When determining whether a juvenile is subject to Article 60(2) of the Juvenile Act regarding mitigation of juvenile crime (=the time the judgment of the court of fact is rendered)

Inasmuch as “juvenile” to which the Juvenile Act applies refers to a person under the age of 19 at the time of adjudication, to be subject to the Juvenile Act, it should be under the age of 19 at the time of adjudication. Therefore, determination as to whether a “juvenile” is subject to Article 60(2) of the Juvenile Act ought to be made at the time of adjudication of facts, namely, at the time of adjudication of the court of fact. This legal doctrine is inconsistent with the fact that the scope of “Juvenile” was reduced from less than 20 to less than 19 years of age, and was committed before the amendment of the Juvenile Act (amended by Act No. 8722, Dec. 21, 2007; enacted in June 22, 2008) was enforced, and that the judgment of the court below was pronounced prior to the age of 20.

Article 2 of the former Juvenile Act (amended by Act No. 8722 of Dec. 21, 2007); Articles 2 and 60(2) of the Juvenile Act; Article 2 of the Addenda (amended by Act No. 8722 of Dec. 21, 2007)

Supreme Court Decision 96Do1241 delivered on February 14, 1997 (Gong1997Sang, 828) Supreme Court Decision 2000Do2704 Delivered on August 18, 200 (Gong2000Ha, 2040) Supreme Court Decision 2008Do8090 Delivered on October 23, 2008 (Gong2008Ha, 1655)

Defendant and the respondent for attachment order

Defendant and the respondent for attachment order

Attorney Jeong-young

Daegu High Court Decision 2008No617, 2008 Jeonno5 decided March 26, 2009

All appeals are dismissed. 59 days out of detention days after the appeal shall be included in the original sentence.

The grounds of appeal are examined.

1. Defendant case;

The phrase “juvenile” to which the Juvenile Act applies refers to a person under 19 years of age (Article 2 of the same Act), and if a defendant wishes to be subject to the Juvenile Act, he/she must be under 19 years of age at the time of adjudication. Therefore, whether a defendant is a “juvenile” subject to Article 60(2) of the Juvenile Act shall be determined based on the time of adjudication of facts (see Supreme Court Decision 2000Do2704, Aug. 18, 200). Such legal principle does not change because the defendant committed the crime in this case before the amendment of the Juvenile Act (amended by Act No. 8722, Dec. 21, 2007; enacted on Jun. 22, 2008; see Article 200Do2704, Aug. 18, 200) that reduced the scope of the above “juvenile” from the age of 20 to the age of 19.

In light of the above legal principles and records, although the judgment of the court of first instance sentenced the defendant to an illegal sentence, it is justifiable to render a regular sentence on the ground that the defendant who is 19 years of age or older at the time that the judgment of the court below was sentenced does not constitute "juvenile" under the Juvenile Act, and it is not erroneous in the misapprehension of legal principles on the application of Article 60 (2) of the Juvenile Act, etc.

2. As to the attachment order case

The lower court maintained the conclusion of the first instance judgment, which determined that the Defendant is likely to recommit a crime, by comprehensively taking into account all the circumstances, such as the Defendant’s character and behavior, motive and method of the instant crime, and circumstances after the crime.

This decision of the court below is justified in light of the records. There is no error of law such as incomplete deliberation, misunderstanding of legal principles, and lack of reasoning as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, all appeals are dismissed and part of the detention days after the appeal is included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)