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(영문) 서울고등법원 2013.05.09 2012노4324
성폭력범죄의처벌및피해자보호등에관한법률위반(주거침입강간등)등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for four years.

For a period of 10 years, the information on the defendant.

Reasons

1. The summary of the grounds for appeal against the defendant case (e.g., a two-year imprisonment and a ten-year notice of disclosure of information) sentenced by the court below to the defendant and the person subject to a request to attach an attachment order (hereinafter referred to as "the defendant"), is too unreasonable.

2. Ex officio determination

A. On March 11, 2013, the prosecutor filed a request for an attachment order with respect to the Defendant on March 11, 2013, and this court decided to hold a joint hearing on the case of the Defendant and the case for the attachment order. The case for the attachment order shall be tried and sentenced simultaneously with the Defendant’s case (see, e.g., Supreme Court Decision 201Do453, Apr. 14, 201); and as seen below, the court may accept the request for the attachment order, and thus, the lower judgment was no longer maintained in this respect.

B. On this issue, the defense counsel asserts that the prosecutor's request for the attachment order of the location tracking device in this case where only the defendant appealed, and that the court's addition of the attachment order of the location tracking device without the judgment of the court below violates the principle of prohibition of disadvantageous alteration under Article 368 of the Criminal Procedure Act and infringes the defendant's right to appeal and the right to appeal.

Article 5(5) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders provides that “The request for an attachment order under paragraphs (1) through (4) shall be made by the time the argument is concluded in the appellate trial of the specific criminal case in which the prosecution is instituted.” However, there is no limitation that the Defendant cannot request an attachment order in the case where only the Defendant appealed. The above provision allows the appellate trial to request an attachment order of the location tracking device, recognizing the seriousness of the sex offense damage, and it is revealed that the time when the request for the attachment order of the electronic device was made only in the appellate trial.

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