[1] Where a judgment of suspended sentence is rendered on a sex offense subject to registration under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, whether a person subject to registration is obligated to submit personal information as a person subject to registration immediately after the judgment becomes final and conclusive (affirmative), and whether a person is exempted from the obligation to submit personal information after two years have elapsed since the judgment of suspended sentence became final and conclusive (affirmative) / Whether the grounds of appeal disputing errors in the subject, content, procedure, etc. in relation to the notification of

[2] In a case where a suspended sentence is rendered, whether a sentence of sentence should be imposed in the grounds for the judgment (affirmative), and whether a sentence should be imposed in addition to the amount of fine (affirmative)

[1] Articles 51, 59, 60, and 61 of the Criminal Act; Articles 16(2), 42(1) and (2), 43(1), (3), and (4), and 45(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes; Article 383 subparag. 1 of the Criminal Procedure Act / [2] Article 59 of the Criminal Act

[1] Supreme Court Decision 2013Do14610 Decided February 13, 2014 (Gong2014Ha, 2396) Decided November 13, 2014 / [2] Supreme Court Decision 86Do2654 Decided January 19, 198 (Gong1988, 426) (Gong198, 426) Supreme Court Decision 201Do234 Decided June 12, 2014

Defendant

Prosecutor

Attorney Lee Bo-young

Seoul Northern District Court Decision 2014No919 decided October 23, 2014

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

1. Judgment on the grounds of appeal

A. Articles 42(1), 43(1), and 45(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”) provide that a person whose judgment of conviction has become final and conclusive due to a sex offense subject to registration shall submit personal information to the head of the competent police office within 30 days from the date the person subject to registration becomes final and conclusive, and the Minister of Justice shall preserve and manage the registered information of the person subject to registration for 20 years from the date of initial registration. Article 43(3) and (4) of the same Act provides that a person subject to registration shall submit the submitted personal information within 20 days from the date on which the ground for change and change occur, and shall be present at the competent police office every one year from the date of initial registration and shall photograph the personal information of the person subject to registration. Article 42(2) of the same Act provides that the court shall inform the person subject to registration of the fact that the person subject to registration is a sex offense subject to registration.

Meanwhile, when a sentence of imprisonment or imprisonment without prison labor for not more than one year, suspension of qualifications, or fine is to be imposed and if the circumstances of the sentence are remarkable, taking into account the matters as prescribed in Article 51 of the Criminal Act, the suspended sentence may be imposed. Such judgment of the suspended sentence is to be deemed to be acquitted when one of the conviction who is a judgment of the suspended sentence becomes final during the suspension of qualifications or more severe punishment, or when a prior conviction resulting in suspension of qualifications or more severe punishment is discovered during the suspension of qualifications, or when two years have elapsed since the date of the suspended sentence without any such reason

However, Article 16(2) of the Sexual Violence Punishment Act explicitly excludes a suspended sentence from a judgment of conviction that requires an order to attend a course and an order to complete a program, but does not exclude a suspended sentence from a judgment of conviction that is subject to the registration of personal information and the obligation to submit personal information under Articles 42(1) and 43(1) of the same Act.

In light of the content and form and purport of the Sexual Violence Punishment Act, as well as the legal nature of the judgment on the suspension of sentence, a court does not separately impose the personal information on a person subject to registration, but if a judgment of conviction is finalized for a sex offense subject to registration, the judgment of suspension of sentence shall not be deemed excluded from the above judgment of conviction. Therefore, even in cases where a judgment of suspension of sentence is rendered on a sex offense subject to registration, the judgment of suspension of sentence becomes final and conclusive, and the person subject to registration is immediately obligated to submit personal information, and if a judgment of suspension of sentence is deemed acquitted for two years after the judgment of suspension of sentence becomes final and conclusive, it is interpreted that the person subject to registration is exempted from the obligation to submit personal information as a person subject to registration (see Supreme Court Decision 20

In addition, since a court does not separately impose a duty to submit personal information on a person subject to registration, it is meaningful that a court that declares a judgment of conviction must inform that a person subject to registration should submit personal information. Therefore, even if a court erred in the omission of notification or its content, etc. while rendering a judgment of conviction, the court may notify the person subject to registration of the duty to submit personal information by modifying the legitimate contents and by newly notifying the person subject to submission of personal information without any necessity to reverse the judgment. Thus, the ground of appeal disputing errors in the subject, content, procedure, etc. in relation to the notification of the duty to submit personal information of the court of first instance or the court below is related to matters that do not affect the judgment, and it cannot be a legitimate ground of appeal (see, e.g., Supreme Court Decision 2013Do14610, Feb. 13, 2014).

B. According to the records, the first instance court convicted the Defendant of the facts charged in this case, which is subject to the registration of personal information under the Sexual Violence Punishment Act, but suspended the sentence of a fine of two million won, and notified the Defendant that personal information will be submitted only when the suspension of sentence is invalidated. The lower court rejected the prosecutor’s allegation in the grounds of appeal on unfair sentencing, etc. and upheld the first instance judgment.

C. According to the legal principles as seen earlier, even if the judgment of suspended sentence against the defendant was rendered final and conclusive, it was erroneous in the judgment that the duty to submit personal information arises only when the suspended sentence is invalidated. However, the ground of appeal of this case seeking the reversal of the judgment of the court of first instance, which maintained the judgment of the court of first instance on the ground of error in the content of notification of personal information to be submitted to the court of first instance, is not affected by the judgment, and thus, it cannot be accepted as it does not constitute a legitimate ground of appeal as seen above.

2. Ex officio determination

Even in cases where a judgment is suspended in accordance with Article 59 of the Criminal Act, the sentence shall be determined with respect to the suspended sentence. As such, the judgment of suspended sentence shall provide for the sentence for the reason thereof, and in cases where the sentence is a fine, the sentence shall be subject to a fine, not only shall the amount of the fine, but also the disposition of detention for exchange (see, e.g., Supreme Court Decisions 86Do2654, Jan. 19, 198; 2014Do234, Jun. 12, 2014).

However, although the first instance court suspended the sentence against the defendant while setting a fine of two million won for the reason of the decision, and did not make any decision as to the period of custody in the event of failure to pay a fine, the lower court rendered a judgment dismissing the prosecutor’s appeal without correcting such violation of the first instance court’s illegality. Thus, the lower court erred by misapprehending the legal doctrine on the procedure of a decision that suspended the sentence, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)