[1] In applying the principle of prohibition of disadvantageous alteration, whether the order should not be considered individually and formally, but should be considered in whole and in substance and determined (affirmative)

[2] The case holding that in a case where the first instance court reversed the judgment of the court of first instance on the grounds that the defendant who committed a sex offense before the enforcement of the Act on the Protection of Children and Juveniles against Sexual Abuse, prior to the enforcement of the Act on the Protection of Children and Juveniles against Sexual Abuse, was convicted prior to the enforcement date of the Act on the Protection of Children and Juveniles against Sexual Abuse, and issued an order to complete a sexual assault treatment program (80 hours), and only the defendant was appealed on the ground of mistake of facts and unfair sentencing, and the lower court, which rendered a judgment after the enforcement date of the Act, reversed the judgment of the court of first instance and issued an employment restriction order for three years, while recognizing him/her guilty ex officio, on the grounds that the order should be issued simultaneously with the sentence of the Act on the Prevention of Disadvantage Change,

[1] Articles 368 and 399 of the Criminal Procedure Act / [2] Articles 297 and 300 of the Criminal Act; Articles 56(1) (see current Article 56(1) and (2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 15352, Jan. 16, 2018); Articles 56(1) and (2) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Articles 1, 3, 4(1)3, and 5 of the Addenda (Amended by Act No. 15352, Jan. 16, 2018); Articles 368 and 399 of the Criminal Procedure Act

[1] Supreme Court Decision 2012Do7198 Decided December 12, 2013 (Gong2014Sang, 212)

Defendant

Defendant

Attorney Kim Sung-sung

Gwangju High Court Decision 2018No157 decided August 9, 2018

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the assertion including the hearing of hearing

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court’s finding the Defendant guilty of the instant facts charged and ordering employment restriction on the grounds stated in its reasoning is justifiable, and the lower court did not err by failing to exhaust all necessary deliberations and by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules

2. As to the assertion of misapprehension of legal principles as to Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

A. (1) Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15352, Jan. 16, 2018) provides that a person who was sentenced to imprisonment or medical treatment and custody for a sex offense against a child or juvenile or a sex offense against an adult (hereinafter “sexual crime”) shall not operate an institution related to a child or juvenile, or be able to provide a child or juvenile with employment or actual labor to an institution related to a child or juvenile for 10 years from the date the execution of the sentence or medical treatment and custody is completed, suspended, or exempted (hereinafter “previous provision”).

(2) The previous provision imposing the restriction on employment of ten years on the basis of the past records of sex offense is unconstitutional (the Constitutional Court en banc Decision 2013Hun-Ma585, 786, 2013Hun-Ma5, 399, 1034, 1107 en banc Decision 2015Hun-Ma98, April 28, 2016; Constitutional Court en banc Decision 2013Hun-Ma436, Jul. 28, 2016; Constitutional Court en banc Decision 2014Hun-Ma709, Oct. 27, 2016; Constitutional Court en banc Decision 2015Hun-Ma532, Jan. 16, 2018; Constitutional Court en banc Decision 2013Hun-Ma709, Apr. 15, 2018; or en banc Decision 2015Hun-Ma536, Apr. 16, 2018>

(3) Meanwhile, the Addenda of the amended Act provides for the enforcement date, scope of application, etc. of the amended Act. The amended Act shall enter into force six months after the date of its promulgation (Article 1). The amended Act shall also apply to persons who committed sex offenses before the amended Act enters into force and have not been finally declared final and conclusive (Article 3). Notwithstanding the previous provisions, the period of restriction on employment of persons subject to employment restrictions pursuant to the previous provisions shall be five years, three years, and one year according to the scope of the final and conclusive principal sentence (in cases of persons subject to imprisonment, imprisonment without prison labor, or imprisonment without prison labor, or medical treatment and custody for more than three years and for whom the final and conclusive sentence has become final and conclusive after the completion, suspension, or exemption of the execution (hereinafter the same shall apply) of all or part of the relevant punishment or medical treatment and custody, and three years, and three years, and one of the persons for whom the sentence becomes final and conclusive upon being sentenced to a fine, and where the previous provisions are more favorable, the previous provisions shall also apply to persons subject to the previous provisions (Article 4(1).3).

B. The record reveals the following facts.

(1) The summary of the facts charged of the instant case is as follows: (a) around 05:00 on January 27, 2017, the Defendant tried to put the Defendant’s hand in the part of the victim, and put the Defendant’s hand into the part of the victim, and put the fry television in the victim’s body at the victim’s house, and kid the victim’s kid, and, even though the victim refused to do so, left the victim’s kis and panty. Although the Defendant continued to refuse to do so, the Defendant did not commit rape and attempted to commit rape by putting the victim’s hand in the part of the victim’s body and inserting the Defendant’s hand into the part of the victim’s body. However, the Defendant attempted to put the Defendant’s hand into the part of the victim’s body, which led to an attempted rape.

(2) On March 30, 2018, prior to the enforcement of the Amendment Act, the first instance court convicted the Defendant of the instant facts charged, and sentenced the Defendant to an order to complete a sexual assault treatment program (80 hours) along with one year’s imprisonment. On this basis, only the Defendant appealed on the ground of mistake of facts and unreasonable sentencing.

(3) The lower court, which rendered a judgment on August 9, 2018, following the enforcement of the amended Act, reversed the first instance judgment ex officio, and determined that the instant facts charged were guilty on the grounds that the Defendant should simultaneously issue an employment restriction order, in accordance with Article 3 of the Addenda to the amended Act and the amended provisions, and sentenced the Defendant to the employment restriction order for three years, along with the same punishment as that of the first instance court (a year of imprisonment and an order to complete a sexual assault treatment program for 80 hours).

C. In the application of the principle of prohibition of disadvantageous change, it is not necessary to examine the order individually and formally, and it should be determined in full and substantially (see, e.g., Supreme Court Decision 2012Do7198, Dec. 12, 2013). Examining the aforementioned legal principles and the purport, contents, etc. of the amended provision and the supplementary provision of the amended Act, supra, if the first instance judgment, which sentenced one year imprisonment before the enforcement of the amended Act, becomes final and conclusive without filing an appeal, employment is restricted for three years in accordance with the provision of Article 4 or 5 of the Addenda to the amended Act, and such special provision is more favorable to the Defendant as a matter of course than the previous provision that takes effect of employment restriction for ten years uniformly without exception. Therefore, the lower court’s judgment that rendered a judgment after the enforcement of the amended Act pursuant to Article 3 of the Addenda to the Defendant’s lawsuit, which rendered a sentence identical to the Defendant prior to the enforcement of the amended Act, and at the same time sentenced the Defendant to a disadvantage of the first instance judgment for three years.

3. Conclusion

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

Justices Kim Jae-hyung (Presiding Justice)