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(영문) 대법원 2017.08.23 2017도8221
성폭력범죄의처벌등에관한특례법위반(통신매체이용음란)등
Text

The appeal is dismissed.

Reasons

The grounds of appeal are examined.

1. In applying the principle of prohibition against disadvantageous change to a defendant, determination as to whether a sentence imposed is disadvantageous to the defendant should be made on the basis of the severity of the punishment under the Criminal Act, but not on the basis of whether it is disadvantageous to the defendant in light of the whole order (see, e.g., Supreme Court Decision 2009Do12967, Feb. 11, 2010). In light of the content and form of the provision on the registration of personal information under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”), the court does not impose a separate duty to submit personal information on a person subject to registration, but if a conviction is confirmed due to a sex offense subject to registration, it is naturally arising from the provision of the Sexual Violence Punishment Act (see, e.g., Supreme Court Decision 2014Do3564, Nov. 13, 2014). According to the records, the court below reversed the defendant’s obligation to request a retrial against the defendant under Article 14(1) of the Punishment Act.

In light of the aforementioned legal principles and all the circumstances, the lower court rendered a judgment more unfavorable than maintaining the first instance judgment against the Defendant.

Therefore, the lower court did not err in its judgment by either violating the principle of prohibition of disadvantageous alteration, or violating the Defendant’s right to trial or the right to equality, contrary to what is alleged in the grounds of appeal.

2. We affirm that the court below erred by misapprehending the legal principles on the crime of sexual assault (obscenity using communications media) although the defendant's behavior does not constitute a crime of violation of the Punishment of Sexual Violence Act.

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