2019Do12883 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Use of Cameras, etc.)

(Recording)

A

Defendant

Jeonju District Court Decision 2019No328 Decided August 22, 2019

October 31, 2019

The judgment below is reversed, and the case is remanded to the Jeonju District Court.

1. The grounds of appeal concerning the accused case are examined.

Based on its stated reasoning, the lower court convicted the Defendant of the instant facts charged. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence

2. Ex officio determine an employment restriction order for welfare facilities for disabled persons;

(a) Progress to amend regulations on employment restriction orders;

1) Article 59-3 (1) of the former Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018) provides that a person who was 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”) may not operate a welfare facility for persons with disabilities or provide them with employment or actual labor at welfare facilities for 10 years from the date on which the execution of such punishment or medical treatment and custody is completed or suspended or exempted (hereinafter referred to as “previous provision”).

2) According to Article 59-3(1) of the Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018; hereinafter “amended Act”), the Constitutional Court ruled that the previous provision imposing the restriction on employment of 10 years uniformly on the basis of the records of sexual crime violates the freedom of occupation (see, e.g., Constitutional Court Order 2015HunMa915, Jul. 28, 2016). Accordingly, when a sentence of imprisonment or medical treatment and custody is imposed on a sex offender, the court recognized the exception of employment restriction in cases where the sentence is imposed on the sentence of imprisonment or medical treatment and custody for a certain period from the date when the execution of all or part of the sentence or medical treatment and custody is completed or suspended or exempted (hereinafter “period of employment restriction”). However, the court held that an employment restriction order should not be imposed concurrently with a judgment on a sex offense case where the employment restriction order should not be imposed.

3) Meanwhile, the Addenda of the amended Act concerning the enforcement date, scope of application, etc. shall be as follows. The amended Act shall also apply to persons who have committed sex offenses before the amended Act enters into force (Article 1); the amended provisions shall also apply to those who have not been finally determined (Article 2). 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 finalized 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 decision has become final and conclusive: Five years, after the completion or suspension of the execution of all or part of the sentence or medical treatment and custody (hereinafter the same shall apply), and three years, and one year, where the sentence becomes final and conclusive upon being sentenced to imprisonment, imprisonment with or without prison labor, or medical treatment and custody for less than three years, and one year, and where the previous provisions are more favorable, a person subject to the previous provisions shall not be provided for welfare facilities for disabled persons (Article 3(1).

(b) Fact of recognition;

According to the evidence duly admitted by the court below, the following facts are revealed:

1) The summary of the facts charged in the instant case is that the Defendant taken pictures against his/her will, around May 8, 2018, the victim’s body, which may cause sexual humiliation or shame at the Militarysan City, around 08:31.

2) On February 15, 2019, prior to the enforcement of the amended Act, the first instance court sentenced the Defendant to a fine of KRW 3 million and a fine of KRW 40 million, and ordered the completion of sexual assault treatment programs for 40 hours, and sentenced the child and juvenile-related institutions, etc. to an employment restriction order for three years. On this basis, only the Defendant appealed on the ground of mistake of facts and unreasonable sentencing.

3) The lower court, in accordance with Article 2 of the Addenda to the amended Act, and the amended provisions, on August 22, 2019, following the enforcement of the amended Act.

The judgment of the court of first instance is reversed ex officio on the ground that the defendant should be sentenced to an employment restriction order at the same time as the judgment of the court of first instance, and the defendant was convicted of the charges of this case, and the defendant was sentenced to an employment restriction order for each three years with child and juvenile-related institutions and welfare facilities with the same punishment as the judgment of the court of first instance (the fine of KRW 3 million, confiscation, order to complete sexual assault treatment programs for 4

1) With respect to a case on which only the defendant appealed an appeal, no sentence more severe than that of the judgment of the court of first instance (Article 368 of the Criminal Procedure Act). Determination as to whether a sentence has been changed disadvantageous to the defendant should be made based on the severity of the punishment under the Criminal Act, but not on the basis of individual and formal examination of the sentence individually and formally, but on the basis of the overall text of the order, it should be made by considering whether it is not disadvantageous to the defendant (see, e.g., Supreme Court Decision 2012Do8736, Sept. 27, 2012). Meanwhile, an employment restriction order prescribed by the amended provisions is a type of treatment in the society against the criminal, and has the nature of security measures, not by itself, but by preventing the operation of welfare facilities for persons with disabilities

2) According to the above amended provisions and the amendment of the amended Act, if a prosecutor and the first instance judgment against the first instance judgment that sentenced the Defendant to a fine of three million won or more prior to the enforcement of the amended Act, and ordered the completion of sexual assault treatment programs for 40 hours, which sentenced the Defendant to an employment restriction order for three years to the institutions related to children and juveniles, etc., and the Defendant did not appeal, and the first instance judgment becomes final and conclusive as it is because the special provisions of Article 4 and each subparagraph of Article 3(1) of the Addenda to the amended Act apply, the employment restriction period for welfare facilities for the disabled becomes one

Nevertheless, in this case where only the Defendant appealed, the lower court, after the enforcement date of the amended Act, sentenced the Defendant who committed a sex offense pursuant to Article 2 of the Addenda to the amended Act, along with an employment restriction order for the same type as the first instance court and the institutions related to children and juveniles, etc., and sentenced the Defendant to the employment restriction order for three years at welfare facilities for the disabled for three years. Examining the foregoing legal principles in light of the legal principles as seen earlier, the sentence of the employment restriction order for welfare facilities for the disabled for more than one year, compared with the period in which the first instance

Therefore, the lower court erred by misapprehending the legal doctrine on the principle of prohibition of disadvantageous alteration, thereby adversely affecting the conclusion of the judgment.

3. Scope of reversal

For the foregoing reasons, the part of the lower judgment regarding the employment restriction order for welfare facilities for the disabled should be reversed. Since the employment restriction order is an incidental disposition that the court issues simultaneously with a judgment on a certain sex offense case, the remaining part of the Defendant case shall be reversed

4. Conclusion

Therefore, the lower judgment is entirely reversed, 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 Dong-won

Justices Kim Jong-il

Justices Park Il-san

Justices Kim In-bok, Counsel for the defendant