[1] Where a person who commits a sexual crime against a child or juvenile constitutes a person who commits a sexual crime subject to registration under Article 32(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, whether such person is subject to an order of notification under Article 41 of the same Act (negative)

[2] In a case where the defendant was prosecuted for violating the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.) by having sexual intercourse with the victim (the age of 14), by force, the case holding that the above crime cannot be ordered to give notice under Article 41 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes unless it constitutes a sex crime against a child or juvenile

[1] The Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Act on the Punishment, etc.”) limits sexual crimes subject to the order to notify personal information to adults by excluding those who have committed sexual crimes subject to the order to prevent sex crimes subject to the order to notify personal information, and does not impose any restrictions differently from the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “Juvenile Act”), which provides for supplementary provisions that limit the period during which the crime subject to the order to notify personal information was committed after the enforcement of the Act on the Protection of Children and Juveniles against Sexual Abuse. The introduction of the Act on the Punishment, etc. of Sexual Crimes against Children and Juveniles with the order to notify personal information to those who have committed sexual crimes subject to the order to prevent sexual crimes subject to the order to notify personal information by adults, while the Act on the Protection of Children and Juveniles against Sexual Abuse was intended to prevent sex crimes subject to the order to notify sexual crimes subject to the Act in light of Article 18(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse, the Act on the Protection of Children and Juveniles against those subject to be interpreted.

[2] In a case where the defendant was prosecuted by force for violating the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.) by having sexual intercourse with a victim who is a juvenile (the age of 14), the case holding that even if the above crime constitutes a sexual crime subject to registration under Article 32 (1) 1 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter “Act”), it cannot be ordered to give notice under Article 41 of the Act on the Protection of Sexual Crimes as long as it constitutes a sexual crime subject to registration under Article 32 (1) 1 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, since it does not constitute a sexual crime subject to notification under Article 38 (1) 1 of the Act on the Punishment, etc

[1] Articles 38(1)1 and 38-2(1)1 of the Act on the Protection of Children and Juveniles against Sexual Abuse; Articles 1 and 4 of the Addenda (Act No. 10260, Apr. 15, 2010); Articles 32(1), 37(1)1, and 41(1)1 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes / [2] Article 297 of the Criminal Act; Articles 7(1) and (5) and 38(1)1 of the Act on the Protection of Children and Juveniles against Sexual Abuse; Articles 32(1), 41(1)1 and (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Article 2(2)2 of the Addenda ( April 15, 2010)

Defendant

Prosecutor

Attorney Anti-Hun-Hun

Seoul High Court Decision 2011No1551 decided August 19, 2011

The appeal is dismissed.

The grounds of appeal are examined.

Articles 41 and 42 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended and promulgated by Act No. 10258, Apr. 15, 2010; hereinafter "the Sexual Exposure Act") provide for the system of issuing an order to notify personal information. Article 1 of the Addenda provides that "this Act shall enter into force on the date of its promulgation: Provided, That Articles 32 through 42, and 43 (1) and (3) shall enter into force on the date one year has passed after its promulgation." Article 2 (2) of the Addenda provides that "Articles 37, 38, 41, and 42 shall enter into force on the date of its promulgation." Articles 37, 38, 41, and 42 shall apply to cases concerning the disclosure and notification of personal information to a person subject to the first order after the enforcement of Articles 37, 41, and 42 shall also apply to a person subject to an order to notify or notify a sexual crime under Article 19 (2) of the Act.

Meanwhile, Article 41(1)1 of the Sexual Exposure Act provides that an order shall be issued to a person who commits a sexual crime subject to registration under Article 32(1) of the same Act, among persons subject to disclosure of information, to notify a person who commits a sexual crime subject to registration under Article 32(1)1 of the same Act, and Article 37(1)1 of the same Act provides that a person who commits a sexual crime subject to registration shall be subject to disclosure of information under Article 38 of the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10260, Apr. 15, 2010; hereinafter “AB”), and Article 38(1)1 of the ABA provides that a person who commits a sexual crime subject to registration under Article 38(1)1 of the same Act shall be subject to disclosure of information, and Article 38-2(1)1 of the same Act provides that an order to notify a person who commits a sexual crime subject to disclosure of information.

As such, the Gender Exposure Act limits a sex crime subject to adult by excluding a person who has committed a sex crime subject to an order to notify personal information, and it does not impose any restrictions differently from the laws of the Republic of Korea, which provides for supplementary provisions that limit the period during which the crime subject to an order to notify personal information was committed after the enforcement of the provisions on an order to notify the sex crime subject to children and juveniles. In addition, the legislative intent of introducing an order to notify personal information on a sex crime subject to adult age is to prevent sex crime subject to sex, as well as to prevent recidivism of sex crimes subject to sex, it is the legislative intent of Article 38(1)1 of the Act on the Protection of Children and Juveniles from Sexual Abuse to the Ministry of Gender Equality and Family, even if the Act provides for an order to notify the sex crime subject to the Act on the Protection of Children and Juveniles, it is reasonable to interpret Article 38(2)1 of the Act on the Protection of Children and Juveniles from among those subject to the Act on the Protection of Children and Juveniles.

Therefore, the court below's decision that the defendant's crime stated in the facts charged of this case constitutes a sexual crime subject to registration under Article 32 (1) of the Sexual Exposure Act shall be deemed to be subject to notification order under Article 41 of the Addenda of the same Act pursuant to Article 2 (2) of the same Act, even if the defendant's crime of this case constitutes a sexual crime subject to registration under Article 32 (1) of the same Act prior to the enforcement of Article 41 of the same Act, and is indicted for a violation of the same Act, but the court below's decision that the defendant's crime of this case is not subject to notification order under Article 41 of the same Act, unlike the interpretation of Article 2 (2) of the Addenda of the same Act, is erroneous in the misapprehension of legal principles as to the scope of application under Article 2 (2) of the Addenda of the same Act, but the conclusion of the court below's decision that the defendant's crime of this case constitutes a sexual crime subject to registration under Article 32 (1) 1 of the same Act is not affected by the defendant's order.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)