Defendant and the respondent for attachment order

Both parties

Madhee, Park Sang-hee (criminals) and Park Jong-chul (public trial)

Attorney Yellow Sung-sung (Korean)

Jeju District Court Decision 2013Gohap171, 2014Gohap26 (Joint), 2013 Jeon high-ranking33 (Joint) and 2014 Jeon high-ranking3 (Joint) Decided August 28, 2014

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for 18 years.

The information on the accused shall be disclosed and notified for ten years.

To the person subject to the request for attachment order, the attachment of an electronic tracking device shall be ordered for ten years.

Matters to be observed in the attached Form shall be imposed on the person requested to attach an attachment order.

Of the facts charged in the instant case, the charge of violation of the Act on the Punishment of Sexual Crimes and Protection of Victims (rape-rape, etc. against the disabled) on May 206 is acquitted.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misapprehension of legal principles

A) The Defendant and the person to whom the attachment order was requested (hereinafter “Defendant”) did not have sexual intercourse with the victim’s high ○○, and the person to whom the attachment order was requested, as indicated in paragraphs (1) and (2) of the facts constituting the crime indicated in the lower judgment, and committed an act identical to those described in paragraphs (3) through (5) of the facts constituting the crime in the lower judgment. However, the Defendant and the person to whom the attachment order was requested (the Defendant appears to the purport that he did not use the state of the mentally disabled person’s

In addition, it is difficult to deem the victim △△△△△△ to be a cadastral disabled person, and the defendant did not have sexual intercourse or indecent act by recognizing that he was sexually disabled and exercising his authority on his part (the defendant did not explicitly assert that △△△△△△△ was not aware of the mental disability of the victim as the grounds for appeal, but he stated that the victim and △△△△△△△△△△△ was unable to recognize that △△△△△ was a cadastral disabled person during the trial from the lower court to

B) Of the facts charged in the instant case, Article 20(3) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012) provides that the statute of limitations has already expired seven years after the statute of limitations period was expired, among the crimes charged in the instant case, Article 20(3) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012), which provides that the statute of limitations shall not apply to sexual crimes against women with physical or mental disability, is not applicable to the instant case in accordance with the principle

2) Unreasonable sentencing

The sentence of the lower court (one-eight years of imprisonment, etc.) is too unreasonable.

(b) Prosecutors;

The sentence of the court below is too uneasible and unfair.

2. Determination:

A. misunderstanding of facts or misunderstanding of legal principles concerning the statute of limitations (the law of limitations is examined as separate items).

1) Whether an act of sexual intercourse with the victim ○○ or a pregnant ○○

In light of the following facts and circumstances inferred from the evidence duly admitted and investigated by the court below, the defendant's sexual intercourse with the victim's mental disability can be acknowledged. Thus, the above assertion by the defendant and the defense counsel cannot be accepted.

A) On July 2013, the head of the young group of the instant apartment, Nonindicted Party 1, the head of the young group of the young group of the young group of the apartment, after hearing the speech that “I would have been employed by the young group of the young group of the young group of the young group of the young group of the young group of the young group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of

On July 26, 2013, Nonindicted Party 1, etc. visited Jeju Women and School Violence Victims Support Center (hereinafter referred to as “Capsaw Support Center”) on July 26, 2013, and reported the damage and stated the damage by the victims around that time.

B) The victim high-level ○○ and YO○○’s intelligence index are 63,64 respectively, and the social index remains lower than 44 and 42, and the social age is merely 7.08 and 7.6, and it can be operated only in a daily life to the extent that it can be acquired through repeated practice.

Generally, intellectually disabled persons are not capable of expressing their own will and they have revealed time to reveal the fact of damage even if they are sexual crimes due to lack of ability, and are more likely to be revealed by the surrounding persons than by themselves to recognize the fact of sexual assault. In this case, the victim high ○○ and the victim 00 are mentally disabled persons who fall under Grade 3 with intellectual disability and Grade 1 with intellectual disability, and a considerable time has elapsed from the time when they report sexual crimes after the occurrence of sexual crimes.

C) The first statement recording of the victims was made on August 1, 2013. According to each entry in the record of the statement recording at the time, the victim's high ○○, and Mo○○ stated to the effect that the victims were damaged by the Defendant, but the content thereof was only shot and did not specifically describe the fact of damage.

However, the victims consistently expressed that there was sexual intercourse with the Defendant, which is the core point of the fact of damage, and consistently expresses the characteristics related to the fact of damage (such as the speech that the Defendant had committed at the time of committing the crime, smelling at the place of damage, and the structure of the room). The victims’ opinions on the contents of the police statement also presented the victim’s opinion that it is difficult to see that the statement was distorted due to external influence because the victim’s cryptive or direct questioning was not included at the time of the victim’s statement recording or video recording, the victim’s opinion that it is difficult to view that the statement was distorted due to external influence cannot be said to believe that the victims’ statement was made.

D) On August 22, 2013, on the basis of the statements of the above victims and reference witnesses, the police conducted a second-time examination of the accused on August 22, 2013, and conducted a further statement recording against the above victims on August 24, 2013 on the date and time of the crime.

Unlike the first statement recording, in the second statement recording, the investigator directly asked the victims about the facts of damage. However, inasmuch as the credibility of the statement of the said victims is acknowledged in the first statement recording, it is difficult to view that the credibility of the statement of the said victims in the second statement recording is disappeared due to the method of questioning by the investigator in the second statement recording.

E) The victims can be inferred that there was a serious mental impulse since the instant case revealed emotional anxiety, such as a certificate of an instigious challenge after the outbreak of the incident.

바) 피고인은 2013. 2.경 이 사건 아파트의 청년회장 공소외 1이 관리하던 체력단련장을 피고인이 맡게 되면서 다툼이 생겼고, 앙심을 품은 공소외 1이 장애인들과 결탁하여 마치 피고인이 장애인을 대상으로 성폭력범죄를 저지른 것으로 꾸몄다고 주장한다.

As seen earlier, Nonindicted 1’s report on the sexual crime of the Defendant to the police is recognized, but there are no grounds for the Defendant’s accusation motive or false accusation as alleged by the Defendant.

2) Whether the Defendant was aware of the mental disability of the victim and △△△△△△△

In light of the following facts that can be recognized by the evidence duly adopted and investigated by the court below and the circumstances inferred therefrom, it is recognized that the defendant was sexual intercourse and indecent act by force with the above victim while he knows that the above victim was mentally disabled. Thus, the above assertion by the defendant and the defense counsel is not accepted.

A) The apartment of this case is widely known at the time of the proposal that it is permanent rental housing prescribed in the Rental Housing Act, in which many disabled persons reside.

B) The victim △△△△△△△ was aware of the fact that it was a disabled person in view of the fact that it was sexually disabled person by attracting and dividing it into usual behavior. Following the occurrence of the instant case, the deliberation and evaluation conducted against the victim and the victim △△△△△△△△△△△△ was conducted at the Stosaw Support Center, and the meaning of sexual intercourse was known, but it was deemed that there was no ability to determine who should have sexual intercourse in any context with the victim.

피해자 고△△의 어머니인 임○○을 포함한 가족들도 모두 지적장애인 또는 언어 장애인으로 등록되어 있어 주민들 사이에 피해자 고△△도 지적장애인이라고 알려져 있었지만 실제로는 장애등급을 받지는 아니하였다. 그 이유는 피해자 고△△의 가족은 모두 장애인으로서 위 피해자가 가족의 보호자 역할을 하고 있는데 자신마저 장애인으로 등록되면 가족 모두가 뿔뿔이 흩어져 장애인복지시설에 입소하여야 하기 때문에 주변에서 그 등록을 권하지 않았기 때문이다.

C) From March 197, the Defendant resided in the apartment of this case and served as the representative of the lessee through the head of the Ban, the head of the Tong, and the head of the youth center. The Defendant was well aware of the victim’s high △△△△ and neighbors.

At the time of prosecutorial investigation, the Defendant appears to have known that all of the family members of △△△△ have a mental disorder, excluding the victims and the descendants of △△△△△△, and was aware of the fact that there was a high possibility of mental disorder even the victim and the △△△△△

3) Whether the victim and the senior △△△△ was able to exercise the power

A) The evidence on the fact that the Defendant stated the date and time and place indicated in the facts constituting the crime of paragraph (3) of the lower judgment in the lower judgment, stating that “The Defendant shall be entitled to receive KRW 2 million in a lump sum from the victim △△△△△△△△, or shall be entitled to receive full payment in full,” is only the second protocol of interrogation of the Defendant, which is not admissible as evidence, the second protocol of interrogation of the police officer against the Defendant, and each protocol of interrogation of the Defendant’s prosecutorial office against the Defendant, except each

These evidence alone is only recognized that the victim expressed his/her intent to refuse to do so to the defendant and that the defendant only told that he/she would cause (Article 581 of the Evidence No. 2013 High Court Decision 2013Dahap171). However, even if the defendant does not exercise any specific tangible power other than forcing him/her to wear clothes in line with sexual intercourse, even if he/she refers to the defendant and does not exercise any specific force other than forcing him/her to wear clothes in line with sexual intercourse, in light of the following facts duly adopted and examined by the court below and the circumstances inferred therefrom, the defendant can be recognized to have sexual intercourse with the victim and the △△△△△△△

B) The Defendant’s monthly income remains approximately KRW 1 million, and even in a bad credit standing condition, the Defendant, from around 201 to around 201, lent money to △△△△△△△ for a total amount of money several times. The Defendant appears to have sought a gender relationship with the Defendant on a loan basis. In fact, the Defendant urged the Defendant to pay the payment, and the Victim and the △△△△△△△△△△△△△ was attempted suicide around June 201.

C) The injured party △△△△△△ was a female on October 12, 1982 who is 30 years of age at the time of the instant case, and the Defendant was a female on May 3, 1960, and the injured party was aware that he was the spouse and consciousness of the Defendant. As can be seen, it is unreasonable in light of the empirical rule that the injured party was 22 years of death or difference and that he had sexual intercourse in response to the demand of the Defendant, who is the male father.

D) Around July 2012, the Defendant requested Nonindicted 3 to help the victim and the △△△△△△△ to the effect that he want to have the victim and the △△△△△△△, and on the day of the crime described in paragraph 3 of the judgment of the lower court, Nonindicted 3, who was the victim, her body, her body, her body, her body, and borrowed money, her psychological pressure to the victim and her △△△△△△△△△.”

As can be seen, when the victim and the △△△△△ had been chilling psychologically with the borrowed money, it was difficult to expect that the Defendant will remain at the same day and the meals with Nonindicted 3, and led Nonindicted 3 to the Defendant, leading Nonindicted 3. The victim would have failed to expect that the Defendant will remain, even if he was able to take meals with Nonindicted 3 and the Defendant.

E) Although the Defendant expressed his explicit intention of refusal while intending to be exempted from the clothes of the victim, the Defendant exceeded the victim’s will and panty, and had sexual intercourse with the victim.

As such, the victim had mental disability equivalent to Grade III, who had a significant difference between the defendant and the defendant in power, age, etc., and was chilling psychologically due to the loan, and thus, the victim who was in the telecom with the defendant could have been under the pressure of the defendant to make a normal resistance.

F) The victim and the △△△△△△ attempted suicide again around September 26, 2012, beginning to talk about the victims of sexual assault from the Defendant, and spreaded the question.

4) Whether the victim had used the state of difficulty to resist due to mental disorder of ○○○○○

Although ○○○○ appears to have a certain degree of intellectual ability, such as making a detailed statement on the circumstances leading to sexual intercourse after the instant crime, in light of the following facts acknowledged by the evidence duly adopted and examined by the lower court and the circumstances inferred therefrom, the victim may be deemed to have suffered significant difficulties in personal relationship or communication due to the delay of social intelligence or maturity to a considerable extent, and at the time of the instant crime, the victim could not have clearly expressed his/her intent to refuse the Defendant’s sexual demand due to such mental disorder or have been unable to actively resisted with his/her hand.

Therefore, the above assertion by the defendant and the defense counsel cannot be accepted since the defendant has sexual intercourse with the victim's mental disability.

A) The injured ○○○ was a female on October 29, 1981 with intelligence index 51 and the social index 31 remains lower than this, and the social age is merely 10.1 years old (the social age by detailed area is 11 years old, work ability 8 years old, and communication ability 9 years old). The injured ○○ is a person of intellectual disability 3 who can carry out only a simple play and a simple opening of a house, and who can carry the same degree with the neighboring dong alone, and it is evaluated that there was a similar mental disability even around 205 and 2006.

The victim was aware of his age difference between the defendant and the defendant, and that the defendant was his spouse and the consciousness.

B) On December 2006, the Defendant maintained the victim’s trust by putting the victim’s personal identity into the dial field on the ground of the fact that he added his official book to the victim, and had sexual intercourse with the victim’s hand out of the victim’s clothes on the ground that he was forced to put the victim’s personal identity into the dial orchard, and did not want to do so.

C) The victim stated in the police that “the Defendant was aware of the fact that the victim was a disabled person and thought that he was to be a know of the fact that the victim was a disabled person. The same applies to the case where the Defendant was forced to be out of clothes as a way to commit an indecent act against sexual intercourse, and was forced to be out of clothes. They continued to be out of the clothes.” The victim stated to the effect that “I were pregnant because they were forced to do so without being able to do so even if they were able to do so.”

B. Expiration of the statute of limitations

1) Summary of the facts charged

On May 2006, the Defendant had sexual intercourse with the victim by putting the victim into the vicinity of the apartment of this case and laying the victim himself on the floor, putting the victim out of all clothes of the victim, putting the victim off his clothes in the process of the process, breathe the victim’s booming the victim and continuously inserting the victim’s sexual organ into the negative part of the victim.

2) The judgment of the court below

A) The expiration date of the statute of limitations for the above crime

The statute of limitations for the above crime is seven years from the date of May 2006, which is the date of the execution (Article 3 of the Addenda of the Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007), Article 249 (1) 3 of the former Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007).

B) The amendments to the relevant laws

Article 20(3) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11088, Nov. 17, 201; hereinafter the same date) provides that "where a person commits a crime under Article 297 (Rape) or 299 (limited to quasi-rape and quasi-rape) (limited to quasi-rape) of the Criminal Act with respect to a female under the age of 13, the statute of limitations provided for in Articles 249 through 253 of the Criminal Procedure Act and Articles 291 through 295 of the Military Court Act shall not apply, notwithstanding paragraphs (1) and (2), Article 20(3) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11088, Nov. 17, 2011; hereinafter referred to as "the Statute excluding the statute of limitations of a public prosecution of this case"), there is no transitional provision that applies to

Article 20(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 10258, Apr. 15, 2010; hereinafter the same date) provides that "the statute of limitations of a sexual crime against a minor shall commence from the date on which the minor who has suffered the relevant sexual crime reaches the age of majority, notwithstanding Article 252(1) of the Criminal Procedure Act." Paragraph (2) of the same Article provides that "the statute of limitations of a sexual crime against a minor shall extend by 10 years where there are scientific evidence to prove the relevant crime, such as DNA evidence," and Article 20(1) of the Addenda of the same Act (amended by Act No. 10258, Apr. 15, 2010; hereinafter referred to as "the Act on the Protection of Children and Juveniles against Sexual Abuse" shall also apply Article 20(1) of the Addenda of the same Act (amended by Act No. 10306, Apr. 16, 2016).

After that, Article 21 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012 and enforced as of June 19, 2013) provides for the transitional provisions on retroactive application (hereinafter “instant transitional provisions”) under Article 3 of the Addenda to the same Act (wholly amended by Act No. 11572, Dec. 18, 2012) (Article 20 of the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012).

C) Interpretation in the absence of transitional provisions

On May 31, 2013, which is the expiration date of the statute of limitations for a crime under this part of the facts charged, the exclusion provision of the statute of limitations for the instant case was enforced, and there is no express transitional provision unlike other provisions for the extension of the statute of limitations.

① Under certain conditions, the retroactive effect of the statute of limitations, such as the provision excluding the statute of limitations in the state where the statute of limitations has not been completed does not go against the principle of non-taxation under certain conditions. ② Amendment of the statute before and after the statute of limitations, except for the provision excluding the statute of limitations in this case, has the same or similar transitional provisions concerning the exclusion and extension of the statute of limitations in the same manner as to the legislation and amendment trends, content and legislative intent, and (3) the provision concerning the retroactive effect of the statute of limitations in the case where the statute of limitations has not been completed in certain sexual crimes, such as women under 13 years of age or disabled, is justified in light of the unique nature of the public interest, such as the need for the punishment of sexual crimes against those vulnerable to the trust of individuals based on the statute of limitations system, and there is no reasonable ground to view that the statute of limitations in this case is excluded from the retroactive effect of the statute of limitations in the preceding case, i.e., the basic provision concerning the statute of limitations in this case.

Therefore, the statute of limitations cannot be deemed to have expired for the instant crime.

3) The judgment of this Court

In the judgment of the court of the court of the court below, the above ① and ③ above are summaryed, and the principle of non-prosecution of punishment is not applied if the statute of limitations has not expired, and thus it is possible to apply the exclusion provision of the statute of limitations of the case retroactively. The law excluding and extending the statute of limitations in the event that the statute of limitations has not expired has so-called "non-performance" retroactive effect, which is the derived principle of the principle of no-guilty punishment under the Constitution.

However, the issue of this case is whether it can be recognized in the absence of explicit transitional provisions on the exclusion of the statute of limitations of this case, rather than whether the principle of non-prosecution of punishment is applied or not.

Ultimately, among the reasoning of the judgment of the court below, it is difficult to say that the above (1) and (3) are core arguments supporting the fact that the statute of limitations of the instant criminal act has not been completed. This is because it is only the logic that the above argument can be retroactively applied in the event there is a provision excluding the statute of limitations in a state where the statute of limitations has not been completed, and it is difficult to view that the provision excluding the statute of limitations of the instant case can be retroactively applied even if there is no express transitional provision on the visual scope of the statute of limitations.

Therefore, the conclusion of the judgment of the court below differs depending on whether it can be recognized that the statute of limitations can be applied to crimes committed before the enforcement of the law, in light of the legislative intent and contents, and the trend of the enactment and amendment of the relevant law, even though there is no provision excluding the statute of limitations in this case among the reasons for the judgment of the court below.

The reasoning of the judgment below 2 is that the statute of limitations exclusion provision of this case can be interpreted as if there is no transitional provision of the statute of limitations exclusion provision of this case, which can eventually be interpreted as a transitional provision of the statute of limitations exclusion provision of this case.

However, this Court cannot accept the reasoning of the judgment of the court below on this point, and the reason for such a view is to change the items.

4) Whether it is possible to conduct analogical interpretation unfavorable to the defendant

A) “Declaration of the authorization of the law” is one of the important obligations given to the court. In order for the court to properly declare the law, the court must find up a proper law. Therefore, in interpreting and applying the law, the court must ensure that the court does not fulfill its duty given to the court, “the discovery of the law.” It is a waiver of a defined declaration of the law. This is a serious denial. On the premise of this, the lower court is developing the said analogical interpretation on the premise that it is difficult to understand it in light of the above duty of the court.

However, criminal law should be an exception. If the State exercises the right of punishment as possible, formal application of the law is required. It is because it is likely to encourage the possibility of abuse of state power to impose punishment in an ambiguous legal provision. This is also very serious denial. This is also the same even if criminal punishment is required in individual cases. Accordingly, if opening the way for abuse of state power is possible, general harm caused thereby cannot be caused. It is necessary to establish and regulate a clear and clear law.

Although the court below states that analogical interpretation is justifiable on the grounds that the legislative intent and the transitional provision of this case can be a private culture, the court below should interpret the legislative intent and the systematic interpretation of law in this case where the demand of legislators conflicts with the constitutional principles, that is, the principle of no punishment without the law, and the constitutional values derived therefrom.

B) Based on such constitutional principles, the Criminal Act also provides that the establishment and punishment of a crime shall be governed by the law at the time of the act (Article 1(1)), and that if the act does not constitute a crime due to a change in the law after the crime or if the punishment is more severe than the former law (Article 1(2)).

It is reasonable to consider that Article 1 of the Criminal Act should apply mutatis mutandis to a crime for which the statute of limitations has not been completed, and that the statute of limitations does not go against the principle of no prosecution against the principle of no prosecution against the punishment and that the statute of limitations does not determine the existence or absence of the penal authority prescribed in the substantive law as a procedural system, but from the perspective of the defendant, the existence or absence of punishment varies depending on the statute of limitations, the substantial disadvantage arises as the statute of limitations has been excluded and extended, and the principle of strict interpretation of the criminal law, which is the derived principle of the principle of no punishment without the law under the Constitution, should be applied to the period of the statute of limitations favorable to the defendant compared before and after

In light of the above position, there is a theory that it is reasonable to take the position of the law at the time of an act even in cases where the provisions on incidental disposition are amended to be practically disadvantageous to a person subject to the order (see Supreme Court Decision 201Do6181, 2013 Jeondo122, Jul. 25, 2013, with regard to the proviso to Article 9(1) of the Act on Probation and Electronic Monitoring, etc. for Specific Criminal Offenders who do not have clear transitional provisions on the provision that the lower limit of the period of attachment should be increased twice in cases where a specific crime is committed with respect to a person under the age of 19 years while relaxing or expanding the requirements for requesting attachment order and the minimum period of attachment.

5) Interpretation where there is no transitional provision in the exclusion of statute of limitations

A) Principles under the Criminal Procedure Act concerning the timely scope of the statute of limitations exclusion provisions

(1) The issue of legislative policy

As seen earlier, not only can it be prohibited from analogical interpretation of criminal law unfavorable to the defendant, but also can not be recognized as retroactive application of the transitional provision in the procedural law.

In criminal law, if there is a legal status that continues before and after the enforcement of the new law (e.g., the progress of the statute of limitations, etc.), it is a principle to apply the new law to the legal status when there is no transitional provision, and it is a principle to apply the previous law?

If the former is the principle, if there is a transitional provision that applies the new law while establishing a provision that excludes or extends the statute of limitations under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes or the Act on the Protection of Children and Juveniles against Sexual Abuse, the transitional provision is merely a principle, and if the latter is the principle, the transitional provision falls under the core provision that regulates the application of any of the new and old laws.

However, with respect to the timely scope of the exclusion of the statute of limitations, the general principles of the law that are common worldwide exist, and it can be seen as a matter of legislative policy that regulates differently the scope of the statute of limitations according to the reality and circumstances of each country (see the following (b).

If so, what is the principle of application of the exclusion of the statute of limitations in Korea? In this regard, it can be understood by examining the provisions of the Criminal Procedure Act as the general law of the Criminal Procedure Act and the provisions of the special law.

Dol Provisions of the Criminal Procedure Act

The former Criminal Procedure Act was amended by Act No. 8730 on December 21, 2007 and entered into force on the same day, and Article 3 of the Addenda of the Act provides that "the previous provisions shall apply to crimes committed before the enforcement of the Act," which were committed before the enforcement of the Act, that the period of the statute of limitations is extended (the period of the statute of limitations shall be extended to 25 years, 10 years, 7 years, 5 years, 3 years, 25 years, 15 years, 10 years, 7 years, 5 years, and 3 years, respectively)."

① The above extension of the statute of limitations was first made after the enactment of the Criminal Procedure Act, and was subject to the previous provision regarding the crime committed before the statute of limitations became effective. ② The extension of the statute of limitations and its transitional provisions under the Criminal Procedure Act were introduced before the enactment of the Act on Special Cases Concerning the Punishment of Sexual Crimes and the Protection of Children and Juveniles against Sexual Abuse, which provide for special cases concerning the statute of limitations under the Criminal Procedure Act, ③ Therefore, the special cases concerning the punishment, etc. of sexual crimes under the Criminal Procedure Act, which provide for special cases concerning the statute of limitations under the Criminal Procedure Act, should be applied to the special cases concerning the statute of limitations under the General Act. ④ In light of the aforementioned supplementary provisions under the Criminal Procedure Act, if the provision on the statute of limitations has been modified to the disadvantage of the defendant, it would be unreasonable to retroactively apply the provision on the statute of limitations under the Act on Special Cases Concerning the Protection of Children and Juveniles against Sexual Abuse, which was wholly excluded from the statute of limitations period of limitations period of 1, 2017.

Abstract Other transitional provisions on the extension of the statute of limitations in the Special Act

Article 22(a) of the Punishment of Tax Evaders Act (wholly amended by Act No. 919, Jan. 1, 2010; Article 22(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that the statute of limitations for a corporation shall be extended to 10 years in cases where the said offense is subject to Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes. Article 3 of the Addenda of the Act (amended by Act No. 9919, Jan. 1, 2010) provides that “The statute of limitation for the crime committed before this Act enters into force shall be governed by the previous provisions, notwithstanding the amended provisions of Article 22 of the Act on the Aggravated Punishment, etc. of Tax Evaders (the Punishment of Tax Offenses Act was amended by Act No. 4812, Dec. 22, 1994; Article 2 of the Addenda of the Act also has been amended to extend the statute of limitation by revising Article 17.

Meanwhile, the Public Official Election Act was amended by Act No. 12393 on February 13, 2014, and Article 268(3) of the same Act newly established Article that the statute of limitations for a crime of violating the Public Official Election Act committed by a public official by taking advantage of his/her position or position in relation to his/her duties shall expire at the expiration of ten years after the relevant election day, not later than six months prescribed in paragraphs (1) and (2) of the same Article. In addition, Article 11 of the Addenda of the same Act (amended by February 13, 2014) provides that the application of the statute of limitations for acts before the enforcement thereof shall be governed by the previous provision (the Public Official Election Act was amended to the effect that the statute of limitations under Article 268 is extended even before the said amendment was made).

In full view of the provisions of the relevant laws, the statute of limitations for all crimes committed prior to the enforcement of the new law, except sexual crimes, can be seen to be based on the principle that the previous provisions shall apply in cases where the statute of limitations is changed substantially disadvantageous to the defendant. However, this trend suggests that, in contrast to such trend, the explicit transitional provisions on the exclusion and extension of the statute of limitations established and amended disadvantageous to the defendant should be applied to sexual crimes committed prior to the enforcement of the statute of limitations.

Therefore, when there is no transitional provision on the exclusion of statute of limitations of this case, it can be inferred that it is right to follow the previous provision that is not favorable to the defendant in accordance with the above principle.

B) Legislative cases

(i) France

The statute of limitations on heavy crimes in France is 10 years, and the statute of limitations for heavy crimes, such as rapes against minors and sex crimes, shall be interrupted until the victim becomes adult (Law No. 89-487 of July 10, 1989): LOI∑ n· 89-487du 1987: jumt 1989 jumt l' l' l' l't l'm l'm l'm l'm l'm l'm l'm l'm l'm l'm l'm l') was newly established and the statute of limitations has been extended to 20 years, but there was no transitional provision on the extension of the statute of limitations.

However, Article 112-2 (4) of the French Criminal Code provides that the new provisions on the statute of limitations shall also apply to crimes that have occurred before the enforcement of the new law only when the statute of limitations has not yet expired. Therefore, there is no transitional provision on the extension of the statute of limitations in the new law.

Doz. Japan

In accordance with Article 6 of the Enforcement Act on Criminal Procedure, Japan has resolved legislatively that the period of prescription of a public prosecution shall be in accordance with the former Act. In other words, the new Act shall apply to cases in which a public prosecution has not been instituted until the enforcement of the amended Criminal Procedure Act (hereinafter referred to as the "new Act") but shall not prevent any effect arising from the previous Criminal Procedure Act (hereinafter referred to as the "former Act") and the Emergency Measures Act before the enforcement of the new Act (Article 3 of the Enforcement Act of Japan). On the other hand, with respect to cases in Article 4, the previous Act and the Emergency Measures Act shall apply even after the enforcement of the new Act (Article 6 of the same Act).

6) Sub-decisions

Therefore, this part of the facts charged is that Article 6(1) of the former Act on Special Cases Concerning the Punishment of Sexual Crimes and Protection of Victims Thereof (amended by Act No. 10258, Apr. 15, 2010; Act No. 10258); Article 297 of the former Criminal Act (amended by Act No. 11574, Dec. 18, 2012); Article 3 of the Addenda of the Criminal Procedure Act (amended by Act No. 8730, Dec. 21, 2007); Article 249(1)3 of the former Criminal Procedure Act (amended by Act No. 8730, Dec. 21, 2007); Article 6(1) of the former Act on Special Cases Concerning the Punishment of Sexual Crimes (amended by Act No. 10258, May 15, 201; Act No. 12206, Feb. 16, 2014>

3. Conclusion

Therefore, among the judgment below, an appeal against the defendant on May 2006 against the violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims (rape-rape, etc. against the disabled) is with merit. However, inasmuch as the above and the remaining crimes among the charges against the defendant are concurrent crimes under the former part of Article 37 of the Criminal Act, the part concerning the defendant's case among the judgment below should be reversed in whole. In addition, where the part concerning the defendant's case among the judgment below is reversed, the part concerning the attachment order claim to be issued simultaneously after examination cannot be reversed.

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act and Article 35 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “Electronic Device Attachment Act”), and the judgment of the court below is reversed and the judgment on the allegation of unfair sentencing is again decided as follows, without further proceeding to decide on the allegation of unfair sentencing.

The reasoning for this Court's explanation is as follows, since the part of the judgment of the court below concerning the defendant is the same as that of each part of the judgment of the court below, Article 369 of the Criminal Procedure Act and Article 35 of the Electronic Monitoring Act are cited.

○ The part of the original judgment of the court below, i.e., “Blin 2 million won” of paragraphs 3 through 4 from the third side of the judgment of the court below, shall be deleted.

○ The “206.5.5.” in the last sentence of the fourth written judgment of the court below shall be read as “206.12.”, “24 years old at that time” in the same act as “25 years old at that time”, and “4 times” in the fifth and sixth conduct as “three times”, respectively.

According to the evidence in Part VI and Part IV of the judgment of the court below, "the danger of recidivism at the time of sale" was added to the evidence in Part IV of the judgment of the court below, and "The risk of recidivism at the time of sale" in Part IV and below and paragraph (4) of the same paragraph, "The risk of recidivism at the time of sale" was assessed to the level of "serious" as a result of the evaluation of the risk of sex offenders at the time of sale (K-SORAS) and "the risk of recidivism at the time of sale," and "The risk of recidivism at the time of sale at the time of sale at the time of sale at the time of sale at the time of sale at the time of sale at the time of sale at the same 9 points in total, it was found that there was no problem related to drinking at the 5 point in total as a result of the evaluation of the risk of sex offenders at the time of sale at the time of sale at the time of sale at the time of sale at the time of the following sentencing."

○ In the judgment of the court below, the term “crime sight table” in the 17th page of the judgment of the court below shall be replaced by “crime sight table” in the annexed Form of this

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

Article 6 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 11088, Nov. 17, 2011); Article 297 of the former Criminal Act (Amended by Act No. 11574, Dec. 18, 2012); the main sentence of Article 42 of the former Criminal Act (Amended by Act No. 10259, Apr. 15, 2010)

○ Article 2(a) and (b) of the Decision: Article 8 of the Addenda to the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 1156, Dec. 18, 2012); Article 6(4) and (1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11556, Dec. 18, 2012); Articles 299 and 297 of the former Criminal Act (amended by Act No. 11574, Dec. 18, 2012)

Article 6(5) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012)

Article 6(6) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012) (Appointment of Imprisonment)

○ Paragraph 5 of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (amended by Act No. 10258 of Apr. 15, 2010), Article 8 of the former Criminal Act (amended by Act No. 10258 of Apr. 15, 2010), Article 297 of the former Criminal Act (amended by Act No. 11574 of Dec. 18, 2012), Article 42 of the former Criminal Act (amended by Act No. 10259 of Apr. 15, 2010)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. An order for disclosure and notification;

Article 2 of the Addenda to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11556, Dec. 18, 2012); Article 37 of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11162, Jan. 17, 2012); Article 41 of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11162, Apr. 15, 2010)

Articles 2 through 4 of the Decision: Addenda to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11556, Dec. 18, 2012); Articles 37 and 41 of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11556, Jan. 17, 2012)

1. Issuing an order to attach an electronic tracking device and matters to be observed;

Article 5(1)5, Article 9(1)1, and Article 9-2(1)3 and 4 of the Electronic Monitoring Act

The instant case concerns the most serious damage among the so-called “ Jeju Island” case where multiple actors sexually assault many disabled persons over a long-term period of time in the apartment where a considerable number of intellectual disabled persons reside. Accordingly, the shock that caused the persons with disabilities living in the local community and Jeju has not yet disappeared.

Around 200, the Defendant was appointed as the 19th head of ○○ Dong and 19th head of 200, and the Defendant was aware of the fact that a considerable number of the residents were the representatives of the tenants of the apartment complex of this case through the 19th head of the young, etc. Around February 2013. Nevertheless, the Defendant continued sexual assaulting several intellectually disabled persons over a long period of time. The Defendant, among the victims, was aware of these circumstances, and the Defendant committed a crime against the wheels who sexual intercourse with or commits indecent act against such women. Accordingly, the △△△△△△△△ was suffering from serious depression after attempted suicide, and the other victims are also suffering from emotional distress. The Defendant committed a sexual crime with the aim of preventing sexual assault by being hospitalized by his spouse, etc., with the intention of preventing sexual assault for a long time, even though she did not neglect the birth of the spouse, and even if she did not reach the age of the young female, the Defendant did not have sexual intercourse.

In light of the aforementioned criminal act itself, the liability for the crime is very significant. Considering the circumstances after the Defendant committed the act of speech and behavior shown during the trial of this case, etc., the Defendant is bound to be punished against the Defendant, who was under the influence of the Defendant. The Defendant sent a letter to the victim, who was 10 years in the trial of this case, or 20 years in the event of release from prison, and the Defendant managed the health of the victims, accusers, etc. by sports in the prison, and made a number of times in the event of release from prison. The Defendant was able to make the victim, accusers, etc. at the time of release from prison. The Defendant’s expression of the intention to reflect on his will and reflect, and expressed his intention to die during the trial of this case, there is no doubt about the Defendant’s early punishment against the victims of this case.

Considering the above circumstances, even if the Defendant did not have any particular criminal record, the fact that the Defendant was sentenced to acquittal on part of the facts charged in the instant case cannot be taken into account in such a way that the Defendant’s liability cannot be easily considered.

In addition, considering the Defendant’s age, character and conduct, environment, motive, means and consequence of the crime, circumstances after the crime, etc., all the sentencing conditions specified in the pleadings of the instant case shall be considered, and the punishment shall be determined as indicated in the text by referring to the results of the application of the sentencing guidelines of the Supreme Court Sentencing Committee. The period of attachment 20 years sentenced by the lower court with regard to the attachment order of the electronic device appears to be somewhat somewhat long in light of the results

Where a conviction on the instant case becomes final and conclusive, the Defendant is a person subject to registration of personal information under Article 2 of the Addenda to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 1156, Dec. 18, 2012); Article 32(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11556, Dec. 18, 2012); Article 5(1) of the Addenda to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11556, Dec. 18, 2012); Article 43 of the Act on

The summary of this part of the facts charged is that the Defendant, at around 13:00 on July 2012, the victim and △△△△△△△△△, “I will make a full payment of KRW 2,00,000,000,000, in one lump sum,” “I will make a full payment,” and “I will make a full payment,” and “I will make a full payment,” to the victim who “I will make a full payment,” and, by force, forced the victim to be off the clothes of the victim on two occasions, and had sexual intercourse with the victim one time, leading the victim to his her stern.

Of the above facts charged, with regard to the defendant's exercise of power by stating that "a person shall repay or choose to repay 2 million won in a lump sum with one another," among the above facts charged, he/she shall not be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, unless there is no evidence to acknowledge this as stated in the grounds for reversal. However, as long as the defendant found the defendant guilty of a crime under paragraph (3) of the judgment in relation to such a crime, he/she shall not be acquitted separately from the disposition

The summary of this part of the facts charged is the same as that of Article 2-2(b)(1). Since the statute of limitations for this part of the facts charged has expired as in the above reasons for reversal, a judgment of acquittal is rendered in accordance with Article 326(3) of the Criminal Procedure Act.

[Attachment]

Judges Kim Chang-chul (Presiding Judge)