In a case where: (a) the Defendant was sentenced to an order to attach an electronic tracking device for six years and ten years; (b) the Defendant was sentenced to an order to attach an electronic tracking device for a location of the victim, etc. during the period of attachment of the electronic device; and (c) the judgment was finalized to impose an order to restrict access within 500 meters, such as the victim, etc.’s residence during the period of attachment of the electronic device; and (d) the prosecutor subsequently requested an additional order to restrict drinking more than a certain quantity; and (e) the first instance court accepted the prosecutor’s request and rejected the Defendant’s appeal that “the said additional order shall be imposed during the period of attachment of the electronic device,” the case holding that

In the event of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.), a court issued an attachment order, etc. for a location tracking device (hereinafter “electronic device”) for six years and ten years, and issued an order to attach an electronic device, etc., and issued an order to prohibit access within 500 meters, such as the victim’s residence, during the period of attachment of the electronic device, became final and conclusive. After which the prosecutor filed a request for addition of the rules to restrict drinking more than a certain amount of alcohol (hereinafter “additional rules”) in relation to the attachment order of the electronic device, and the first instance court accepted the prosecutor’s request and filed a complaint against the defect that “additional rules shall be imposed during the period of attachment

Article 9(3), Article 9-2(1), Article 14-2(1)1, Article 32(1), Article 32(2), and Article 32(3)7 of the Act on Probation, Etc. (hereinafter “Probation Act”) of the Act on Probation, Electronic Monitoring, Etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”), and Article 32(3) of the Act on Probation, Etc. (hereinafter “Probation Act”), have committed violence several times during the period of issuing an electronic device attachment order, and the Defendant committed an offence under drinking, three times even before the judgment on the merits was rendered, and criminal facts also have sexual intercourse with a victim who is unable to breathly; the Defendant attempted suicide twice during the period of issuing an electronic device attachment order to ensure that the probation team and the police have called out to observe the order for prompt response team after drinking, and that it is necessary to determine the remaining period of compliance with the order to attach an electronic device for more than seven years, and it is recognized that the Defendant has violated the Act on Probation and Improvement, and that it is necessary to provide additional corrective measures within the period of Article 12 of the Act.

Article 7(4) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 299 of the Criminal Act; Article 9(1) and (3) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders; Article 9-2(1)3, 4, and 5 of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 14-2(1)1 of the Act on Probation, etc. of Specific Criminal Offenders; Article 32 of the Act on Probation, Etc.

Defendant

Defendant

Incheon District Court Order 2020 early 153 dated April 6, 2020

The order of the court below is revoked.

The matters to be observed, such as the entry in attached Form 3, shall be added to the matters to be observed for one year during the period of attachment of the location tracking electronic device in this case.

1. Progress of the original judgment

A. On July 6, 2012, the Defendant was sentenced to imprisonment with labor for a crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.) in Seoul High Court Decision 2012No537, 2012 No. 40 (Joint) (hereinafter referred to as “the instant judgment”), and was subject to the matters to be observed in [Attached Form 1]. While the Defendant appealed, the Defendant was dismissed on October 11, 2012 (Supreme Court Decision 201Do901, 2012Do164 (Joint)), the said judgment became final and conclusive as it is.

B. On March 19, 2020, according to Article 14-2 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”), a prosecutor filed an application for the addition of the matters to be observed (hereinafter “instant additional matters to be observed”) related to the attachment order of the main judgment (attached Form 2) against the Defendant.

C. The lower court accepted the prosecutor’s request and decided that “the instant additional rules shall be imposed during the period of compliance” in accordance with Articles 14-2(1)1 and 9-2(1)5 of the Electronic Monitoring Act (Article 9-2(1) of the same Act). The Defendant appealed against it.

2. Summary of grounds for appeal;

The Defendant well abide by the matters to be observed according to the attachment order of the main text judgment, and is related to drinking alcohol and assault cases, but there is no punishment for this reason, and efforts to return home at night 12 hours prior to the night, and live a stable life by marriage after release. Therefore, the order of the court below that imposed the additional matters to be observed on the Defendant is unreasonable.

3. Determination

A. Article 14-2(1)1 of the Electronic Monitoring Act provides that where an electronic device subject to attachment violates the matters to be observed under Article 32 of the Act on Probation, Etc. (hereinafter “Probation Act”), without justifiable grounds, the court may, upon a prosecutor’s request, make a decision to add the matters to be observed under Article 9-2(1). Article 9-2(1) of the same Act provides that “where an electronic device is issued, the court may impose an order to attach the matters to be observed under Article 9-2(1) within the scope of the period of attachment; (2) restriction on out-of-the-spot and place of specific time, including the night, etc.; (3) restriction on access to a residential area; (4) restriction on access to a specific person, such as the victim; (5) completion of the specific crime therapy program; (5) other persons subject to attachment order; and (3) a person subject to attachment order may impose one or more of the matters necessary for preventing recidivism and correcting character and behavior during the period of attachment.”

B. Article 32(1) and (2) of the Probation Act provides for general matters to be observed by persons subject to probation, such as “to observe matters to be observed under the direction and supervision of a probation officer and make efforts to become a sound social person on his/her own,” and “to leave bad habits to commit an offense,” and Article 32(3) of the Probation Act provides for special matters to be separately imposed, one of the them refers to “a person who does not drink one day or more so.”

C. Probation is not a punishment, but a punishment, but a combined measure to protect an offender and defend society from future danger. From the perspective of criminal policy as seen above, probation is an institutional significance to prevent crimes and recidivism through edification and improvement of a person subject to probation by imposing matters to restrict his/her freedom for a certain period of time, considering the characteristics of the person subject to probation, and the content and type of the offense committed by him/her, even though it is not in the area of personal freedom or prohibited acts that infringe on other persons’ interests, in view of the aforementioned criminal policy aspect, and even if it is not prohibited acts that infringe on other persons’ interests, the characteristic of the person subject to probation, and the nature of the person subject to probation, etc., in order to prevent crimes and recidivism. However, probation under the rule of law and the principle of guaranteeing fundamental rights, should be conducted within the necessary and appropriate scope, and probation should be conducted in the most appropriate way. Therefore, probation should be specifically imposed within the scope that the person subject to probation can observe and its freedom should be imposed (see Supreme Court Decision 2010Do6403, Sept. 30, 201).

D. Comprehensively taking account of such legal provisions and legal principles as well as the following circumstances acknowledged by the record, the Defendant was found to have violated the matters to be observed under Article 32 of the Probation Act, and the instant additional matters to be observed constitute “other matters necessary for preventing recidivism and correcting character and behavior of a person sentenced to an attachment order” under Article 9-2(1)5 of the Electronic Monitoring Act, and the lower court’s imposition of the instant additional matters to the Defendant is necessary for the correction and improvement of the Defendant.

① On June 20, 2018, under the influence of alcohol during the period of an order to attach an electronic device in the judgment on the merits, the Defendant assaulted the victim’s head, without any particular reason, and committed an assault, such as taking the victim’s head, walking the victim’s walking. (2) On September 25, 2019, the Defendant used the victim’s face before a toilet for official use. (3) On November 28, 2019, the Defendant assaulted the victim upon taking another victim’s face from the head of the other body. Each of the above assault was subject to a disposition that has no authority to prosecute. However, the Defendant committed several offenses while drinking alcohol during the period of an order to attach an electronic device.

② The Defendant, even before committing the crime on the merits, had three times a previous conviction, and the criminal facts of the judgment on the merits also had sexual intercourse with the victim who was unable to resist under the influence of alcohol after drinking with the victim.

(3) The defendant attempted suicide after drinking twice during the period of an order to attach an electronic device in the judgment on the merits, and the defendant was dispatched to the Incheon Probation Office, the District Court of Incheon Probation Office, the prompt response team, and the police.

④ As a result of the preliminary examination (AUD IT) of the Defendant’s alcohol use disorder on the merits judgment, the Defendant was assessed to have a total point of 27 points to constitute “ alcohol addiction.”

⑤ Although the Defendant is obligated to comply with the existing matters to be observed in attached Form 1 and general matters to be observed under Article 32 of the Probation Act, it is difficult to effectively prevent recidivism due to the Defendant’s failure to continuously manage and rapidly respond to the crime and the act of deviation from drinking, and thus, it is necessary to impose the additional matters to prevent recidivism by imposing substantial control over drinking, thereby promoting re-socialization.

E. However, in full view of the above legal principles, circumstances, and the following circumstances, the lower court’s determination of the remaining period of attachment as the compliance period without any restriction on the compliance period in the instant additional compliance period is difficult to deem that the remaining period of attachment was added within necessary and appropriate limits. Therefore, the lower court’s determination is unreasonable within such scope. Accordingly, the lower court’s determination is revoked, and the additional compliance period of the instant case should be imposed on the Defendant (attached Form 3) by setting a compliance period for

① The period of attachment of the instant electronic device remains at least seven years from November 6, 2017 to November 5, 2027.

② From the perspective of criminal policy perspective, when adding a matter to the defendant, the defendant needs to observe it in good faith and provide him/her with incentives for edification and improvement, and to do so, it is necessary to set a reasonable compliance period suitable for the situation. In this regard, Article 9-2(1) of the Electronic Monitoring Act can be deemed to have set the compliance period within the attached period when imposing the matter.

③ The instant additional matters to be observed, which restrict a certain quantity of drinking, are contents that considerably restrict the Defendant’s freedom. When imposing such matters, not entirely imposing the remaining period that remains for more than seven years, but also examining whether the pertinent period of compliance can be set within the period of attachment. Meanwhile, the probation office may guide the Defendant during the period of compliance and, if it is deemed necessary to ensure the same matters to be observed thereafter, achieve the proper probation of the Defendant by filing a request again with the prosecutor for additional matters to be observed.

④ In light of the aforementioned circumstances and the judgment on the merits, comprehensively taking into account various circumstances, including the fact that such matters to be observed were not imposed, due to the defendant's behavior during the period of attachment, the addition to the defendant's matters to be observed, such as the statement in attached Form 3, but the period of compliance is determined to be appropriate for a year.

4. Conclusion

If so, the order of the court below is unfair in conclusion, and thus, it is unfair to cancel this conclusion, and the defendant shall set a compliance period of one year within the scope of the electronic tracking device attachment period of this case and add matters to the same as the entries in attached Form 3.

Judges Kang Young-chul (Presiding Judge)