[1] The criteria and method for determining whether to change disadvantage in a case where the defendant requested a formal trial against a summary order

[2] In a case where a summary order of a fine of two million won for a crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse was issued, and the defendant applied for formal trial, and the first instance court and the lower court imposed a fine of two million won and imposed an order to complete a sexual assault treatment program for 20 hours concurrently, the case holding that the issuance of a new order to complete a program while imposing a fine of the same fine as the fine specified in the summary order is not permitted since the new order to complete a program was modified disadvantageously to the defendant in light of the whole

[1] Article 457-2 of the Criminal Procedure Act / [2] Article 10(1) (see current Article 13(1)) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012); Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 457-2 of the Criminal Procedure Act

[1] Supreme Court Decision 2009Do10754 Decided December 24, 2009 (Gong2010Sang, 293) Supreme Court Decision 2009Do12967 Decided February 11, 2010, Supreme Court Decision 2010Do7955 Decided November 11, 2010, 2010Do466 Decided December 201, 201

Defendant

Defendant

Attorney Park Jong-won

Daejeon District Court Decision 2013No1714, 2915 decided February 12, 2014

All of the judgment of the court below and the judgment of the court of first instance against the defendant shall be reversed. The defendant shall be punished by a fine of 2,00,000,000. Where the defendant fails to pay the above fine, 50,000 won shall be converted into the old house for the period of one day.

1. Judgment on the grounds of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court is justifiable to have found the Defendant guilty of the facts charged in the instant case on the grounds stated in its reasoning, and contrary to what is alleged in the grounds of appeal, there were no errors by violating logical and empirical rules

2. Ex officio determination

A. In a case where a defendant requests a formal trial with respect to a summary order, no more severe punishment than that of the summary order shall be sentenced (Article 457-2 of the Criminal Procedure Act). Determination as to whether such punishment has been changed disadvantageous to the defendant should be made by considering the severity of the punishment under the Criminal Act, not whether it is in fact disadvantageous to the defendant, separately and formally, but rather, considering the overall text of the order (see Supreme Court Decision 2009Do12967, Feb. 11, 2010, etc.).

B. According to the records, the crime of this case was committed by the defendant as the defendant had committed the act of purchasing the sex of the juvenile, and upon the issuance of a summary order of a fine of 2 million won against the defendant, the defendant applied for formal trial. The first instance court sentenced the defendant to a fine of 2 million won as stated in the summary order, and ordered the defendant to complete the completion of sexual assault treatment program for 20 hours by applying Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and appealed by the defendant.

The court below reversed ex officio the judgment of the court of first instance on the ground that there is a misapprehension of the legal principle on the part of the judgment of the court of first instance which the defendant judged as a person subject to registration of personal information, and sentenced a fine of two million won in the same manner as the judgment of the court of first instance, and ordered the defendant to complete

C. Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse provides that “where a court declares a conviction against a person who commits a sex offense against a child or juvenile, it shall concurrently order the person to attend a lecture or to complete a sexual assault treatment program necessary for the prevention of recidivism within 500 hours.” Such order to complete a program is a type of community treatment against so-called criminal, which is not a punishment itself, but a security measure, but a practical restriction on physical freedom by having him/her undergo a mandatory completion of a sexual assault treatment program.

In light of the above legal principles, the first instance court in this case where only the Defendant requested formal trial with regard to a summary order of KRW 2 million, and the lower court imposed a fine identical to the fine prescribed in the summary order, and imposed a new order to complete a program concurrently is deemed to have changed to the disadvantage of the Defendant, and thus, is not allowed.

3. Conclusion

Therefore, all of the judgment of the court below and the judgment of the court of first instance are reversed, and this case is deemed to be sufficient for this court to render a judgment, and it is directly decided as follows pursuant to Article 396 (1) of the Criminal Procedure Act.

The gist of the grounds for appeal by the defendant is that the defendant was guilty of the facts charged in this case by misunderstanding the facts, although he did not have any fact that he met Kim ○ (n, 15 years of age) for the purchase of sex at the time of this case, he returned to his house without drinking Kim ○, and had not engaged in the act of purchasing the sex of juveniles, the court of first instance found the defendant guilty of the facts charged in this case. However, as seen earlier, this part of the grounds for appeal are without merit.

However, the judgment of the court of first instance ex officio is reversed, since it cannot be maintained for the same reasons as the judgment of the court of first instance on the part that the defendant judged as a person subject to registration of personal information among the reasons as mentioned above and the judgment of the court of first instance as a person subject to registration

The summary of the facts constituting the offense against the defendant recognized by the court and the summary of the evidence is the same as that of the judgment of the court of first instance, and thus, they are cited in accordance with Articles 399 and 369 of the Criminal Procedure Act.

Article 10(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11572, Dec. 18, 2012); Article 10(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11572, Dec. 18, 201); Article 70 and Article 69(2) of the Criminal Act provide that the defendant shall be confined to a fine of KRW 2 million if the defendant fails to pay a fine, and the defendant shall be confined to a workhouse for the period calculated by converting the amount of KRW 50,000 into one day by the assent of all participating Justices

Justices Jo Hee-de (Presiding Justice)