2019Do10802 Public Performance obscenity

A

Defendant

Daejeon District Court Decision 2018Do2186 Decided July 10, 2019

November 14, 2019

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court.

The grounds of appeal are examined.

1. Determination on the part of the defendant's case

Based on its stated reasoning, the lower court convicted the Defendant of the instant facts charged. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and records, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending

2. Determination on the addition to an employment restriction order

(a)in respect of the addition of employment restrictions orders to child and youth-related institutions;

(1) the amendment of the provision on an employment restriction order

A) Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15352, Jan. 16, 2018) provides that a person who was sentenced to a punishment or medical treatment and custody for a sex offense against children or juveniles or a sex offense against adults (hereinafter “sex offense”) shall not be able to operate a child or juvenile-related institution, etc., or to provide employment or actual labor to a child or juvenile-related institution, etc., for ten years from the date the execution of such punishment or medical treatment and custody is terminated or suspended or exempted (hereinafter “previous provision”).

B) The Constitutional Court ruled that the previous provision imposing the restriction on employment of 10 years uniformly on the basis of the past records of sexual crime infringes on the freedom of occupation (see, e.g., Supreme Court Order 2015Hun-Ma98, Apr. 28, 2016). Accordingly, Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter referred to as the "Revised Act") (hereinafter referred to as the "Revised Act"), which was amended by Act No. 15352, Jan. 16, 2018, when a sentence of imprisonment or medical treatment and custody is imposed on a sex offense, the court held that the sentence should not be imposed on a certain period from the date when the execution of all or part of the sentence or medical treatment and custody is completed or suspended or exempted (hereinafter referred to as "period of restriction on employment"), or that an employment restriction order should not be imposed on a child or juvenile-related institution, etc., and that the employment restriction order should not be imposed when the case is clearly low.

C) Meanwhile, the Addenda to the amended Act on the Protection of Juveniles provides for the following matters: The amended Act on the Protection of Juveniles from Sexual Abuse shall enter into force six months after the date of its promulgation (Article 1); the amended Act shall also apply to a person who has committed a sex offense before the amended Act on the Protection of Juveniles from Sexual Abuse and has not received a final and conclusive judgment (Article 3). Notwithstanding the previous provisions, the period of restriction on employment of a person subject to employment restrictions pursuant to the previous provisions shall be five years, three years, and one year, according to the scope of the final and conclusive principal sentence (or five years from the date of the completion or suspension or exemption of the execution of all or part of the sentence or medical treatment and custody (hereinafter the same shall apply), and three years from the date of the completion or exemption of the execution of the sentence, or a person for whom the sentence becomes final and conclusive after being sentenced to imprisonment with or without prison labor for not more than three years, or one year from the date of the final and conclusive decision of unconstitutionality of the former Act on the Protection of Juveniles from Sexual Abuse (Article 3(1).

2) Facts of recognition

The record reveals the following facts.

A) The summary of the facts charged in the instant case is that “the Defendant publicly obscenity committed an obscene act by doing self-defacing the victim’s rears on the street on March 20, 2017.”

B) On July 17, 2018, the enforcement date of the Act on the Protection of Juveniles from Sexual Abuse, the first instance court convicted the Defendant of the instant facts charged, sentenced the Defendant to a fine of KRW 4 million, and ordered the completion of sexual assault treatment programs for 40 hours, and the burden of litigation costs. On this basis, only the Defendant appealed on the ground of mistake of facts and misapprehension of legal principles.

C) The lower court, while rendering a judgment on July 10, 2019, reversed the first instance judgment ex officio without any particular reason, and sentenced the Defendant to the same punishment as that of the first instance court in accordance with the amended provisions, and sentenced the Defendant to an employment restriction order for one year against the institutions related to children and juveniles.

3) Determination

A) With respect to a case for which only the defendant appealed an appeal, no sentence more severe than that of the judgment of the court of first instance (Article 368 of the Criminal Procedure Act), and whether the sentence of the court below was modified disadvantageous to the defendant should be determined based on the severity of the punishment under the Criminal Act, but rather on the basis of the overall consideration of the order (see, e.g., Supreme Court Decision 2009Do12967, Feb. 11, 2010). An employment restriction order is a type of treatment in society against the criminal, not a punishment itself, but a security measure. However, since the freedom to choose occupation is substantially restricted, concurrent imposition of a new employment restriction order while sentencing the same punishment prescribed in the judgment of the court of first instance is not permitted since it was modified to the disadvantage of the defendant when considering the whole and in substance (see Supreme Court Decision 2012Do8736, Sept. 27, 2012).

B) In light of the above facts and the contents and purport of the amended provisions and the supplementary provisions of the Act on the Protection of Juveniles from Sexual Abuse, the Defendant, at the time of the pronouncement of the first instance judgment, is subject to employment restrictions only by the judgment of the court in accordance with the amended provisions, and thus, insofar as the first instance court did not render an employment restrictions order necessary, the Defendant should not be subject to employment restrictions on juvenile-related institutions, etc.

C) Nevertheless, in the instant case where only the Defendant appealed, the lower court sentenced the Defendant to an employment restriction order for one year by applying the amended provisions pursuant to Article 3 of the Addenda to the Act on the Protection of Juveniles from Sexual Abuse. Ultimately, compared to the first instance judgment and the lower judgment, the lower court’s concurrent imposition of an employment restriction order for one year to a new institution related to children and juveniles pursuant to the amended provisions is not allowed since the lower court’s overall and substantial change unfavorable to the Defendant. Accordingly, the Defendant’s ground of appeal pointing this out

B. As to the addition of employment restriction orders on welfare facilities for disabled persons

Before June 12, 2019, the first instance court, which was amended by Act No. 15904, Dec. 11, 2018 (hereinafter referred to as the "Revised Act on Welfare of Persons with Disabilities"), sentenced the Defendant to a fine of KRW 4 million as a public performance and obscene crime. If the first instance court is finalized without filing a lawsuit without filing a lawsuit, the Defendant is subject to limitation of employment for welfare facilities for persons with disabilities for one year in accordance with special provisions of Article 3(1)3 of the Addenda to the amended Act on Welfare of Persons with Disabilities.

However, in the instant case where only the Defendant filed an appeal, the lower court rendered a judgment of conviction against the Defendant on July 10, 2019, which was after the enforcement date of the amended Act on Welfare of Persons with Disabilities, and sentenced a fine of KRW 4 million to the Defendant who committed sexual crimes under Article 2(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes before the enforcement of the amended Act on Welfare of Persons with Disabilities, at the same time, issued an employment restriction order for one year pursuant to Article 2 of the Addenda to the amended Act on Welfare of Persons with Disabilities and the main text of Article 59-3(1) of the amended Act on Welfare of Persons with Disabilities. Therefore, the lower judgment cannot

3. Scope of reversal

For the foregoing reason, the part of the judgment of the court below regarding the employment restriction order for children and youth-related institutions should be reversed. Since the above employment restriction order is an incidental disposition that the court issues simultaneously with the judgment of the defendant's case, the remaining part of the defendant's case shall be reversed.

4. Conclusion

Therefore, the lower judgment is entirely reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 200

Justices Park Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan in charge