[1] Whether a “sexual crime” under Article 5(1)3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders includes a “juvenile protective disposition” under Article 5(1)3 of the Act on the Electronic Monitoring, etc. of Electronic Devices (affirmative)

[2] The case holding that in a case where a prosecutor appealed against the judgment of the court of first instance that dismissed the request for attachment order on the ground that the defendant committed a sexual crime twice and the recidivism was acknowledged, and the attachment order was requested under Article 5 (1) 3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, and a prosecutor appealed against the judgment of the court of first instance that dismissed the request for attachment order on the ground that one of the sexual crimes was merely subject to juvenile protective disposition, the case holding that a juvenile protective disposition is also included in "sexual crime" under Article 5

[1] Article 5(1)3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders provides that "where a sexual crime has been committed on at least two occasions (including where a final judgment was rendered for the crime of conviction)" as the requirements for a request for an attachment order, the phrase "where a sexual crime has been committed on at least two occasions," as prescribed in the above provision, is interpreted to meet the requirements for cases where the facts of having committed a sexual crime are recognized through a court's substantive deliberation and judgment. Therefore, unlike the case of a formal trial of acquittal or dismissal of a public prosecution without substantive deliberation and judgment or a public prosecutor's suspension of indictment, it is reasonable to interpret that the case where a juvenile protective disposition is committed on at least two occasions constitutes a case where a sexual crime is committed. Therefore, unlike the case where a court's formal trial or judgment without prosecution or a public prosecutor's suspension of indictment is rendered, the substantive

[2] In a case where the defendant committed two or more sexual crimes and filed an appeal against the judgment of the court of first instance, which dismissed the request for attachment order on the ground that he was merely subject to juvenile protective disposition, on the ground that the defendant committed a sexual crime and the recidivism was acknowledged, the case affirming the judgment of the court of first instance which dismissed the request for attachment order on the ground that the defendant received a protective order on the ground that he was merely subject to juvenile protective disposition, although Article 5 (1) 3 of the same Act was revised on April 15, 2010, the phrase "including a case where he received a final and conclusive judgment on a crime" added within the comprehensive title includes a criminal record of the past, it is clearly intended to include the requirement that "two or more times before the revision was committed," and it cannot be concluded that the above provision specifically excludes juvenile protective disposition, and it cannot be concluded that the ground for habitual recognition of sexual crimes might constitute an unlawful judgment of Article 5 (1) 1.

[1] 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 Criminal Offenders (Amended by Act No. 10257, Apr. 15, 2010); Article 5 (1) 3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders

[1] Supreme Court Decision 2009Do7282, 2009 Jeondo21 decided Oct. 29, 2009 (Gong2009Ha, 2069) Supreme Court Decision 2010Do1374, 2010 Jeondo2 Decided April 29, 2010

Defendant

Defendant and the respondent for attachment order and the prosecutor

Edives Sponsor

Attorney Su-soo et al.

Suwon District Court Decision 201Mo61, 2011 Jeon high-ranking20 decided May 27, 2011

All appeals filed by the defendant and the person subject to the attachment order and the prosecutor are dismissed.

1. Part of the defendant's case

A. Summary of grounds for appeal

As for the punishment sentenced by the court below (10 years of imprisonment), the defendant and the person requesting an attachment order (hereinafter referred to as the "defendant") claiming that the prosecutor is too unfasible and unfair.

B. Determination

The crime of this case requires strict punishment of the defendant in light of the following facts: (a) the defendant had been prepared to commit the crime of this case, such as a deadly weapon, and intruded upon the victim’s residence, and committed rape and forcibly taking property; and (b) the criminal quality is very poor; (c) the defendant was punished for the crime of this case on November 30, 2006 by imprisonment with prison labor for the same kind of crime other than robbery, which was sentenced to four years on November 30, 2006; and (d) the defendant again committed the crime of this case only two months after he was released despite a majority of the records of punishment for the crime of robbery; and (e) the victim was considerably

However, in light of the following circumstances: (a) the Defendant led to the confession of and the mistake against the Defendant; (b) the statutory penalty for the instant crime is “a prison term of death, life imprisonment or imprisonment with prison labor for not less than ten years”; (c) the ten-year imprisonment with prison labor, which is a sentence of the lower court, is the lowest punishment that has been mitigated after being sentenced to repeated punishment under the Act on Special Cases Concerning the Punishment of Specific Crimes; and (d) other various circumstances that form the condition for sentencing as indicated in the instant case, such as the character and conduct, intelligence and environment of the Defendant, the means and consequence of the instant crime, and the circumstances after the crime, etc., the sentence imposed by the lower court is too heavy or unreasonable. The

2. Part of the attachment order case

A. The judgment of the court below

The lower court dismissed the Defendant’s request for the attachment order of this case on the ground that the Defendant committed a sexual crime twice, and that there was a risk of recidivism, on the ground that the Defendant’s request for the attachment order of this case was a juvenile protective disposition, which was not a final and conclusive judgment of conviction, for a sexual crime, and thus, does not constitute a case of committing a sexual crime under Article 5(1)3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders on two or more occasions.

B. Summary of grounds for appeal

Since juvenile protective disposition is rendered after the court has completed substantial deliberation, it constitutes a requirement that sexual crime subject to juvenile protective disposition is "where a sexual crime is committed at least twice" and the court below dismissed the request for attachment order of this case even if it is recognized that there is a habitive wall in light of the criminal records of the defendant.

C. Judgment of the court below

(1) Article 5(1)3 of the Act on the Attachment, etc. of Electronic Monitoring, Etc. of Specific Criminal Offenders provides that “When sexual assault crimes have been committed on at least two occasions (including where a final judgment was rendered) and their habits have been recognized” as the requirements for a request for attachment order. The phrase “sexual assault crimes committed on at least two occasions” under the above provision is reasonable to interpret that if it is deemed that such crimes have been committed through substantial trial and determination by a court, it shall meet the requirements. Therefore, unlike the court’s substantive trial and determination, it shall not be construed that the above provision constitutes a sexual assault crime under Article 25 subparag. 7 of the Juvenile Act if it is deemed that a new protective order was committed on more than seven occasions (see Supreme Court Decision 2009Do7282, Oct. 29, 2009). However, unlike the prosecutor’s suspension of indictment, it is difficult to view that the above provision constitutes a sexual assault crime under Article 25 subparag. 15 of the Juvenile Act’s Act’s revised order. 20.

Therefore, the court below dismissed the defendant's request for attachment order on the ground that the defendant was subject to juvenile protective disposition, not a final judgment of conviction against a sexual crime, and it does not constitute two or more sexual crimes under Article 5 (1) 3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, and thus, it erred by misapprehending the legal principles.

(2) Furthermore, in light of the fact that there are multiple criminal records, such as robbery, theft, etc., with respect to whether the defendant has a sexual crime, the sexual crime, other than the crime in this case, only the records of having received a decision to send the case to the Juvenile Department due to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (special rape) on December 24, 1993, which was about about about 17 years prior to the crime in this case, and the probation officer’s opinion on the investigation before the request, it is evaluated that the defendant did not have any sexual deviation and cognitive distortion against sexual violence, it is difficult to view that the defendant has a sexual crime habit, and there is no other evidence to acknowledge it, and therefore, the conclusion of the judgment below dismissing the request for the attachment

3. Conclusion

Therefore, the appeal by the defendant and the prosecutor is dismissed in accordance with Article 364(4) of the Criminal Procedure Act and Article 35 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders since the appeal by the defendant and the prosecutor is without merit.

Judges Choi Jin (Presiding Judge) Kim mutual name and Kim Tae-hun

1) In light of the unique characteristics of juvenile protection procedures, there is a view that a juvenile protective disposition does not constitute a sexual crime when the juvenile is committed. See Seoul High Court Decision 2010No933, 2010No56 decided July 1, 2010.