[1] Criteria and method for determining disadvantage change in a case where only the Defendant appealed / Nature of “order to restrict employment” under Article 59-3(1) of the Act on Welfare of Persons with Disabilities (=security disposition)

[2] The case holding that in a case where the court below reversed the judgment of the court of first instance ex officio and found the defendant guilty of a sex offense before the enforcement of the Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018; found the defendant guilty before the enforcement date of the Act on Welfare of Persons with Disabilities; issued a fine of 2 million won and 40 hours and issued an employment restriction order to a child or juvenile-related institution, etc.; and appealed only the defendant; and the court below, which rendered a judgment after the enforcement date of the Act, reversed the judgment of the court of first instance as well as issued an employment restriction order at the same time as the judgment of the court of first instance (an order to complete a sexual assault treatment program with a fine of 2 million won and 40 hours) and sentenced the employment restriction order for each three years to a child, juvenile-related institution, and welfare facility, the court below erred in the misapprehension of legal principles as to the principle of prohibition of disadvantageous alteration

[1] Article 368 of the Criminal Procedure Act / [2] Article 298 of the Criminal Act; Article 59-3(1) of the former Act on Welfare of Persons with Disabilities (Amended by Act No. 15904, Dec. 11, 2018); Article 59-3(1) of the Act on Welfare of Persons with Disabilities (Amended by Act No. 15904, Dec. 11, 2018); Article 1, 2, 3(1)3, and 4 of the Addenda (Amended by Act No. 15904, Dec. 11, 2018); Article 368 of the Criminal Procedure Act

[1] Supreme Court Decision 2012Do8736 Decided September 27, 2012 (Gong2018Ha, 2140) Decision 2016Do15961 Decided October 4, 2018 (Gong2018Ha, 2140)

Defendant

Defendant

Law Firm Jin Jin Law, Attorneys Seo-ok et al.

Incheon District Court Decision 2018No3674 Decided July 19, 2019

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

1. The grounds of appeal concerning the accused case are examined.

On the grounds indicated in its reasoning, the lower court convicted the Defendant of the instant facts charged. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the intentional act of indecent act by compulsion, or by omitting necessary

2. Ex officio determine an employment restriction order for welfare facilities for disabled persons;

(a) Progress to amend regulations on employment restriction orders;

1) Article 59-3(1) of the former Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018) provides that a person who was sentenced to punishment or medical treatment and custody for sexual crimes under Article 2(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes or sex offenses against children and juveniles under Article 2 subparag. 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “sexual crimes”) shall not be able to operate welfare facilities for persons with disabilities, or provide employment or actual labor at welfare facilities for persons with disabilities for ten years from the date on which the execution of such punishment or medical treatment and custody is completed, suspended or exempted (hereinafter “previous provision”).

2) The Constitutional Court rendered a decision of unconstitutionality on the ground that the previous provision imposing the restriction on employment of 10 years uniformly on the basis of the past records of sexual crime infringes on the freedom of occupation (see Constitutional Court en banc Decision 2015Hun-Ma915, Jul. 28, 2016). Accordingly, pursuant to Article 59-3(1) of the Welfare of Disabled Persons Act (amended by Act No. 15904, Dec. 11, 2018 (hereinafter “amended Act”) of the Act on Welfare (hereinafter “amended Act”), when a court issues a sentence of imprisonment or medical treatment and custody due to sex offense, it held that the court issued an order to operate welfare facilities for a certain period from the date when the execution of all or part of the sentence or medical treatment and custody is completed, suspended or exempted (hereinafter “employment restriction period”) to prevent employment or actual labor in welfare facilities for disabled persons (hereinafter “employment restriction order”), and issued an order to restrict employment at the same time with the judgment of a sex offense case, and held that the employment restriction order should not be restricted.

3) Meanwhile, the Addenda of the amended Act concerning the enforcement date, scope of application, etc. shall be as follows. The amended Act shall enter into force six months after the date of its promulgation (Article 1). The amended Act shall also apply to persons who committed sex offenses before the amended Act enters into force and have not been finally determined (Article 2). Notwithstanding the previous provisions, the period of restriction on employment of persons subject to employment restrictions pursuant to the previous provisions shall be five years, three years, and one year according to the scope of the finalized principal sentence (in cases of persons subject to imprisonment, imprisonment without prison labor, or imprisonment without prison labor, or medical treatment and custody for more than three years, five years (the same shall apply hereinafter), five years after the completion, suspension, or exemption of the execution of all or part of the sentence or medical treatment and custody (the same shall apply hereinafter), and three years after the sentence of imprisonment, imprisonment without prison labor, or medical treatment and custody for whom the sentence becomes final and conclusive after being sentenced to a fine, and where the previous provisions are more favorable to the application thereof, a person subject to the previous provisions (Article 3(1).

B. Facts of recognition

According to the evidence duly admitted by the court below, the following facts are revealed:

1) The summary of the facts charged in the instant case is that the Defendant committed an indecent act by force on the part of the victim, who was frightened by the victim from the first floor of the ○○ church conference located in Bupyeong-si on February 11, 2018, to the part of the victim, who was frightened to the part of the victim, and fright to the part of the victim.

2) On October 10, 2018, prior to the enforcement of the amended Act, the first instance court convicted the Defendant of the instant facts charged, and sentenced the Defendant to a fine of KRW 2 million, and ordered the completion of sexual assault treatment programs for 40 hours, and sentenced the child and juvenile-related institutions, etc. to an employment restriction order for three years. Accordingly, the Defendant appealed on the ground of mistake of facts, misapprehension of legal principles, and unreasonable sentencing.

3) The lower court reversed ex officio the judgment of the first instance court on the grounds that the Defendant should simultaneously be sentenced to an employment restriction order with the sentence on July 19, 2019, which was subsequent to the enforcement of the amended Act, pursuant to Article 2 of the Addenda to the amended Act, and the amended provisions, and recognized the Defendant guilty of the facts charged in the instant case, and issued the Defendant an employment restriction order for each three years with the institutions related to children and juveniles, and with the same punishment as the first instance court (a fine of two million won, an order to complete sexual assault treatment programs for 40 hours).

C. Determination

1) With respect to a case on which only the defendant appealed an appeal, no sentence more severe than that of the judgment of the court of first instance (Article 368 of the Criminal Procedure Act). Determination as to whether a sentence has been modified disadvantageous to the defendant should be made based on the severity of the punishment under the Criminal Act, but rather on the basis of whether it is disadvantageous to the defendant in light of the entire text (see Supreme Court Decision 201Do8736, Sept. 27, 2012, etc.). Meanwhile, an order for employment restriction prescribed by the amended provisions is a type of treatment in the society against the criminal, not a punishment itself, but a security measure. However, the freedom to choose occupation is practically restricted by operating welfare facilities for the disabled, or by preventing employment or actual labor from being provided to welfare facilities for the disabled.

2) According to the above provision and the amendment of the amended Act, if the prosecutor and the defendant did not appeal against the defendant prior to the enforcement of the amended Act with respect to the judgment of the court of first instance that issued a fine of 2 million won, order to complete sexual assault treatment programs for 40 hours, and order to restrict employment for 3 years to institutions related to children and juveniles, etc., and the judgment of first instance becomes final and conclusive as it is, the period of employment restriction for welfare facilities for the disabled is one year as the special provisions of Articles 4 and 3(1) of the Addenda of the amended Act apply

Nevertheless, in this case where only Defendant was appealed, the lower court rendered a judgment pursuant to Article 2 of the Addenda of the amended Act after the enforcement date of the amended Act, along with an employment restriction order on the Defendant who committed sexual crimes at a welfare facility for persons with disabilities for three years, along with an employment restriction order on the same type as the first instance court and the institutions related to children and juveniles. Examining the foregoing legal principles in light of the legal principles as seen earlier, issuing an employment restriction order on welfare facilities for persons with disabilities for which the period exceeds one year, compared with the time the first instance judgment is maintained, may not be deemed to be disadvantageous to the Defendant. Accordingly, the lower court erred by misapprehending the legal principles on the principle

3. Scope of reversal

For the foregoing reasons, the part of the lower judgment regarding the employment restriction order for welfare facilities for the disabled should be reversed. Since the employment restriction order is an incidental disposition that the court issues simultaneously with a judgment on a certain sex offense case, the remaining part of the Defendant case shall be reversed

4. Conclusion

Therefore, the lower judgment is entirely reversed, and 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 Noh Jeong-hee (Presiding Justice)