Defendant

Both parties

Park Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin,

Attorney Choi Jin-sik

Gwangju District Court Decision 2015 Godan5049, 2016 Godan3585 (Joint Judgment) Decided September 29, 2016

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment with prison labor for up to six months.

Of the facts charged in the instant case, the charge of violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Confidentiality, etc.) due to the absence of the competent police office by May 29, 2016 shall be acquitted.

1. Summary of grounds for appeal;

A. Defendant

The punishment of the court below (six months of imprisonment) is too unreasonable.

(b) Prosecutors;

The sentence of the court below is too unhued and unfair.

2. Judgment ex officio on the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Confidentiality, etc.) due to a absence of the competent police office by May 29, 2016

The grounds for appeal by the defendant and prosecutor shall be examined ex officio prior to judgment.

A. Summary of this part of the facts charged

On April 17, 2015, the Defendant first registered personal information on May 29, 2015, which was sentenced to a five-year suspended sentence of imprisonment for rape, etc. by the Gwangju District Court, and the sentence became final and conclusive.

A person subject to the registration of personal information shall attend a police agency having jurisdiction over his/her domicile every one year from the date of the initial registration and have the head of a police agency take his/her front, front, front, rear, back, and telegraphic photo and store and keep it in electronic form.

Nevertheless, the Defendant did not appear at the competent police office by May 29, 2016 without justifiable grounds.

B. Determination

Article 43(4)1 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 14412, Dec. 20, 2016; hereinafter “former Sexual Violence Punishment Act”) provides that “the time when a person subject to registration of personal information appears in a police agency and takes and stores his/her photograph” (hereinafter “the time of performing the above obligation”) shall be “one year from the first registration date” and the fact that a person subject to registration of personal information shall take photographs by attending a police agency each year after the first registration date can be understood and predicted from the perspective of the general public.

However, with respect to the specific point of time of the performance of the obligation, the above provision does not clearly stipulate the time and completion period, and ① the date following the first registration date shall be interpreted as the one-year period (e.g., from May 30, 2015 to May 29, 2016), or (ii) the term “one-year period” may be interpreted as the period before the year in which the first registration date falls (e.g., from January 1, 2016 to December 31, 2016), and (iii) the first registration date may be interpreted as the one-year period from the first registration date (e.g., the first registration date in this case).

Article 43(4) of the former Sexual Violence Punishment Act (amended by Act No. 14412, Dec. 20, 2016; hereinafter “new Act”) was amended as follows to bring confusion to the calculation of the period of time due to the uncertainty of the period of fulfillment of the obligation. This is also based on the proposal to amend the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (1655) submitted by the Government on August 18, 2016.

(4) Where a person subject to registration submits basic personal information pursuant to paragraph (1), he/she shall be present at a police agency having jurisdiction over his/her domicile pursuant to paragraph (1) from the following year to December 31 of each year, and shall have the head of a police agency take photographs of his/her fixed area, on the opposite side, on the opposite side, on the opposite side, and a general local photo, and keep and preserve them in electronic records: Provided, That where a person subject to registration is detained in a correctional institution, etc., the head of a correctional institution, etc. shall keep and preserve them in electronic records by taking a new photograph of the fixed area, on the opposite side, on the opposite side, on the opposite side

Article 43(4) of the former Sexual Violence Punishment Act is a measure taken based on reflective consideration of the uncertainty of the period of performing the duty. According to Article 43(4) of the same Act, the failure to take photographs by the Defendant who first registered personal information on May 29, 2015 to appear in a police office until May 29, 2016 constitutes “where the act does not constitute a crime due to a change in the law after the crime.” Therefore, pursuant to Article 1(2) of the Criminal Act, the Defendant shall be pronounced not guilty by applying Article 43(4) of the same Act. However, the lower court found the Defendant guilty of this part of the facts charged and the remaining crimes for which the Defendant was found guilty pursuant to Article 37(1)2 of the Criminal Act, and thus, the lower judgment cannot be maintained in this respect.

3. Conclusion

Therefore, the judgment of the court below is reversed ex officio pursuant to Article 364(2) of the Criminal Procedure Act without examining the defendant and the prosecutor's allegation of unfair sentencing, and the judgment of the court below is reversed, and it is again decided as follows.

1. Injury;

Around 23:50 on October 25, 2015, the Defendant suffered injury on the part of the Defendant, who was placed in the Dong-gu Seoul Special Metropolitan City ( Address 1 omitted), on the ground that the Nonindicted Party (here 34 years of age), who was a female friendly victim (here here here, here, here, here, here son) was the Defendant her hump, thereby resulting in the Defendant’s injury, such as a non-feld breath of the non-pelel that requires approximately three weeks of medical treatment.

2. Violation of the former Sexual Violence Punishment Act (Confidentiality, etc.);

On April 17, 2015, the Defendant first registered personal information on May 29, 2015, which was sentenced to a five-year suspended sentence of imprisonment for rape, etc. by the Gwangju District Court, and the sentence became final and conclusive.

Where a person subject to registration of personal information is changed, he/she shall submit the reason and details of such change to the head of the competent police office within 20 days from the date the reason for such change occurred

Even if the Defendant changed his/her residence from the last day of March 2016 to the Gwangju Mine-gu ( Address 3 omitted), the Defendant did not submit the changed details to the head of the competent police station by August 12, 2016.

1. Defendant's legal statement;

1. Statement of the police statement of the Nonindicted Party

1. A written diagnosis of injury;

1. Investigation report (to receive the first written submission of personal information of a criminal suspect and attach copies thereof);

1. A report on investigation (in the case of changes in the residence);

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 257(1) of the Criminal Act (the point of injury), Article 50(3)2, and Article 43(3) of the former Punishment of Sexual Violence Act (the point of failure to submit modified information), the choice of each imprisonment penalty.

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

The following facts are favorable to the defendant. The defendant led to confession and reflects on the crime of this case. The court below did not want the punishment of the defendant by mutual consent with the victim Nonindicted Party.

On the other hand, the following is disadvantageous to the Defendant. The Defendant committed the instant crime without being aware of during the period of suspension of execution. The Defendant again refused to attend the court of the original instance and obstructed the progress of the trial procedure by failing to attend the court. The Defendant is punished for violent crimes.

In addition, the punishment as ordered shall be determined in consideration of the circumstances of the crime of this case, the circumstances after the crime of this case, the age, character and conduct, the environment, etc. of the defendant, and the various sentencing conditions shown in the records and pleadings

The summary of this part of the facts charged is as stated in the above "paragraph (a) of Article 2," which constitutes a case that does not constitute a crime for the same reason as seen in Article 2-2 (b) of the above "Article 325 of the Criminal Procedure Act, and thus, is acquitted pursuant to the former part of Article 325

Judges Kim Dong-chul (Presiding Judge)

(1) Article 43 (Duty to Submit Personal Information) (4) A person subject to registration shall be present at a police agency having jurisdiction over his/her domicile every one year from the date of the initial registration and have the head of a police agency take photographs of his/her own front, front, front, and front, and front, and keep them in electronic records: Provided, That where a person subject to registration is detained in a correctional institution, etc., the head of a correctional institution, etc. shall take photographs of the front, front, front, front, and front, and front, and keep them in electronic records before release or medical treatment and custody is terminated.