If there is no explicit transitional provision regarding retroactive application while establishing the Special Provision that suspends, extends, or excludes statute of limitations, matters to be considered when determining whether to apply such provision retroactively.

In interpreting and applying any legal provision, a court shall avoid unconstitutional interpretation and choose a method of interpretation consistent with the Constitution when it results in unconstitutional violation of the Constitution, and can be seen as being in conformity with the Constitution according to other statutory methods. This also applies to cases where there are unclear parts as to the scope of the application of certain legal provisions, etc. because the legislative method is somewhat insufficient. From this point of view, in the case where the Special Provision was newly established to suspend, extend, exclude the statute of limitations, and exclude the retroactive application, if there is no explicit transitional provision on the retroactive application, whether the provision can be retroactively applied can be seen as a matter of course. Therefore, the general principle cannot exist to solve this problem. Therefore, a careful determination should be made so that the ideology of the rule of law, including the principle of due process and the principle of no retroactive application, should not be damaged, based on the spirit of Articles 12(1) and 13(1) of the Constitution that declared the principle

Articles 12(1) and 13(1) of the Constitution of the Republic of Korea; Article 20(3) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012) (see current Article 21(3))

[Plaintiff-Appellee] 91Jeng8, May 8, 1992 (Gong1992, 2151)

Defendant and the respondent for attachment order

Defendant and the respondent for attachment order and the prosecutor

Attorney Park Chang-chul

Gwangju High Court Decision ( Jeju), 2014No99, 2014No19 decided January 7, 2015

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Defendant case

A. As to the grounds of appeal by the Defendant and the person to whom the attachment order was requested (hereinafter “Defendant”).

(1) Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court is justifiable to have determined that all the facts charged (excluding the front part and the acquittal part) of the instant case were guilty on the grounds indicated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the law of logic and experience and exceeding the bounds of the principle of free evaluation of evidence, or by

(2) Examining the following circumstances in light of the Defendant’s age, character, intelligence, and environment, the history of each of the instant crimes, the motive, means, and consequence of each of the instant crimes, and the circumstances after the crime, etc., the determination of the lower court’s imprisonment with prison labor for not less than 18 years cannot be deemed to be extremely unfair even if considering the circumstances asserted in the grounds of appeal.

B. As to the Prosecutor’s Grounds of Appeal

(1) In interpreting and applying a certain statutory provision, a court shall avoid unconstitutional interpretation and choose a method of interpretation consistent with the Constitution when it results in unconstitutional violation of the Constitution, and when it can be deemed that it is in conformity with the Constitution according to other statutory methods (see Supreme Court Order 91Da8, May 8, 1992, etc.). This would be the same in cases where there are unclear parts as to the scope of application, etc. of a certain statutory provision due to lack of legislative methods. From this perspective, if there is no explicit transitional provision as to retroactive application while establishing the Special Provision, which stipulates that the statute of limitations shall be suspended, extended, and excluded from the statute of limitations, and where there is no explicit transitional provision as to retroactive application, whether such provision can be applied retroactively should be determined with regard to whether there is a reasonable general principle to solve this problem. Therefore, the principle of due process and retroactive prohibition should not be seriously damaged by the idea of the rule of law, including the legal stability and the principle of protection of trust, based on the spirit of Articles 12(1) and 13(1).

(2) Of the facts charged in the instant case, the applicable provisions of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof to the point of quasi-rape of the disabled (hereinafter “rape of the disabled”) around May 2006 are Article 8 of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (Amended by Act No. 10258, Apr. 15, 2010); Article 297 of the former Criminal Act (Amended by Act No. 11574, Dec. 18, 2012) and Article 249(1)3 of the former Criminal Act (Amended by Act No. 8730, Dec. 21, 2007). As such, the statute of limitations is seven years pursuant to Article 249(1)3 of the former Criminal Procedure Act.

Meanwhile, Article 20 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter “the Sexual Crimes Punishment Act”) enacted and promulgated by Act No. 10258 on April 15, 2010 provides that “Article 20 of this Act shall also apply to any sexual crime committed before this Act enters into force and the statute of limitations has yet to expire,” while Article 20(3) of the Addenda of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter “the Act”) provides that “Article 297(2) of the Criminal Procedure Act and Article 29(3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes shall not apply to any female under the age of 13 and any female with physical or mental disability, despite Article 20(3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, which was enacted on November 17, 2011, to the exclusion of the statute of limitations period from quasi-rape and Article 29(2)9(2) of the Criminal Procedure Act.”

(3) The court below found the defendant guilty on the ground that the Criminal Procedure Act amended by Act No. 8730 of December 21, 2007 extends the period of the previous statute of limitations but Article 3 of the Addenda states the principle that "the previous provision shall apply to a crime committed before the enforcement of this Act" and that the retroactive effect shall not be recognized, in light of the fact that the transitional provision of the special law shall apply to a case where the statute of limitations is changed disadvantageous to the defendant in light of the fact that there is no explicit transitional provision on retroactive application of the special law, the previous provision in favor of the defendant shall apply to the case where the statute of limitations is changed unfavorable to the defendant. Since there is no express transitional provision on retroactive application of the statute of limitations in this case, it cannot be retroactively applied to the crime of quasi-rape of the disabled in this case since the statute of this case cannot be retroactively applied to the crime of this case, the court below reversed the judgment of the first instance on the ground that the statute of limitations has expired after the expiration of the statute of limitations.

(4) Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the lower court’s judgment is justifiable, and contrary to what is alleged in the grounds of appeal, there is no error of law by misapprehending the legal doctrine on the non-prosecution principle and the exclusion of statute of limitations, thereby adversely affecting the conclusion of the judgment. The Supreme Court precedents cited in the grounds of appeal are different from the instant case, and thus, are inappropriate

2. As to the case of the request for attachment order

Examining the reasoning of the judgment below in light of the records, it is just that the court below ordered the defendant to attach an electronic tracking device for ten years, considering that the defendant was in danger of recidivism of sexual crime and recidivism, and there is no violation of law as alleged in the grounds of appeal.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)