[1] Whether the Defendant’s personal information registration, disclosure order, and notification order system established under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes applies retroactively to the sexual crimes subject to registration “criminally committed” prior to the enforcement of the pertinent provision (negative)

[2] Where the Defendant was indicted for violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes due to special robbery, rape, etc., but the first instance court ordered disclosure order and notification order by deeming that each of the above crimes constituted a "sexual crime subject to registration" under the same Act, the case holding that the above disclosure order and notification order system applies only to the sexual crime subject to registration as "crime subject to registration" after the enforcement date of the pertinent provision, and that each of the above crimes committed before and after the enforcement of the above provision

[1] As to the time of the enforcement of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, which was enacted on April 15, 2010, Article 1 of the Addenda to the Sexual Crimes Act provides that the registration of personal information, the disclosure order, and the notification order shall be enforced from the date one year has passed after its promulgation. As to the application examples, Articles 32 through 36 of the Addenda to the Personal Information Registration Act shall apply from the “person whose first conviction was affirmed after the enforcement of the provision,” and Articles 37, 38, 41, and 42 of the Addenda to the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, to the “person subject to the first disclosure order or notification order after the enforcement of the said provision,” and it is reasonable to interpret the aforementioned provisions retroactively to the effect that Article 10 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse, even if a person subject to registration committed a sexual crime before April 16, 2011, which became final and conclusive after the enforcement date of the aforementioned provision.

[2] In a case where the Defendant was indicted of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes by committing special robbery, rape, etc. (hereinafter “the Sexual Violence Act”), and the first instance court rendered an order to disclose registered information and issued a notification order under Article 37(1)1 of the Sexual Exposure Act by deeming that each of the above crimes constitutes a “sexual crime subject to registration” under Article 32 of the Sexual Exposure Act, the case held that the first instance court’s order to disclose and notify the registered information under Article 41(1)1 of the Sexual Exposure Act applies only to a sexual crime subject to registration as “crime subject to registration” after April 16, 201, the enforcement date of the pertinent provision, on the grounds that the first instance court, which issued an order to disclose and notify each of the above crimes as a sexual crime subject to registration, is unlawful.

[1] Article 13(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Articles 32, 37(1)1, and 41(1)1 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes; Articles 1 and 2(1) and (2) of the Addenda ( April 15, 2010) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Articles 1 and 4 of the Addenda (Act No. 10260, April 15, 2010) / [2] Article 13(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Articles 3(1) and (2), 14, 32, and 37(1)1 and 41(1)1 of the Addenda (Article 2010) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes; Articles 13(1) and (2) of the Criminal Procedure Act

Defendant

Defendant and the respondent for attachment order

Edives Sponsor

Attorney Kim Jong-soo

Seoul Eastern District Court Decision 2010Kahap430, 2010 Jeonwon19 decided April 22, 2011

The part of the judgment of the court below regarding the defendant case shall be reversed.

A defendant shall be punished by imprisonment for 13 years.

one person (date) seized shall be confiscated (No. 8).

The appeal filed by the respondent against the part of the attachment order case in the judgment below is dismissed.

1. Part of the defendant's case

A. Summary of grounds for appeal

(1) Mental disorder;

At the time of committing each of the crimes in this case, the Defendant was in a state of mental illness due to depression, uneasiness, or mental disorder.

(2) Unreasonable sentencing

The punishment sentenced by the court below (15 years of imprisonment) is too unreasonable.

B. Determination

(1) Ex officio destruction

The violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes among the instant crimes is committed on September 11, 2010 (special robbery and rape), October 3, 2010 (Attempted Special Robbery and Rape), and October 11, 2010 (Attempted Rape). As such, the lower court deemed that each of the instant crimes constitutes a “sexual crime subject to registration” under Article 32 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and ordered the Defendant to disclose registered information pursuant to Article 37(1)1 of the same Act and issued an order to notify the registered information pursuant to Article 41(1)1 of the same Act.

Article 1 of the Addenda to the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 10258, Apr. 15, 2010) provides that with respect to the period of implementation of the registration of personal information, disclosure order, and notification order, Article 1 of the Addenda to the same Act shall be implemented one year after its promulgation, and Article 2 of the Addenda to the same Act shall apply mutatis mutandis to the cases of application from “a person who has been finally and conclusively convicted after the enforcement of the provision,” and Articles 37, 38, 41, and 42 of the Addenda to the Act on Special Cases Concerning the Registration, etc. of Personal Information shall apply to “a person who has been sentenced to the first disclosure order or notification order after the enforcement of the provision,” and there is no room to interpret that even if a person who has committed a sexual crime subject to registration before April 16, 2011, which is the enforcement date of the relevant provision, is retroactively applied to the case after the enforcement date.

However, since security measures such as disclosure order and notification order are clearly different from punishment and essence, its retroactive application should be exceptionally permitted in terms of the principle of the rule of law, individual rights and freedom, and stability of legal life, and in cases where there is no clear provision, it is possible for the court to interpret the relevant provisions in a way that can retroactively apply without combining the Constitution. Article 1 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse as amended by Act No. 10260 on the same day through discussions similar to the enactment of the Act on Special Cases Concerning the Punishment of Sexual Crimes provides that the revised provision concerning disclosure order shall enter into force on January 1, 201, and Article 4 of the Act explicitly excludes retroactive effect on the grounds that “the first sex crime subject to disclosure order or the first time after the enforcement of the Act on Special Cases Concerning the Protection of Children and Juveniles against Sexual Crimes,” it is difficult to interpret the aforementioned provision concerning retroactive effect to the effect that the aforementioned provision concerning retroactive effect should be different from the previous provision concerning the punishment of sexual crimes subject to registration.”

Therefore, among the judgment of the court below, the part of the disclosure order and notification order cannot be reversed, and the disclosure order and notification order are incidental disposition that are sentenced simultaneously with the judgment of the sexual crime subject to registration, and the part of the disclosure order and notification order are illegal, the entire defendant case shall be reversed.

(2) As to the assertion of mental disorder

According to the evidence duly adopted and examined by the court below, even though the defendant's argument about the mental disorder of the court below was based on the ground of ex officio destruction, it is still subject to the judgment of this court, and according to the evidence duly adopted and examined by the court below, it is recognized that the defendant received medical treatment twice in the spirit of depression and uneasiness, but in light of the course and process of each of the crimes of this case, the defendant's behavior before and after the crime of this case, the time and frequency of medical treatment, etc., it is not deemed that the defendant had no or weak ability to discern things at the time of each of the crimes of this case due to the symptoms of this case. Thus, the above argument by the

2. Part of the attachment order case

As long as the Defendant filed an appeal against the accused case, it shall be deemed that the case subject to attachment order has filed an appeal in accordance with Article 9(8) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders. However, there is no indication of the grounds for appeal regarding the grounds for appeal submitted by the accused and the defense counsel, and there is no ground for reversal after examining the judgment below ex officio.

3. Conclusion

Therefore, the judgment of the court below on the part of the defendant's case is reversed under Article 364 (2) and (6) of the Criminal Procedure Act without examining the defendant's allegation of unfair sentencing, and it is decided as follows through the pleading. Since the defendant's appeal on the part of the attachment order case is without merit, it is dismissed under Article 35 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders and Article 364 (4) of the Criminal Procedure Act.

The summary of the facts charged and the evidence acknowledged by this court is the same as the entries in the corresponding column of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 3(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Articles 334(2) and 297 of the Criminal Act [the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010; hereinafter the same shall apply], Articles 14 and 3(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Articles 342, 334(2), and 297 of the Criminal Act (the main sentence of Article 42 of the former Criminal Act), Articles 14 and 34(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Articles 330 and 297 of the Criminal Act [the maximum of imprisonment for a limited term], Articles 4 and 33(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Articles 330 and 297 of the Criminal Act (the maximum of imprisonment for a limited term)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act (within the limit of the proviso of Article 42 of the former Criminal Act with respect to the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Special Robbery, Rape, etc.), violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Larceny, Rape, etc.), and special robbery, within the limit of the proviso of Article 42

1. Attempted mitigation;

Articles 26 and 55 (1) 3 of the Criminal Act / [Article 26 and 55 (1) 3 of the Criminal Act concerning a suspended attempted crime and a violation of the Act on Special Cases concerning the Punishment,

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 (limited to the punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Crimes with the largest punishment) of the Criminal Act and concurrent crimes within the scope of the proviso to Article 42 of the Criminal Act: Provided, That the lowest sentence shall be based on the punishment prescribed in the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Special Robbery, Rape, etc.) against the victim Nonindicted

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

Each of the crimes of this case committed by the defendant habitually intrudes on the house in which women live, and thus, the nature of the crime is not very good. The defendant was punished several times on June 10, 1998 by imprisonment with prison labor for robbery, rape, etc. at Seoul High Court, which had been sentenced to ten years on June 10, 1998, and had served for a long time. However, even after the last release on July 20, 2009, the defendant committed each of the crimes of this case again within the period of repeated crime without being aware of it, even after the release from Seoul High Court, and again committed each of the crimes of this case within the period of repeated crime, even though the number of the crimes and the victims were many, they did not recover from damage, and the victim did not receive a letter from the victims.

However, the punishment shall be determined as ordered by taking into account the following factors: the defendant has led to all crimes, the three times of sexual assault crimes committed by himself/herself, the fact that the defendant himself/herself has committed a crime, and the age, character and conduct, health conditions, and family relationship of the defendant in the arguments of this case, such as the age, character and conduct, health conditions, etc. of the defendant.

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