Whether Article 5-2 (4) of the former Act on the Aggravated Punishment, etc. of Specific Crimes is a reflective measure taken from the fact that the previous measure that requires the deletion of Article 5-2 (4) to punish “an inducement for the purpose of indecent act” is excessive and whether the new Act is applied pursuant to Article 1(2) of the Criminal Act

Article 5-2(4) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 11731, Apr. 5, 2013) provides that “any person who commits a crime under Article 288, 289, or 292(1) of the Criminal Act shall be punished by imprisonment for life or for at least five years.” Article 288(1) of the former Criminal Act (amended by Act No. 11731, Apr. 5, 2013) provides that “Any person who captures or induces another person for the purpose of sexual intercourse, or for profit shall be punished by imprisonment for a limited term of at least one year.” However, Article 5-2(4) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 11731, Apr. 5, 2013) provides that “Any person who has induced another person to commit an indecent act for profit or for not more than one year after having committed such an indecent act.”

Articles 1(2) and 288(1) of the Criminal Act; Article 288(1) of the former Criminal Act (Amended by Act No. 11731, Apr. 5, 2013); Article 5-2(4) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 11731, Apr. 5, 2013);

Defendant

Defendant and the respondent for attachment order

Attorney Kim Jong-soo

Seoul High Court Decision 2013No442, 2013 Jeonno41 decided April 11, 2013

The judgment below is reversed and the case is remanded to Seoul High Court.

Judgment ex officio is made.

1. In a case where the evaluation of acts deemed a crime in the past is different from that of the past according to the changes in the legal ideology, which served as the reason for the enactment of penal statutes, and the punishment itself was recognized as a crime, or where the Acts and subordinate statutes were amended or amended in light of reflective consideration that the punishment was excessive, the new law shall be applied in accordance with Article 1(2) of the Criminal Act (see, e.g., Supreme Court Decisions 2003Do2770, Oct. 10, 2003; 2009Do12930, Mar. 11, 2010).

2. A. According to the reasoning of the lower judgment, the lower court upheld the first instance judgment convicting the Defendant and the person subject to a request to attach an attachment order (hereinafter “Defendant”) of each of the instant facts charged by applying Article 5-2(4) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 11731, Apr. 5, 2013; hereinafter “former Act on the Aggravated Punishment, etc.”) and Article 288(1) of the former Criminal Act (Amended by Act No. 11731, Apr. 5, 2013; hereinafter the same).

B. Article 5-2(4) of the former Act on the Aggravated Punishment, etc. of Specific Crimes provides that “any person who commits a crime under Article 288, Article 289, or Article 292(1) of the Criminal Act shall be punished by imprisonment with prison labor for life or for not less than five years.” Article 288(1) of the former Criminal Act provides that “Any person who captures or induces another for the purpose of engaging in indecent act, sexual intercourse, or profit-making shall be punished by imprisonment with prison labor for not less than one year.” However, Article 5-2(4) of the former Act on the Aggravated Punishment, etc. of Specific Crimes, which was enforced prior to the pronouncement of the lower judgment (amended by Act No. 11731, Apr. 5, 2013) provides that “Any person who captures or induces another person to commit an indecent act, sexual intercourse, marriage, or profit-making shall be punished by imprisonment with prison labor for not less than one year but not more than ten years,” and thus, Article 288(1) of the former Criminal Act provides that an indecent act constitutes an indecent act or indecent act.

Therefore, among the facts charged in this case, each act of inducing the victim for the purpose of indecent act cannot be subject to aggravated punishment pursuant to the former Act on the Aggravated Punishment, etc. of Specific Crimes. Nevertheless, the judgment of the court of first instance that applied the provisions of the former Act on the Aggravated Punishment, etc. of Specific Crimes to the above part of the facts charged is justified, and the court below erred

C. The lower court imposed a single sentence on the Defendant on the grounds that the aforementioned part of the facts charged and the remaining facts charged are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the remainder of the facts charged as well as the aforementioned part of the facts charged should also be reversed. Meanwhile, inasmuch as the case pertaining to a disclosure order and notification order under Articles 38 and 38-2 of the Act on the Protection of Children and Juveniles against Sexual Abuse is an incidental disposition that is rendered simultaneously with the judgment of the sexual crime case, the part of the disclosure order and notification order should also be reversed as long as the part concerning the sexual crime is reversed. Furthermore, as long as the Defendant case, which is the main case, is reversed, the order to attach an electronic tracking device should also be reversed.

3. Therefore, without further proceeding to decide on the grounds of appeal, the judgment 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 Lee Sang-hoon (Presiding Justice)