Where a suspended sentence is imposed on a specific criminal under the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, whether probation is ordered along with the details of matters to be observed, whether the order to attach an electronic device is ordered pursuant to Article 28(1) of the same Act, and whether the judgment on the period, etc. belongs to the discretionary matters of the court (affirmative in principle)

In Chapter IV of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “Act”), the said attachment order is an indivisible relationship with the stay of probation and the attachment order under Article 28(1) of the Act, and it is possible only when the court orders a specific criminal to undergo probation while suspending the execution of a sentence. It differs from the nature and requirement of the attachment order under Chapter II of the Act. In addition, with respect to the attachment order under Chapter IV of the Act, Article 9(8) and (9) of the Act does not apply mutatis mutandis under Article 31 of the Act, which provides for an appeal against the judgment on the “request for attachment order” in Article 31 of the Act, and with respect to the stay of probation, partial appeal against the part of the attachment order is not permitted. In full view of the aforementioned various circumstances, it is reasonable to determine that the above attachment order is an integral relationship with the stay of probation, and thus, constitutes an independent appeal. In addition, the court’s order to issue probation orders and the details of the attachment order, as well as the requirements for the probation order under the Act.

Articles 5, 9(1), 9(4)4, 8(9), 28(1), and 31 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders

Defendant

Prosecutor

Attorney Kim Hyun-chul

Seoul High Court Decision 2011No2069, 2011 Jeonno268 decided October 6, 2011

The appeal is dismissed.

The grounds of appeal are examined.

Chapter 2 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “the Act”) provides for “the attachment of an electronic device after the completion of imprisonment.” Article 5 of the Act included in the above Chapter provides that a prosecutor may request a court to issue an attachment order in cases where a specific criminal suspect is likely to recommit the specific crime. In relation to the above request of the prosecutor, the court shall issue an attachment order (Article 9(1) of the Act) by judgment when the request for the attachment order is deemed reasonable (Article 9(1) of the Act), but where the court declares the suspension of execution in relation to the specific crime case, it shall dismiss the request for the attachment order by judgment except when issuing an order to attach an electronic device pursuant to Article 28(1) of the Act (Article 9(4)4 of the Act).

Meanwhile, Chapter IV of the Act provides for the suspension of execution and the attachment order. Article 28 (1) of the Act, which is included in the Chapter IV, provides that “When a court issues a probation order to a person who has committed a specific crime while suspending the execution of a sentence, it may order the person to attach an electronic device for a fixed period of time within the period of probation.” Thus, a court may order the person to attach an electronic device in certain cases. However, such an order to attach an electronic device is possible only when the court issues a probation order while suspending the execution of a sentence. Such order to attach an electronic device differs from that of “after the completion of imprisonment” as stipulated in Chapter II of the Act. In addition, with respect to an order to attach an electronic device, Article 31 of the Act does not apply mutatis mutandis, and Article 9 (8) and (9) of the Act, which provides for an appeal against the judgment on “request for the attachment order” in Chapter IV of the Act, in light of the fact that partial appeal against the probation order is not permitted, the court’s order to attach an electronic device to a specific probation order is not subject to the probation order.

Therefore, the Prosecutor’s ground of appeal in this case that the court below’s failure to issue an order to attach an electronic device when issuing a probation suspension order against the Defendant cannot be a legitimate ground of appeal in light of the aforementioned legal provisions and legal principles.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)