Article 288(1) of the Criminal Act does not apply to the original judgment, and the former Act on the Aggravated Punishment, etc. of Specific Crimes on April 5, 2013.

The grounds of emergency appeal are examined.

Of the facts charged in the instant case, on April 12, 2012, the lower court rendered a guilty judgment 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) to the crime of kidnapping the victim F (the age of eight) for the purpose of indecent act, and selected a limited imprisonment.

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 of the Criminal Act shall be punished by imprisonment 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 person for the purpose of engaging in indecent act, sexual intercourse, or profit-making shall be punished by imprisonment for a limited term of not less than one year." However, Article 5-2 (4) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which was enforced prior to the pronouncement of the original judgment (amended by Act No. 11731, Apr. 5, 2013), and Article 288 (1) of the Criminal Act (amended by Act No. 11731, Apr. 5, 2013) provides that "any person who captures or induces another person for sexual act, marriage or profit-making shall be punished."

However, its purport is to regard it as an anti-sexual measure derived from the fact that the previous measure that requires an aggravated punishment of imprisonment with prison labor for life or for not less than five years is excessive even though the form and motive of inducing indecent act are diverse, and thus, it constitutes “when the act does not constitute a crime or a punishment is more severe than that of the former Act” under Article 1(2) of the Criminal Act.

(See Supreme Court Decision 2013Do4862 Decided July 11, 2013). Accordingly, the Defendant’s indecent act among the instant facts charged is aimed at committing an indecent act.