Whether the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders was amended to provide for the extension of the period of attachment order is against the principle of prohibition of retroactive legislation (negative)

Article 9(1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, Article 3 of the Addenda ( April 15, 2010), Article 1(1) of the Criminal Act, Article 13(1) of the Constitution of the Republic of Korea

Defendant

Defendant and the respondent for attachment order

Attorney Park Do-young

Daegu High Court Decision 2010No142, 2010No2 decided August 26, 2010

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the claim of mental disability

According to the reasoning of the judgment below, the court below determined that the defendant and the person requested to attach an attachment order (hereinafter referred to as "defendant") did not seem to lack the ability to discern the object at the time of the crime of this case and make decisions.

In light of the relevant legal principles and records, the judgment of the court below is just, and there is no error of law such as misunderstanding of legal principles as to mental or physical disability as asserted in the ground of appeal.

2. As to the assertion of violation of the principle of retroactive prohibition of legislation

The electronic monitoring system under the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders refers to a kind of security measure aimed at protecting citizens from sexual crimes by taking an additional measure that enables a person to wear an electronic device that enables him/her to verify his/her location by tracking the prevention of recidivism and re-socialization through character and behavior correction. In full view of the purpose and character of such electronic monitoring system and the provisions, contents and purport of the aforementioned Act regarding its operation, etc., the electronic monitoring system is distinct from a punishment that is a post-disposition that compels liability for the principal purpose of responding to a person who committed a crime, and its essence differs from that of a punishment that is ex post facto disposition that compels his/her responsibility, and thus, the principle of prohibition of retroactive legislation regarding punishment is not applied. Therefore, even if the Act was amended to extend the period of attachment order, it does not violate the principle

Therefore, other grounds of appeal cannot be accepted.

3. As to the assertion of unreasonable sentencing

Examining various circumstances that form the conditions for sentencing as shown in the records, such as the Defendant’s age, character and conduct, environment, motive, means and process of committing a crime, and circumstances after committing a crime, it is extremely unreasonable for the lower court to maintain the first instance judgment that sentenced the Defendant to a punishment of 10 years. The allegation in the grounds of appeal as to this is without merit.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)