In a case where the court below affirmed the first instance judgment ordering the Defendant and the respondent for an attachment order to attach an electronic tracking device along with the conviction, the case holding that the court below erred in the violation of Article 9-2 (1) 2 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders by failing to set a compliance period while imposing an obligation under Article 9-2 (1) 3 and 5 of the same Act;

In a case where the court below affirmed the first instance judgment ordering the Defendant and the person against whom the crime of rape was committed to attach an electronic tracking device, along with the conviction, as it is, the case holding that Article 9-2 (1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”) provides that the compliance period shall be determined within the attached period in order to impose an order to attach an electronic tracking device where the order to attach an electronic tracking device is issued; however, the court below erred in the violation of Article 9-2 (1) of the Act on the Electronic Monitoring, etc. of Electronic Devices (hereinafter “Electronic Monitoring Act”) by imposing “Prohibition of Access within 100 meters to Victims” and “Prohibition of Excessive Drinking Drinking” on the part of the court below

Articles 297 and 301 of the Criminal Act, Article 2 subparagraph 2 (a) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, Article 5 (1) 3, Article 9 (1) 1, and Article 9-2 (1) of the Criminal Act

Defendant

Defendant and the respondent for attachment order

Attorney Hail-ho

Busan High Court Decision 2011No594, Jeonno77 decided December 29, 2011

The part of the judgment below regarding the claim for attachment order is reversed, and that part of the case is remanded to Busan High Court. The appeal against the prosecuted case is dismissed.

The grounds of appeal are examined.

1. Defendant case

Examining the reasoning of the lower judgment in light of the records, the lower court is justifiable to have rejected the Defendant’s assertion on the mental and physical disorder on the grounds as indicated in its reasoning, and there were no errors in the misapprehension

In addition, the argument that the sentence of the court below is excessive, or that the defendant did not properly consider the circumstances leading up to the defendant's complaint due to conflict with the investigation agency when the court below determines the sentence against the defendant, or that the defendant did not take the fact that the defendant voluntarily surrenders to the investigation agency, etc. constitutes an allegation of unfair sentencing.

However, according to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed. Thus, in this case where a more minor sentence has been imposed on the defendant, the argument that the amount of punishment is unreasonable cannot be

2. As to the attachment order case

A. The argument that the first instance court ordered the defendant to attach an electronic tracking device for ten years is erroneous, and it does not constitute a legitimate ground of appeal, as it is alleged in the ground of appeal that the defendant did not consider it as the ground of appeal or that the court below did not consider it as the subject of judgment ex officio.

B. We examine ex officio.

The lower court affirmed the first instance judgment that imposed on the Defendant and the person subject to an order to attach an electronic tracking device for 10 years of imprisonment with prison labor, 10 years of a disclosure order, 10 years of a notification order, and 10 years of a location tracking device attached to the Defendant and the person subject to an order to attach an electronic device for 10 years of an electronic device attachment, “1:0 to 05:00 each day during the period of the electronic device attachment,” which imposes on the victim’s union members no access within 100 meters, 3.20 hours of sexual assault treatment program, and 4.0 hours of excessive drinking.”

However, Article 9-2(1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”) provides that “the compliance period shall be set within the period of attachment in order to impose an order to attach an electronic device when issuing an order to attach an electronic device.” Nevertheless, the lower court maintained the first instance judgment that did not set the compliance period when imposing “the prohibition of access to the victim’s union employees within 100 meters” and “the prohibition of excessive drinking” as prescribed in subparagraph 5 as a matter of compliance under Article 9-2(1)3 of the Act on the Electronic Monitoring, etc. of Electronic Devices. In this regard, the lower court’s decision is inconsistent with Article 9-2(1) of the Act on the Electronic Monitoring, etc. of Electronic Devices

3. Conclusion

Therefore, the part of the judgment below regarding the claim for attachment order among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal against the prosecuted case is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Il-young (Presiding Justice)