[1] The criteria and method for determining whether to change disadvantage in a case where the defendant requested a formal trial against a summary order

[2] Legal nature of an order to complete a program under Article 16(2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes

[3] In a case where the defendant was sentenced to a fine due to the crime of quasi-indecent act and requested formal trial, and the first instance court imposed a fine identical to a fine prescribed in the summary order, and ordered to complete the sexual assault treatment program 24 hours at the same time, and the court below maintained the order, the case holding that the court below's order was not allowed since it was modified disadvantageous to the defendant when considering

[1] Article 457-2 of the Criminal Procedure Act / [2] Article 16 (2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes / [3] Article 299 of the Criminal Act, Article 16 (2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes,

[1] [2] Supreme Court Decision 2012Do8736 Decided September 27, 2012, Supreme Court Decision 2014Do3390 Decided August 20, 2014 / [1] Supreme Court Decision 2009Do10754 Decided December 24, 2009 (Gong2010Sang, 293)

Defendant

Defendant

Attorney Lee Jae-hwan

Changwon District Court Decision 2015No114 decided July 2, 2015

All the judgment of the court below and the judgment of the court of first instance are reversed. Defendant shall be punished by a fine of KRW 3,00,000. Where Defendant fails to pay the above fine, Defendant shall be confined in the workhouse for the period calculated by converting KRW 50,000 into one day.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

On the grounds indicated in its reasoning, the lower court found the Defendant guilty of the facts charged in this case. The admission of facts and the selection and evaluation of evidence conducted on the premise thereof belong to the exclusive authority of the fact-finding court unless it goes beyond the bounds of the principle of free evaluation of evidence. Examining the evidence duly admitted by the first instance court that maintained the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by exceeding the bounds

2. Regarding ground of appeal No. 2

A. In a case where a defendant requests a formal trial against a summary order, no sentence more severe than that of the summary order shall be imposed (Article 457-2 of the Criminal Procedure Act). Determination as to whether a sentence has been changed disadvantageous to the defendant ought to be made by considering whether it is not a disadvantageous measure to the defendant in light of the whole order, rather than considering it individually and formally, based on the seriousness of the criminal punishment under the Criminal Act. Meanwhile, order to complete a program under Article 16(2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes is a type of treatment in society against the so-called criminal and has the nature of security measures, not the punishment itself, but the physical freedom is substantially restricted by having the so-called criminal undergo compulsory completion of a sexual assault treatment program (see, e.g., Supreme Court Decisions 2012Do8736, Sep. 27, 2012; 2014Do390, Aug. 20, 2014).

B. According to the records, the crime of this case was committed by the defendant by quasi-indecent act, and upon the issuance of a summary order of a fine of KRW 3,00,000 to the defendant, the defendant applied for formal trial. The first instance court sentenced the defendant to a fine of KRW 3,00,000, and ordered the defendant to complete the sexual assault treatment program 24 hours pursuant to Article 16(2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, and ordered the defendant to complete the sexual assault treatment program 24 hours under Article 16(2) of the same Act.

C. Examining this in light of the aforementioned legal principles, the first instance court’s sentencing of a fine of KRW 3,00,000 in the instant case where only the Defendant requested a formal trial, and imposed a new order to complete the program simultaneously, with the same fine as the fine prescribed by the summary order, is not allowed since the overall and substantial changes to the disadvantage of the Defendant.

Nevertheless, the court below dismissed the defendant's appeal on the ground that the judgment of the court of first instance, which ordered the defendant to complete a new program, was justifiable. Thus, the court below erred by misapprehending the legal principles on the prohibition of disadvantageous changes, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the judgment of the court below shall be reversed, and since this case is recognized as sufficient to be judged by the court, it is directly decided as follows in accordance with Article 396 (1) of the Criminal Procedure Act.

The gist of the grounds for appeal by the defendant is that the defendant, while under the influence of alcohol, committed an indecent act against the victim by rhymizing the body of the victim who was locked by the defendant, even though the defendant entered the ○○ Human Resources Development Institute 407. However, the judgment of the court of first instance is erroneous, which affected the conclusion of the judgment by misunderstanding the facts, and the punishment sentenced by the court of first instance is too unreasonable. However, as seen above, the defendant can be found guilty of the facts charged in this case, and the punishment sentenced by the court of first instance is too unreasonable considering the various circumstances constituting the conditions for sentencing as shown in the records. Thus, the defendant's argument in the grounds for appeal cannot be accepted.

However, ex officio, the judgment of the court of first instance cannot be maintained for the same reason as seen above, and thus, it shall be reversed.

The summary of the facts constituting the offense against the defendant recognized by the court and the summary of the evidence is the same as that of the judgment of the court of first instance, and thus, they are cited in accordance with Articles 399 and 369 of the Criminal Procedure Act.

Since such act of the defendant constitutes Articles 299 and 298 of the Criminal Act, the defendant is selected from among the prescribed punishment, and the defendant is punished by a fine of KRW 3,00,000, and if the defendant does not pay a fine, the defendant shall be confined in the old house for the period calculated by converting 50,000 won into one day under Articles 70 and 69(2) of the Criminal Act. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)