[1] Whether the elements of “where a sexual crime was committed on at least two occasions” under Article 5(1)3 of the former Act on the Electronic Monitoring of Specific Sexual Offenders include a final and conclusive judgment of conviction (affirmative)

[2] The case holding that the court below erred in the misapprehension of legal principles and incomplete hearing in dismissing the defendant's request for an attachment order issued by a prosecutor on two or more occasions in the case where the defendant met the requirements of "a sexual crime committed on two or more occasions" under the main sentence of Article 5 (1) 3 of the former Act on the Electronic Monitoring of Specific Sexual Offenders including a prior conviction for which the judgment of conviction was rendered

[1] Article 5 (1) 3 of the former Act on the Electronic Monitoring, etc. of Specific Sexual Offenders (amended by Act No. 9654 of May 8, 2009) (see current Article 5 (1) 3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders) / [2] Article 5 (1) 3 of the former Act on the Electronic Monitoring, etc. of Specific Sexual Offenders (amended by Act No. 9654 of May 8, 2009) (see current Article 5 (1) 3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders), Article 9 (1) and (2) (see current Article 9 (1) and (4) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders)

[1] Supreme Court Decision 2009Do7282, 2009Do21 decided Oct. 29, 2009 (Gong2009Ha, 2069Ha, 2069)

Defendant

Defendant and the respondent for attachment order and the prosecutor

Attorney Kim Jong-su

Seoul High Court Decision 2009No3236, 2009 Jeonno59 decided January 14, 2010

The part of the judgment of the court below regarding the attachment order shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Judgment on the Defendant’s grounds of appeal

According to the records, the defendant appealed the judgment of the court of first instance on the sole ground of unfair sentencing as the ground of appeal, and the appeal was dismissed. In such a case, the defendant cannot be deemed as the ground of appeal that there was an error of mistake of facts or misapprehension of legal principles as to the judgment of the court of first instance (see, e.g., Supreme Court Decision 2005Do3345, Sept. 30, 2005; 2005Do14, Sept. 30, 2005). In addition, pursuant to Article 383 subparag. 4 of the Criminal Procedure Act, only in the case where death penalty, life imprisonment, or imprisonment with or without labor for more than ten years is declared, an appeal on the ground of unfair sentencing is allowed

2. Judgment on the grounds of appeal by the prosecutor

Article 5 (1) 3 of the former Act on the Attachment of Electronic Monitoring of Specific Sexual Offenders (amended by Act No. 9654 of May 8, 2009 and the legal title is amended by the Act on the Attachment of Electronic Monitoring, etc. of Specific Criminal Offenders; hereinafter “Electronic Devices Act”) provides that “The prosecutor is acknowledged to have a habit by committing two or more sexual crimes, and the prosecutor may request the court to issue an order to attach an electronic device to a person who is deemed likely to recommit a sex crime, and may request the court to order him/her to attach an electronic device.” In full view of the content of the provision and the structure and legislative intent of the Electronic Monitoring Act, it is reasonable to deem that “where a sexual crime was committed on two or more occasions” as referred to in the above provision includes cases where the judgment of conviction has been rendered.

According to the reasoning of the judgment below and the judgment of the court of first instance, the following facts are revealed: “A person who requested the attachment order of this case was sentenced to nine months of imprisonment for the crime of indecent act by force by a minor at the Ulsan District Court on January 16, 2009 and the execution of the sentence was completed on the same day, and on June 19:30, 2009, the victim’s house located at the lower court’s house located in Nowon-gu, Seoul Special Metropolitan City, the victim committed indecent act by force by inserting the victim’s house located in the victim’s house located in the lower court.”

Examining this in light of the aforementioned legal principles, the person who requested the attachment order satisfies the requirements under the first sentence of Article 5(1)3 of the Electronic Monitoring Act, including the fact of the previous conviction for which a final judgment of conviction has been rendered. Therefore, the lower court should have deliberated and determined on the remainder of the requirements of the attachment order of an electronic device, such as whether the person who requested the attachment order is guilty or not.

Nevertheless, without doing so, the court below rejected the prosecutor's request for the attachment order of this case against the person who requested the attachment order of this case on the ground that "a person who committed a sexual crime twice or more" under Article 5 (1) 3 of the Electronic Monitoring Act refers to a case where the facts constituting the cause of the request for attachment order of this case are two or more times without including the previous facts. Thus, the court below erred by misapprehending the legal principles on the interpretation of Article 5 (1) 3 of the Electronic Monitoring Act and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The grounds of appeal pointing this out are with merit.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the attachment order is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal regarding the case prosecuted is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Yang Sung-tae (Presiding Justice)