[1] Where a sexual crime subject to “child or juvenile” constitutes a sexual crime subject to registration under the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, etc. of Sexual Crimes, which was wholly amended by Act No. 11556, Dec. 18, 2012 and enforced June 19, 2013, whether it is subject to an order to disclose and notify the same under the same Act, etc. (negative)

[2] Whether Article 4(1) of the Addenda of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (negative) applies to a sexual crime subject to a new disclosure order and notification order under Article 42(1) of the same Act (Article 11 through 15 of the same Act) where the sexual crime is subject to a “child or juvenile” (Article 11 through 15 of the same Act)

[1] Article 10258 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 10258, Apr. 15, 2010) limits the scope of application to “a person who commits a sexual crime subject to sexual intercourse” by excluding “a person who commits a sexual crime subject to a child or juvenile” subject to an order to disclose personal information, and separately defines “a person who commits a sexual crime subject to a child or juvenile” as the subject of an order to disclose and notify the information.

In addition, Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012; hereinafter “Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes”) provide that an order to disclose and notify sexual crimes subject to registration shall be governed by the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012; hereinafter “Child Protection Act”).

Therefore, in the case of sexual crimes against children and juveniles, the disclosure order and notification order under the Act on the Special Cases of Sexual Violence, Act No. 11556, No. 11556, regardless of whether it constitutes sexual crimes subject to registration under the Act on the Special Cases of Sexual Violence, etc., Act No. 11556, even if it was committed after the enforcement of the Act on the Protection of Children's Sex Crimes, it can be an issue, but it is not an issue.

[2] Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012; hereinafter “Special Act on the Punishment, etc. of Sexual Crimes”) newly provides for a certain type of crime (which is not a sexual crime subject to an order to disclose or notify the past under Article 11 through 15 of the same Act) as a sexual crime subject to an order to disclose or notify, and Article 4(1) of the Addenda of the same Act provides that “Special Act on the Punishment, etc. of Sexual Crimes shall apply Articles 11 through 15 (referring only to an attempted crime under Article 14) to a person whose conviction has become final and conclusive as a crime, and Article 42 through 50 of the same Act shall apply to each of the above crimes (excluding the newly established Article 12 of the same Act). It shall be deemed that the Act on the Protection of Children and Juveniles against whom an order to disclose or notify was enforced separately after the enforcement of the Act.

[1] Articles 32(1) (see current Article 42(1)), 37 (see current Article 47), and 41 (see current Article 49), Article 42(1), 47(1), and 49(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11576, Dec. 18, 2012); Article 38 (see current Article 49); Article 38-2 (see current Article 50); Article 49 and 50 of the former Act on the Protection, etc. of Children and Juveniles against Sexual Abuse / [2] Articles 11, 12, 47(1), and 47(1) and 49 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes; Article 18(1) of the former Act on the Protection, etc. of Children and Juveniles against Sexual Abuse; Article 18(2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse / [12]

[1] Supreme Court Decision 201Do12296 Decided November 24, 2011 (Gong2012Sang, 100) Supreme Court Decision 201Do15062, 201Do250 Decided January 12, 2012, Supreme Court Decision 2012Do13177 Decided December 27, 2012

Defendant

Defendant

Law Firm Jeongam, Attorneys Lee Jong-hun et al.

Seoul High Court Decision 2013No2254, 2013 Jeonno250 decided October 11, 2013

The guilty portion of the judgment below is reversed, and that part of the case is remanded to the Seoul High Court.

1. Judgment on the grounds of appeal

The facts charged of photographing the camera on August 6, 2007, which the court below found guilty (hereinafter “instant crime”) is a crime under Article 14-2(1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (amended by Act No. 10258 of Apr. 15, 2010 to “Act on Special Cases concerning the Punishment, etc. of Sexual Crimes” under Article 5(10) of the Addenda of the Act on Special Cases concerning the Protection, etc. of Sexual Crimes (Act No. 10258, Apr. 15, 2010; hereinafter “Act on Special Cases concerning the Protection, etc. of Sexual Crimes”), and repealed by Article 14-2(1) of the Addenda of the Criminal Procedure Act (amended by Act No. 10261, Apr. 15, 2010; hereinafter “Act No. 2054, Dec. 21, 2007”).

However, Article 20(1) of the Act on the Special Cases of Sexual Violence (Act No. 10258) provides that “The statute of limitations on a sexual crime against a minor shall commence from the date on which the minor who suffered from the relevant sexual crime reaches the age of majority, notwithstanding Article 252(1) of the Criminal Procedure Act,” and Article 3 of the Addenda provides that “Article 20 shall apply to any sexual crime committed before this Act enters into force, which has yet to be expired.” In the case of the crime of this case where the victim was a minor on February 19, 192 and was a minor on April 15, 2010 when the Act on Special Cases of Sexual Violence (Act No. 10258), the statute of limitations has not yet expired, and it is evident that the statute of limitations has yet to run from the date on which the victim reaches the age of majority pursuant to the above provision (see Supreme Court Decision 2013Do3799, Jun. 14, 2013).

Therefore, we cannot accept the allegation in the grounds of appeal premised on the completion of the statute of limitations for the instant crime.

2. Ex officio determination

A. (1) Article 10258 of the Act on Special Cases concerning the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 9765, Apr. 15, 2010; hereinafter “Act No. 10260, Apr. 15, 2010”) separately provided that “a person who has committed a sexual crime against a child or juvenile” as the subject of disclosure order and notification order by excluding “a person who has committed a sexual crime against a child or juvenile” subject to the disclosure order and notification order of personal information. The Act on Special Cases concerning the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10260, Apr. 15, 2010; hereinafter “the Child Protection Act”).

In addition, Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012; hereinafter “Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes”) provide that an order to disclose and notify sexual crimes subject to registration shall be governed by the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012; hereinafter “Child Protection Act”).

Therefore, in the case of sexual crimes against children and juveniles, the disclosure order and notification order under the Act on Special Cases Concerning the Prevention of Sexual Violence (Act No. 11556), which is stipulated in the Act on Special Cases Concerning the Prevention of Sexual Violence (Act No. 11556), may be an issue, regardless of whether such act constitutes sexual crimes subject to registration under the Act on Special Cases Concerning the Prevention of Sexual Violence (Act No. 11572), but it shall not be subject to the disclosure order and notification order under the Act on Special Cases Concerning Sexual Violence (Act No. 11556) (see Supreme Court Decision 201Do1562, Jan. 12, 2012).

However, Article 42(1) of the Act on the Special Cases of Sexual Violence (Act No. 11556), which did not constitute a sexual crime subject to the previous disclosure order or notification order under Article 42(1) of the same Act, newly provides for a certain type of crime such as the instant crime (which is prescribed in Articles 11 through 15 of the same Act and falls under Article 14) as a sexual crime subject to the disclosure order or notification order. Article 4(1) of the Addenda provides that “The provisions of Articles 42 through 50 shall apply to a person whose conviction has become final and conclusive as a crime under the provisions of Articles 11 through 15 (limited to an attempted crime under Article 14) after this Act enters into force.” Considering that even before the enforcement of the Act on the Special Cases of Sexual Violence (Act No. 12 newly established), the aforementioned crimes (excluding Article 12 of the same Act) shall be deemed to have been committed against children and juveniles under the provisions of the Act on the Protection of Children and Juveniles against whom the Act was enacted.

(2) The Child Sex Protection Act (Act No. 9765) introduced the disclosure order system for the first time after January 1, 2010 to ensure that the Act was applied to a person whose conviction was finalized after committing a sex offense against a child or juvenile.

However, Article 3(4) of the Addenda to the Child Protection Act (Act No. 9765) and Article 5(1) of the Addenda to the Child Protection Act (Act No. 11572) provide that among the "persons subject to registration, inspection or order", Article 3(4) of the Addenda to the Act on the Protection of Juveniles against Sexual Abuse (Act No. 9765) and Article 5(1) of the Addenda to the Act on the Protection of Juveniles against Sexual Abuse (Act No. 7801, Dec. 29, 2005; hereinafter "Juvenile Protection Act") or "Juvenile against Sexual Abuse Act (wholly amended by Act No. 8634, Aug. 3, 2007; hereinafter "Act No. 8634, Feb. 4, 2008"), a person who has not yet been subject to a final judgment at the time of enforcement of the Child Protection Act or Act No. 11572 may be ordered to disclose to the public.

In light of this, in order to issue an order to disclose a crime committed before January 1, 2010, which was committed at the time of the enforcement of the Act on the Protection of Juveniles from Sexual Abuse, Article 7801 of the Act on the Protection of Juveniles from Sexual Abuse, the requirements for registration, perusal or perusal order under Article 7801 of the Act on the Protection of Juveniles from Sexual Abuse should be met (see Supreme Court Decisions 2013Do5540, 2013Do171, Aug. 22, 2013, etc.).

(3) Article 10260 of the Child Protection Act (Act No. 10260) newly established a notification order, and Articles 1 and 4 of the Addenda provide that a notification order may be issued for the first time from a person who committed a sexual crime against a child or juvenile on or before January 1, 201, and Article 8 of the Addenda of the Child Protection Act (Act No. 11572) also provides that “a person who committed a sexual crime against a child or juvenile and whose conviction has not been confirmed yet” shall be subject to certain conditions to “a person who, before January 1, 2011, committed a sexual crime against whom he/she was convicted and whose conviction has not been determined, shall not be subject to a notification order immediately and simultaneously with a judgment.

If so, even after the enforcement of the Child Protection Act (Act No. 11572), there is still a provision of the Addenda to the Child Sex Protection Act (Act No. 10260), only a person who commits a sexual crime against a child or juvenile may be sentenced to an order of notification simultaneously with a judgment (see Supreme Court Decision 2013Do1439, Feb. 13, 2014; 2013Do275, Feb. 13, 2014).

B. The instant crime was committed against children and juveniles on August 6, 2007, and does not meet the requirements for registration and inspection under the Act No. 7801, which was enforced at that time. According to the relevant legal principles as seen earlier, it is not subject to an order for disclosure and notification under the provisions of the Act on Special Cases of Sexual Violence (Act No. 11556), as well as the Act No. 11572, supra.

Nevertheless, the lower court determined that with respect to the instant crime, the Defendant becomes subject to disclosure order and notification order as prescribed by Article 4(1) of the Addenda of the Act on Special Cases of Sexual Violence (Act No. 11556). In so doing, the lower court erred by misapprehending the legal doctrine on the requirements for disclosure order and notification order concerning sexual crimes against children and juveniles, and the scope of application of Article 4(1) of Addenda of the Act on Special Cases of Sexual Violence (Act No. 11556), thereby adversely affecting the conclusion of the judgment. Ultimately, the part on disclosure order

C. Furthermore, since an order to disclose or notify information under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes is an incidental disposition to be sentenced simultaneously with a judgment on the relevant sexual crime case, if all or part of the order to disclose or notify is unlawful, the entire part of the order shall be reversed, even if there is no illegality in

3. Conclusion

Therefore, the conviction portion of the judgment below is reversed, and this part of 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 Jo Hee-de (Presiding Justice)