In a case where an act that did not constitute a crime is subject to the punishment of a single comprehensive crime by newly establishing the elements of a crime, whether it may be punished by applying the newly established laws and regulations regarding the act before the newly established comprehensive crime punishment is enforced (negative) / Whether a crime before the newly established element of a crime can be punished as a habitual indecent act by force (negative), and in such a case, whether the requirements for prosecution shall be satisfied (affirmative)

Articles 1(1), 37, 298, and 305-2 of the Criminal Act

Defendant

Prosecutor and Defendant

Attorney Oap-sik

Seoul Northern District Court Decision 2015No860 decided September 24, 2015

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court, the lower court’s determination that the instant facts charged (excluding the part on acquittal and dismissal of the grounds) were guilty on the grounds indicated in its reasoning is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on “special circumstances where personal information should not be disclosed” as stipulated in Article 2(1)3 and (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”), the scope of sexual crimes, Article 47(1) of the Sexual Violence Punishment Act, Article 49(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “Juvenile Protection Act”).

B. In addition, the crime of habitual indecent act by compulsion (Article 305-2 of the Criminal Act) is subject to aggravated punishment of the crime of indecent act by compulsion (Article 298 of the Criminal Act) among the crimes listed in Article 2(1)3 of the Sexual Violence Punishment Act, and is subject to disclosure order under Article 47(1) of the Sexual Violence Punishment Act and Article 49(1)2 of the Juvenile Sex Protection Act, since it constitutes a sexual crime under Article 2(2) of the Sexual Violence Punishment Act. On the contrary, the Defendant’s ground of appeal that the disclosure order does not exist in the case of habitual indecent act by compulsion, or that the disclosure order was issued based on the unconstitutional law is not acceptable.

C. Meanwhile, the purport of the lower judgment’s incomplete deliberation on sentencing constitutes an allegation of unfair sentencing. However, under 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 with or without labor for not less than ten years has been imposed. As such, in this case where a more minor sentence has been imposed on the Defendant, the argument that the above assertion and the determination of the sentence are unfair

2. As to the Prosecutor’s Grounds of Appeal

A. In a case where an existing penal law on a single comprehensive crime is amended with regard to the expression or sentence, not to mention the applicable statutory provisions, but to the act that did not constitute a crime at the beginning is subject to the punishment of a single comprehensive crime by newly establishing the elements of a crime, the act before the newly established penal law is enforced shall not be punished by applying the newly established statutory provisions (Article 1(1) of the Criminal Act). The same applies to a case where the newly established penal law is the constituent element of punishing a habitual offender. Thus, the crime before the newly established penal law is enforced cannot be punished as a crime of habitual indecent act, but can only be punished as a crime of indecent act based on the law at the time of the act. In such a case, the elements of the indictment are not about the crime of habitual indecent act, but about the crime of indecent act of indecent act.

Examining the reasoning of the judgment below in light of the record, it is justifiable to maintain the judgment of the court of first instance which rendered a judgment dismissing the prosecution on the ground that each of the charges of habitual indecent act by compulsion, which was included in the facts charged of the crime of habitual indecent act by compulsion, is invalid due to the lack of legitimate accusation by the above victims, and thus, the procedure of prosecution is invalid in violation of the provisions of the law. The prosecutor’s ground of appeal that the punishment law itself is applied to the crime of habitual indecent act by compulsion, and the punishment of habitual indecent act should be imposed on the crime prior to the new establishment, including the crime of habitual indecent act by compulsion, cannot be accepted, and there is no error of law by misapprehending the legal principles on habitual indecent act by misapprehending the legal principles on habitual indecent act.

B. Meanwhile, although the prosecutor appealed to the entire judgment of the court below, he did not state specific reasons in the petition of appeal as to the guilty portion, and the appellate brief does not state the grounds for objection.

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 Kim Chang-suk (Presiding Justice)