In a case where only the defendant appealed, whether the court’s issuing an attachment order to the prosecutor’s electronic device attachment order which was first requested in the appellate trial violates the principle of prohibition of disadvantageous alteration (negative)

Article 5(4) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders

Defendant

Defendant and the respondent for attachment order

Attorney Park Jong-young

High Court Decision 2010No001 Decided June 3, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. Defendant case

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is permitted. Thus, in this case where the defendant and the requester for an attachment order (hereinafter referred to as the "defendant") rendered a minor sentence, the argument that the amount of punishment is unreasonable is not legitimate grounds for appeal

2. As to the attachment order case

Examining the lower judgment and the evidence duly admitted by the first instance court, the lower court is justifiable to have determined that the instant case was the cause of the claim and the risk of recidivism.

In addition, Article 5(4) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders provides that “The request for an attachment order under paragraphs (1) through (3) shall be made by the time of closing argument in the appellate trial of the specific criminal case in which the prosecution is instituted,” and there is no provision that the defendant cannot request an attachment order in the case where only the defendant appealeds. The above provision recognizes the seriousness of sexual crime damage, allowing the appellate court to make the time when the request for the attachment order of an electronic device was made until the appellate court. This provision appears to have been prescribed in the court’s presumption that the necessity of the attachment order was revealed only when the defendant appealed, it is reasonable to deem that the court issuing the attachment order upon the request of the prosecutor first requested in the appellate court does not conflict with the principle of prohibition of disadvantageous alteration even if only the defendant appealed.

Therefore, the lower court’s dismissal of the Defendant’s appeal against the Defendant, and the issuance of the instant attachment order upon the request of the military prosecutor, is justifiable. In so doing, the lower court did not err by failing to comply with the principle of prohibition of disadvantageous alteration

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 Lee Hong-hoon (Presiding Justice)