Whether the provision that increases the minimum limit of the period of attachment of an electronic tracking device prescribed in the proviso to Article 9(1) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders is retroactively applied to a specific crime committed against a person under the age of 19 years prior to the enforcement of the same Act (negative)

Article 5(1) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders provides that a person who commits a sexual crime against a person under the age of 19 ( Subparagraph 4) or who is deemed likely to recommit a sexual crime ( Subparagraph 5) may request an order to attach an electronic device to a person who is deemed likely to recommit a sexual crime; the proviso to Article 9(1) provides that “where a specific crime is committed against a person under the age of 19, the lower limit of the period of attachment shall be twice the lower limit of the period of attachment stipulated in each subparagraph of Article 9(1), the former Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (amended by Act No. 1158 on Dec. 18, 2012) shall be applied to a person under the age of 19 (Article 9(1) of the Act on the Protection of Probation and Electronic Monitoring, etc. of Specific Criminal Offenders; that person’s request to attach an attachment order to a specific criminal offender shall be mitigated and expanded, and that person subject to Article 9(15) of the Act prior to the aforesaid amendment of the Act.

Article 1(1) of the Criminal Act; Articles 5(1)4 and 5(5), and 9(1) of the Act on Probation, Electronic Monitoring, etc. of Specific Criminal Offenders; Article 2(2) of the Addenda (Act No. 11558, Dec. 18, 2012); Articles 5(1)4 and 9(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012); Article 3(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 1156, Dec. 18, 2012)

Defendant

Defendant and the respondent for attachment order

Attorney Yellow Jin-ho

Busan High Court Decision 2012No368, 2012No46 decided May 3, 2013

The part of the judgment below regarding the claim for attachment order is reversed, and that part of the case is remanded to Busan High Court. The appeal against the prosecuted case is dismissed.

1. Determination of the grounds of appeal as to the accused case

According to the records, the defendant and the person to whom the attachment order was requested (hereinafter referred to as the "defendant") appealed against the judgment of the court of first instance, and asserted unfair sentencing and mental and physical disorder on that ground, and withdrawn his claim for mental and physical disorder on the first day of the court below. In such a case, the argument that the court below erred in the misapprehension of legal principles as to mental and physical disorder cannot be

In addition, considering various circumstances that are conditions for sentencing as indicated in the records, such as the Defendant’s age, character and conduct, relationship with the victim, motive, means and consequence of the instant crime, circumstances after the crime, and criminal records, the determination of punishment by the lower court that maintained the first instance judgment that sentenced the Defendant to 10 years of imprisonment is extremely unfair, even if considering the circumstances alleged by the Defendant.

2. Judgment on the case of a request for attachment order

A. Judgment on the Grounds for Appeal

Examining the reasoning of the judgment below in light of the records, the court below is justified in finding the defendant as having a risk of recidivism of sexual crime and recidivism, and maintaining the judgment of the court of first instance ordering the attachment of an electronic device, and contrary to what is alleged in the grounds of appeal, there is no violation of logical and empirical rules and exceeding the bounds of the principle of free evaluation of evidence.

B. Ex officio determination

According to the reasoning of the judgment below, where Article 9(1)1 of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders committed a specific crime, the maximum statutory penalty for which is death penalty or life imprisonment, the period of electronic device attachment shall be “not less than 10 years, but not more than 30 years,” and the proviso to the same paragraph stipulates that where a specific crime is committed against a person under 19 years of age, the minimum period of attachment shall be double the minimum period of attachment set forth in each subparagraph of the same paragraph, and Article 2(2) of the Addenda of the above Act (Act No. 1158, Dec. 18, 2012) provides that “a request for attachment order under Article 5(1)4 (1)1 of the above Act (where a sexual crime is committed against a person under 19 years of age) shall also apply to a sexual crime committed before the enforcement of the above Act, the period of attachment shall be less than 10 years, and the defendant's age shall be less than 20 years, and thus, 10 years of age.”

However, this measure by the court below is not acceptable for the following reasons:

Article 5 (1) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders provides that "when a sexual crime is committed against a person under the age of 19 (Article 4) or against a person who is physically or mentally disabled (Article 5) may apply an order to attach an electronic device to a person deemed likely to recommit a sexual crime," and the proviso to Article 9 (1) provides that "where a specific crime is committed against a person under the age of 19, the lower limit of the period of attachment shall be twice the lower limit of the period of attachment stipulated in each subparagraph of Article 9 (1) shall be two times the lower limit of the period of attachment stipulated in each subparagraph of the aforesaid Article," and that Article 9 (1) of the former Act on the Attachment, etc. of Electronic Monitoring, Etc. of Specific Criminal Offenders (Article 1158 of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders) provides that "any request for attachment order to a person under the age of 150 years retroactive prior to enforcement of the aforementioned provision on the victim's right and interest of the Act shall be mitigated."

Therefore, the judgment of the court below which issued an order to attach an electronic device for 20 years on the premise that the proviso of Article 9 (1) of the above Act applies to the specific crimes committed against a person under the age of 19 prior to the enforcement of the above Act is also applicable to the crimes committed by the above Act, is erroneous in the misapprehension of legal principles concerning the application

3. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for attachment order is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal against the prosecuted case is dismissed. It is so decided as per Disposition by the assent

Justices Kim Yong-deok (Presiding Justice)