In a case where the Defendant was convicted of a crime causing rape and again committed a violation of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof after the conviction became final and conclusive, and the attachment order is requested pursuant to Article 5(1)3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, the case holding that the lower court erred by misapprehending the legal doctrine, etc., which dismissed the Defendant’s request for attachment order on the ground that the requirements for “where the Defendant committed a sexual crime

Article 301 of the Criminal Act, Article 6 (1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (Amended by Act No. 10258, Apr. 15, 2010) (see Article 4 (1) of the current Act on Special Cases concerning the Punishment, etc. of Sexual Crimes), and Article 5 (1) 3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders

Defendant

Defendant and the respondent for attachment order and the prosecutor

Attorney Noh Jeong-sung

Daejeon High Court Decision 201No350, 201No57 decided December 16, 2011

The part of the judgment below regarding the case for which the attachment order is requested shall be reversed, and that part of the case shall be remanded to the Daejeon High Court. All of the appeals against the defendant

The grounds of appeal are examined.

1. Determination of the grounds of appeal as to the accused case

A. Judgment on the Defendant’s grounds of appeal

1) According to the reasoning of the lower judgment, the lower court, based on the duly admitted evidence, found facts as stated in its reasoning, and determined that the charges of violating the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (Special Rape), heavy confinement, bodily injury, each injury, damage to property, assault, and Punishment of Violences, etc. (hereinafter “Exposure Act”), violation of the Exposure Act (collective, deadly weapons, etc.), violation of the Exposure Act (collective, deadly weapons, etc.) and violation of the Act on the Control of Firearms, Swords, Explosives, etc. are recognized, based on the reasons indicated in its reasoning. In so doing, the lower court did not err by misapprehending the legal principles on the violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (Special Rape), or by exceeding the bounds of the principle of free evaluation of evidence, contrary to what is alleged in the grounds of appeal.

2) According to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. Thus, in the instant case where a more minor sentence has been imposed on the Defendant, this part of the allegation to the effect that the sentencing of the sentence

B. Judgment on the grounds of appeal by the prosecutor

The burden of proving the facts charged in a criminal trial is to be borne by a public prosecutor, and the recognition of guilt must be based on evidence with probative value that leads a judge to feel true beyond reasonable doubt. Thus, if there is no such evidence, even if there is doubt as to the defendant's guilt, it is inevitable to determine the defendant's interest (see, e.g., Supreme Court Decision 2010Do9633, Nov. 11, 2010).

According to the reasoning of the judgment below, after compiling the evidence duly admitted, the court below found facts as stated in its reasoning. The evidence submitted by the prosecutor alone is insufficient to recognize the facts charged of rape, violation of the Sexual Exposure Act and violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Kamerla Use Screening). Since there is no other evidence to acknowledge this, the court below acquitted this part of the facts charged as it constitutes a case where there is no evidence of crime.

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there are no errors in violation of the rules of logic and experience and free evaluation of evidence.

2. Judgment on the case of a request for attachment order

Article 5(1)3 of the Act on the Attachment, etc. of Electronic Monitoring, Etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”) provides that a prosecutor may file an application with the court to attach an electronic device to a person deemed likely to recommit a sexual crime, where the prosecutor committed a sexual crime on at least two occasions (including where he/she has been finally and conclusively convicted) and the habit is recognized.

The reasoning of the judgment below and the evidence duly admitted by the court below reveal that the remainder of the grounds for the request for the attachment order of this case except the rape of this case, which was pronounced not guilty, was found guilty of rape, and the judgment became final and conclusive, and that the person who requested the attachment order of this case committed a violation of the sexual breadth Act (special rape).

Examining this in light of the relevant provisions of the Electronic Monitoring Act, the applicant for the attachment order satisfies the requirements of “where sexual crimes are committed on at least two occasions” under Article 5(1)3 of the Electronic Monitoring Act, including the fact of the previous conviction that has been convicted, and thus, the lower court should have deliberated and determined on the remainder of the requirements of the attachment order, including whether the person subject to the request for the attachment order is recognized as the recidivism of sexual crimes.

Nevertheless, the court below rejected the prosecutor's request for the attachment order of this case on the ground that the remaining facts of the cause of the request for attachment order of this case except for rape of this case for which the non-guilty verdict was rendered as stated in its reasoning do not meet the requirements of "where sexual assault crimes are committed at least twice" under Article 5 (1) 3 of the Electronic Monitoring Act. Thus, the court below erred by misapprehending the legal principles on the interpretation of Article 5 (1) 3 of the Electronic Monitoring Act, which affected the conclusion of the judgment by failing to exhaust all necessary deliberations.

3. Conclusion

Therefore, the part of the judgment below regarding the claim for attachment order among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. The appeal against the accused case is dismissed in entirety. It is so decided as per Disposition by the assent of all participating

Justices Park Poe-young (Presiding Justice)