by Act No. 7801 of Dec. 29, 2005), and thus, even if a prosecution was instituted against the crime of violating the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, it shall be deemed that the aforementioned crime is subject to an order to disclose personal information pursuant to Article 3(4) of

Nevertheless, the lower court determined that the Defendant is not subject to an order to disclose personal information. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of application under Article 3 (4) of the Addenda, thereby adversely affecting the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

Therefore, the part of the judgment of the court below regarding the defendant's case is reversed, but this case is deemed sufficient for the Supreme Court to judge, so it is directly decided in accordance with Article 396 (1) of the Criminal Procedure Act.

The main point of the grounds for appeal by the defendant is that the sentence of the first instance is too unreasonable, and the main point of the grounds for appeal by the prosecutor is that the sentence of the first instance is too unreasonable.

Examining the various sentencing conditions of the defendant as shown in the record, the sentence of the first instance court is deemed appropriate, and it seems improper because it is too heavy or unreasonable. Thus, the argument in the grounds for appeal by the defendant and the prosecutor is without merit.

2. Judgment on the case of a request for attachment order

When the prosecutor files an appeal against the accused case, the appeal is deemed to have been filed in respect of the case of the request for attachment order under Article 9(8) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders. However, the appellate brief does not indicate the grounds for appeal and the appellate brief does not contain any description of the grounds for appeal.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the defendant's case shall be reversed, the defendant and the prosecutor's appeal shall be dismissed, and the appeal regarding the case for attachment order shall be dismissed. It is so decided as per Disposition by the assent

Justices Yang Chang-soo (Presiding Justice)