2012Do4662 Violation of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof.

(Special Rape), special robbery, punishment of sexual crimes and victims thereof;

Article 14 (Death or Injury Resulting from Rape)

Defendant

Defendant

Attorney Lee Byung-il (Korean National Assembly Line)

Daejeon High Court Decision 2011No492 Decided April 4, 2012

July 12, 2012

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal No. 1, in order to establish a special rape under Article 6 (1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (amended by Act No. 10258, Apr. 15, 2010; hereinafter referred to as the "sexual Rape Act"), at least two persons under Article 6 (1) of the same Act should be jointly involved in a conspiracy as a subjective requirement and objective requirement for committing a crime under Article 297 of the Criminal Act. Since the conspiracy does not require any legal penalty, the conspiracy is not required, a joint processing of crime may be conducted directly or indirectly through the crypted intent, and it does not necessarily require a prior conspiracy process, and its implementation is deemed to have a cooperative relationship at time or at a place (see, e.g., Supreme Court Decisions 97Do1757, Feb. 27, 199; 200Do2874, Aug. 27, 2004).

In addition, the crime of injury resulting from rape under Article 9 (1) of the former Sexual Exposure Act (amended by Act No. 9110 of Jun. 13, 2008) is established when a person who committed a special rape, etc. under Article 6 (1) of the same Act causes injury to a person who committed a crime. In the case of an aggravated aggravated crime, the result of the crime is an aggravated crime. In the case of an aggravated aggravated crime, it is sufficient that the perpetrator does not intend the result, and that the occurrence can be predicted.

The judgment below held that there is no need to establish the intent to jointly act the basic act and to jointly act the result (see Supreme Court Decision 2007Do6188, Jun. 26, 2008, etc.).

As stated in the judgment of the court of first instance, the court below acknowledged that the defendant committed special rape under Article 6 (1) of the Sexual Rape Act against the victims by taking into account the following circumstances: (a) the defendant conspiredd to commit rape against the defendant 2, 3, and victims at time and at a time and place; and (b) shared the commission of each of the above crimes; and (c) the court below determined that the defendant committed the crime of bodily injury resulting from rape under Article 9 (1) of the Sexual Rape Act against the victim, by taking into account the circumstances in its holding.

Examining the reasoning and records of the judgment below in light of the aforementioned legal principles, the above judgment of the court below is just and there is no error in the misapprehension of legal principles as to the requirements for establishment of a joint principal or a joint principal, as alleged in

2. As to the ground of appeal No. 2, Article 37, Article 38 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes enacted and promulgated by Act No. 10258 on April 15, 2010 (hereinafter “Special Cases concerning the Punishment, etc.”) provides for an order to disclose personal information under Articles 41, and Article 42 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and Article 41, and Article 42 of the Addenda of the Act provide that “this Act shall enter into force on the date of its promulgation: Provided, That Articles 32 through 42 and 43(1) and (3) shall enter into force on the date one year has passed after the date of its promulgation, and Article 2(2) of the Addenda of the Act provides that “Article 37, 38, 41, and 42 shall apply to cases concerning the disclosure and notification of personal information for the first time after the first time of enforcement of the order.”

As such, the Act on the Special Cases concerning the Disclosure and Notification of Personal Information stipulates the timing for the implementation of the system, but does not impose any restriction on the time of the crime. The introduction of the Act on Special Cases concerning the Disclosure and Notification of Personal Information to adults is not only high recidivism rate but also sex offenders against children. Thus, the purpose of the Act on Special Cases concerning the Disclosure of Personal Information to prevent sex offenses against adults as well as sex offenses against children and juveniles by disclosing personal information to the public is to prevent sex offenses against adults, and the Act on Special Cases concerning the Disclosure and Notification of Personal Information is strong in the nature of security measures to prevent sex offenses, unlike punishment to respond to sex offenders. In light of the above, the Act on Special Cases concerning the Disclosure and Notification of Personal Information has a strong nature of security measures to prevent sex offenses prior to the implementation of Articles 37 and 41 of the Act on Special Cases concerning the Protection of Sexual Violence, even if it has committed such crimes prior to the enforcement of Article 37 and 41 of the same Act, it can be said that the above provision has been ordered to disclose or notify after the enforcement.

Based on the premise that the Defendant’s crime of violation of each of the sexual traffic laws constitutes a sexual crime subject to registration under Article 32(1) of the Act on Special Cases concerning the Punishment of Sexual Violence, the lower court may determine that the Defendant issued an order to disclose and notify the Defendant for five years by applying Articles 2(2), 37(1)1, and 41(1)1 of the Addenda of the same Act.

Examining the above facts in light of the legal principles as seen earlier, the above measures by the court below are just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on disclosure or notification order under the Act on Special Cases Concern

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul

Justices Min Il-young

Justices Park Poe-young