(영문) 창원지방법원 2019.9.19. 선고 2019노1104 판결

The sentence of the lower court (the suspended sentence of a fine of three million won, the year of probation, the confiscation) is too unfluent and unfair.

2. Judgment on the assertion of unfair sentencing

The defendant, with his smartphone, committed a crime by entering a female toilet in order to take a string of the appearance of women to see the side, and the fact that the victim is a student living together is disadvantageous to the defendant.

However, in full view of all the sentencing conditions in the instant case, including the Defendant’s personality and behavior, environment, and circumstances after the instant crime, the lower court’s punishment is too unreasonable, and thus, cannot be deemed unfair, in view of the following factors: (a) the Defendant’s mistake is closely against the Defendant; (b) the victim’s side and the Defendant agreed to do so; (c) the victim’s psychological counseling after the instant crime was committed; (d) the minors who were mentally mature at the time of the instant crime; and (e) the minors who had no criminal records

Therefore, prosecutor's assertion is without merit.

3. Ex officio determination

Article 59-3(1) of the Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018; Act No. 15904; Act on Welfare of Persons with Disabilities (hereinafter referred to as “sexual crime”) provides that a person finally determined after having been sentenced to a sexual crime under Article 2(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes or a sex offense against children and juveniles under Article 2 subparag. 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter referred to as “sexual crime”) shall not operate welfare facilities or provide employment or actual labor to welfare facilities for persons with disabilities for a uniform period of ten years (hereinafter referred to as “period between employment restrictions”). However, Article 59-3 of the Act on Welfare of Persons with Disabilities, which was amended by Act No. 15904, Jun. 12, 2019; Act No. 15099, Feb. 2, 2019>

Therefore, it is necessary to examine and judge whether the employment restriction order should be imposed simultaneously with the judgment in accordance with Article 59-3(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (in the case of sentencing a punishment due to the crime of using a camera, etc. and photographing it).

In light of the Defendant’s age, record of punishment, risk of recidivism, background and method of the instant crime, the disadvantage of the Defendant due to the employment restriction order prescribed by the Welfare of Persons with Disabilities Act, and the prevention of sex crimes that may be achieved therefrom, etc., which are acknowledged by the lower court based on comprehensive examination of the evidence duly adopted and examined by the lower court, it is determined that there are special circumstances that the Defendant should not be restricted from employment, and thus, the Defendant should not be issued an employment restriction order under the Welfare of Persons with Disabilities Act pursuant to Article 2 of the Addenda to the Welfare of Persons with Disabilities Act (Article 59-3(1) of the Welfare of Persons with Disabilities Act) and the proviso

4. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.