[1] The standard and method for determining disadvantage change in a case where only the Defendant appealed / The nature of “order to restrict employment” under Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (=security disposition)

[2] The case holding that in a case where the court below reversed the judgment of the court of first instance ex officio and recognized the conviction of the defendant who committed a sex offense prior to the enforcement of the Act on the Protection of Children and Juveniles against Sexual Abuse, prior to the enforcement of the Act on the Protection of Children and Juveniles against Sexual Abuse, and ordered a fine of 5 million won and 40 hours to complete a sexual assault treatment program, which was found guilty prior to the enforcement date of the Act on the Protection of Children and Juveniles against Sexual Abuse, and only the defendant appealed against this, and the court below sentenced the judgment after the enforcement date of the Act on the Protection of Sexual Violence, and issued an employment restriction order for three years along with the same punishment as the judgment of the court of first instance, where the court below erred by misapprehending the legal principles as to the principle of prohibition of disadvantageous alteration, in a case where the court below erred by misapprehending the legal principles

[1] Article 368 of the Criminal Procedure Act / [2] Article 10(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 15792, Oct. 16, 2018); Article 56(1) (see current Article 56(1) and (2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 15352, Jan. 16, 2018); Article 56(1) and (2) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Articles 1, 3, 4(1)3(c) and 5 of the Addenda (Amended by Act No. 15352, Jan. 16, 2018); Article 368 of the Criminal Procedure Act

[1] Supreme Court Decision 2012Do8736 Decided September 27, 2012 (Gong2018Ha, 2140) Decision 2016Do15961 Decided October 4, 2018 (Gong2018Ha, 2140)

Defendant

Defendant

Law Firm Cheongn Law, Attorney Lee Dong-soo

Changwon District Court Decision 2018No1543 decided March 14, 2019

The judgment of the court below is reversed, and the case is remanded to Changwon District Court.

The grounds of appeal are examined.

1. Determination on the part of the defendant's case

On the grounds indicated in its reasoning, the lower court convicted the Defendant of the instant facts charged. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the occupational force in the crime of indecent act by force by occupational force,

2. Determination on the part concerning an employment restriction order

(a) Progress to amend regulations on employment restriction orders;

(1) Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15352, Jan. 16, 2018) provides that a person who was sentenced to a punishment or medical treatment and custody for a sex offense against a child or juvenile or a sex offense against an adult (hereinafter “sexual crime”) shall not be able to operate a child or juvenile-related institution, etc., or to provide employment or actual labor to a child or juvenile-related institution, etc., for ten years from the date the execution of such punishment or medical treatment and custody is terminated, suspended, or exempted (hereinafter “previous provision”).

(2) The Constitutional Court ruled that the previous provision imposing an employment restriction of 10 years uniformly on the basis of the past records of sexual crime infringes on the freedom of occupation (see, e.g., Constitutional Court en banc Decision 2015Hun-Ma98, Apr. 28, 2016). Accordingly, pursuant to Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “amended Act”) (hereinafter “amended Act”), when a court issues a sentence of imprisonment or medical treatment and custody due to a sex offense, it held that the court should operate a child or juvenile-related institution, etc., or, at the same time, rendered an employment restriction order to prevent employment or actual labor (hereinafter “employment restriction order”) from being suspended or exempted from the execution of all or part of the sentence or medical treatment and custody (hereinafter “the period of employment restriction”). However, the court held that the employment restriction order should not be imposed in a case where the employment restriction order should not be imposed.

(3) Meanwhile, the Addenda of the amended Act concerning the enforcement date, scope of application, etc. shall be as follows. The amended Act shall enter into force six months after the enforcement date of the amended Act (Article 1). The amended Act shall also apply to persons who committed sex offenses before the enforcement date of the amended Act and who did not receive a final and conclusive judgment (Article 3). Notwithstanding the previous provisions, the period of restriction on employment of persons subject to employment restrictions pursuant to the previous provisions shall be five years, three years, and one year according to the scope of the final and conclusive principal sentence (in cases of persons subject to imprisonment, imprisonment without prison labor, or imprisonment without prison labor, or medical treatment and custody for more than three years and for whom the final and conclusive sentence has become final and conclusive after the completion, postponement, or exemption of the execution (hereinafter the same shall apply) of all or part of the relevant punishment or medical treatment and custody, and three years, and one year, three years, and one year, in cases where it is favorable to apply the previous provisions (Article 4(1)3).

B. Facts of recognition

According to the records, the following facts are revealed.

(1) The gist of the instant facts charged is that “the Defendant committed an indecent act by force on July 11, 2017 by force against the victim’s protection and supervision due to business relations, such as taking the victim’s hand on the back seat of the victim’s vehicle, taking the victim’s bucks and chests, and making dancing twice.”

(2) On June 14, 2018, prior to the enforcement of the amended Act, the first instance court convicted the Defendant of the instant facts charged, sentenced the Defendant to a fine of KRW 5 million and ordered the completion of sexual assault treatment programs for 40 hours. On this basis, only the Defendant appealed on the ground of mistake of facts and unreasonable sentencing.

(3) The lower court, which rendered the judgment on March 14, 2019, following the enforcement of the amended Act, reversed the first instance judgment ex officio on the grounds that the Defendant should simultaneously be sentenced to an employment restriction order with the pronouncement of the judgment in accordance with Article 3 of the Addenda to the amended Act and the amended provisions, and recognized the Defendant guilty of the facts charged in the instant case, issued the Defendant an employment restriction order for three years, along with the same punishment as the first instance judgment (a fine of KRW 5 million, a sexual assault treatment program order for 40 hours).

C. Determination

(1) With respect to a case on which only the defendant appealed an appeal, no sentence heavier than that of the judgment of the court of first instance (Article 368 of the Criminal Procedure Act). Determination as to whether a sentence has been modified disadvantageous to the defendant should be made based on the severity of the punishment under the Criminal Act, but rather on the basis of whether it is substantially disadvantageous to the defendant in light of the entire text (see Supreme Court Decision 201Do8736, Sept. 27, 2012, etc.). Meanwhile, an employment restriction order prescribed by the amended provisions is a type of treatment in society against the criminal, and has the nature of security measures, not the punishment itself, but the order is a type of treatment in society against the criminal, but is practically limited to the freedom to choose occupation by operating institutions related to children and juveniles or by preventing them from providing employment or actual labor to institutions related to children and juveniles.

(2) According to the above amended provisions and the supplementary provisions of the amended Act, if a prosecutor and the defendant did not appeal against the judgment of the court of first instance that sentenced the defendant to a fine of five million won or more and to order a sexual assault treatment program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program program

Nevertheless, the lower court, which rendered a judgment pursuant to Article 3 of the Addenda to the amended Act after the enforcement date of the amended Act, sentenced the Defendant who committed a sex crime to an employment restriction order for three years, together with the same punishment as that of the first instance court. In light of the foregoing legal principles, the sentence of employment restriction order exceeding one year when compared with the case of the first instance court’s maintenance is not permissible to be disadvantageous to the Defendant. Therefore, in so determining, the lower court erred by misapprehending the legal doctrine on the principle of prohibition of disadvantageous change, thereby adversely affecting the conclusion of the judgment, and the Defendant’s ground of appeal pointing this out

3. Scope of reversal

For the foregoing reasons, the part of the lower judgment regarding the employment restriction order should be reversed. Since the employment restriction order is an incidental disposition that the court issues simultaneously with the judgment on a certain sex offense case, the remaining part of the Defendant case shall be reversed.

4. Conclusion

Therefore, the lower judgment is entirely reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)