Whether the deletion of Article 5-2(4) of the former Act on the Aggravated Punishment, etc. of Specific Crimes constitutes an anti-sexual measure taken from the fact that the previous measure that requires the aggravated punishment of “the crime of kidnapping for the purpose of adultery” is excessive (affirmative)

Articles 1(2) and 288(1) of the Criminal Act; Article 288(1) of the former Criminal Act (Amended by Act No. 11731, Apr. 5, 2013); Article 5-2(4) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 11731, Apr. 5, 2013);

Supreme Court Decision 2013Do4862, 2013 Jeondo101 Decided July 11, 2013 (Gong2013Ha, 1553)

Defendant

Defendant and the respondent for an attachment order, and the respondent for a medical treatment order

Attorney Kim Young-young

Gwangju High Court Decision 2013No100, 2013 Jeonno12, 2013Hunno2 decided May 16, 2013

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

Judgment ex officio is made.

1. In a case where the evaluation of acts deemed a crime in the past is different from that of the past according to the changes in the legal ideology, which served as the reason for the enactment of penal statutes, and the punishment itself was recognized as a crime, or where the Acts and subordinate statutes were amended or amended in light of reflective consideration that the punishment was excessive, the new law shall be applied in accordance with Article 1(2) of the Criminal Act (see, e.g., Supreme Court Decisions 2003Do2770, Oct. 10, 2003; 2009Do12930, Mar. 11, 2010).

2. A. According to the reasoning of the lower judgment, the lower court upheld the first instance judgment convicting the Defendant and the respondent for an attachment order or the respondent for a treatment order (hereinafter “Defendant”) of the instant facts charged 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).

B. Article 5-2(4) of the former Act on the Aggravated Punishment, etc. of Specific Crimes provides that “any person who commits a crime under Article 288, 289, or 292(1) of the Criminal Act shall be punished by imprisonment with prison labor for life or for at least five years.” Article 288(1) of the former Criminal Act provides that “Any person who kidnaps or induces another for the purpose of engaging in indecent act, sexual intercourse, or profit-making shall be punished by imprisonment with prison labor for at least one year.” However, Article 5-2(4) of the former Act on the Aggravated Punishment, etc. of Specific Crimes, which was enforced before the pronouncement of the lower judgment (amended by Act No. 11731, Apr. 5, 2013) provides that “Any person who captures or induces another person for sexual intercourse, marriage, or profit-making purposes, shall be punished by imprisonment with prison labor for at least one year but not more than ten years,” and the purport of Article 288(1) of the former Criminal Act is that the same constitutes an aggravated punishment or alteration of the former Act.

Therefore, among the facts charged in the instant case, the Defendant’s abduction for the purpose of sexual intercourse cannot be subject to aggravated punishment pursuant to the former Act on the Aggravated Punishment, etc. of Specific Crimes. Nevertheless, the judgment of the court of first instance that applied the provisions of the former Act on the Aggravated Punishment, etc. of Specific Crimes to the above part of the facts charged is justified, and the judgment below

C. The lower court imposed a single sentence on the Defendant on the grounds that the aforementioned part of the facts charged and the remaining facts charged are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the remainder of the facts charged as well as the aforementioned part of the facts charged ought to be reversed together. Meanwhile, inasmuch as the case pertaining to disclosure order and notification order under Articles 38 and 38-2 of the Act on the Protection of Children and Juveniles against Sexual Abuse is an incidental disposition that is rendered simultaneously with the judgment of the sexual crime case, the part of the disclosure order and notification order should also be reversed. Furthermore, as long as the Defendant case, which is the principal case, is reversed, the part of the disclosure order and notification order should also be reversed. Furthermore, as long as the case is reversed, the part of the case pertaining to the Defendant case, which is the principal case, shall be examined together with the former Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, and the case pursuant to Article 8 of the Act on the Pharmacologic Treatment of Sex Offenders Order of Electronic Monitoring System.

3. The lower judgment is reversed without further proceeding to decide on the grounds of appeal, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)