Where a sexual crime against a child or juvenile constitutes a sexual crime subject to registration under Article 32(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, whether such crime is subject to disclosure order and notification order under Articles 37 and 41 of the same Act (negative)

Articles 32(1), 37, and 41 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012); Articles 38 and 38-2 of the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012)

Supreme Court Decision 2011Do15062, Nov. 24, 2011 (Gong2012Sang, 100) Supreme Court Decision 201Do15062, 2011Do250 Decided January 12, 2012

Defendant

Defendant

Law Firm Hong Law, Attorney Don-ju

Seoul High Court Decision 2012No1561 decided October 18, 2012

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

1. The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

In light of the court below's decision and the evidence adopted by the court below, the court below's finding the defendant guilty of the facts charged in this case on the ground that Co-Defendant 1's statement was reliable on its grounds as stated in its holding. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the principle of logic and experience or by misapprehending the legal principles

2. We examine ex officio.

A. Article 41(1)1 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended and promulgated by Act No. 10258, Apr. 15, 2010; hereinafter “Special Act on the Punishment, etc. of Sexual Crimes”) provides that an order to notify “a person who has committed a sexual crime subject to registration” among persons subject to disclosure order shall be issued under Article 32(1) of the same Act. In addition, Article 37(1) of the same Act provides that a person subject to disclosure order shall be excluded from disclosure obligation under Article 38 of the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10260, Apr. 15, 2010; hereinafter “Act No. 10260, Apr. 15, 2010”).

As such, the Act on Special Cases concerning the Disclosure of Personal Information limits a person who commits a sexual crime against a child or juvenile by excluding a person who commits a sexual crime against a child or juvenile subject to an order to disclose or notify personal information, thereby limiting such person to a person who commits a sexual crime against a child or juvenile. As to a person who commits a sexual crime subject to an order to disclose or notify personal information, Articles 38 and 38-2 of the Child Protection Act

Therefore, even if a sexual crime against a child or juvenile constitutes a sexual crime subject to registration under Article 32(1) of the Act on Special Cases concerning the Prevention of Sexual Violence, only the issue is whether such crime is subject to disclosure order and notification order under Articles 38 and 38-2 of the Act on Special Cases concerning the Protection of Child Sex Offenses (Act No. 10260), and does not constitute an order for disclosure and notification under Articles 37 and 41 of the Act on Special Cases concerning the Prevention of Sexual Violence (see Supreme Court Decision 2011Do15062, Jan. 12, 2012).

However, Article 38(1)1 of the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 9765, Jun. 9, 2009; hereinafter “Act No. 9765”) provides that “a person who has committed a sexual crime against a child or juvenile under the age of 13” was one of the persons subject to disclosure order, and Article 10260 of the Child Sex Protection Act (Act No. 10260) revised the Act as “a person who has committed a sexual crime against a child or juvenile.” In addition, Article 38-2(1)1 of the Child Sex Protection Act (Act No. 10260) provides that “a person who has committed a sexual crime against a child or juvenile” among those subject to disclosure order under Article 38 of the Child Sex Protection Act (Act No. 10260) shall also be sentenced to notification order.

Meanwhile, Article 1 of the Addenda of the Child Protection Act (Act No. 9765) provides that “this Act shall enter into force on January 1, 2010,” and Article 3(1) of the Addenda provides that “The amended provisions of Articles 33, 34, 38, and 39 shall apply to persons who have committed sex offenses against children and juveniles first after the enforcement of this Act and have become final and conclusive: Provided, That the previous provisions shall apply to the registration and inspection, etc. of persons subject to registration of personal information under the previous provisions at the time of the enforcement of this Act, and Article 1 of the Addenda of the Child Protection Act (Act No. 10260) provides that “this Act shall enter into force on the date of its promulgation: Article 31-2, 38-2, and 38-3 shall enter into force on the date of its enforcement; Article 4 of the Addenda provides that “The amended provisions of the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 1060) shall enter into force on the first 70th Amendment of the Act.

B. As to the instant case, the facts charged are crimes committed on February 1, 2004, which were committed by the Defendant, and subject to the order of disclosure and notification under the Act on the Protection of Juveniles from Sexual Abuse (amended by Act No. 7801, Dec. 29, 2005). Therefore, this constitutes crimes under Article 20(2)7 and Article 2 subparag. 1 of the Act on the Protection of Juveniles from Sexual Abuse (amended by Act No. 7801, Dec. 29, 2005). According to the aforementioned legal doctrine, this does not constitute not only the Act on Special Cases of Sexual Violence but also the order of disclosure and notification under the Child Sex Protection Act (Supreme Court Decision 2011Do17241, Mar. 29, 2012).

Nevertheless, the court below erred by misapprehending the legal principles on the scope of application under Articles 37 and 41 of the Sexual Violence Special Act, which held that the facts charged in this case are subject to disclosure and notification orders under Articles 37 and 41 of the Sexual Violence Special Act, thereby adversely affecting the conclusion of the judgment. Ultimately, the part of the court below’s order of disclosure and notification cannot be reversed.

C. Meanwhile, since an order to disclose and notify information under Articles 37 and 41 of the Sexual Violence Act is an incidental disposition that declares simultaneously with a judgment on a sexual crime subject to registration, if all or part of such order is unlawful, the entire part of such order shall be reversed, even if there is no illegality in the remaining part of the defendant's case.

3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of 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.

Justices Ko Young-han (Presiding Justice)