Whether the revision of a protective disposition against a juvenile subject to a protective disposition under the Juvenile Act constitutes a judgment on the previous protective disposition case (affirmative), and whether it violates Article 53 of the Juvenile Act to institute a public prosecution against a case for which a trial is not decided in the previous protective disposition, or to forward it to the Juvenile Department (negative

A judge of the Juvenile Department shall, where deemed necessary to take a protective disposition as a result of a trial, issue a protective disposition (Article 32(1) of the Juvenile Act) and an additional disposition following a protective disposition (Article 32-2(1) of the Juvenile Act). A judge of the Juvenile Department may modify a protective disposition and an additional disposition ex officio or upon the request of a commissioned person or a person executing a protective disposition (Article 37(1) of the Juvenile Act). Meanwhile, with respect to a juvenile subject to a protective disposition, a case for which a protective disposition has been decided shall not be prosecuted or transferred to the Juvenile Department (Article 53 of the Juvenile

The revision of the above protective disposition is to revise the previous protective disposition decision on the ground of changes in circumstances, such as violation of the rules to be observed in the course of entrustment or execution according to the decision of the protective disposition. In other words, this is a judgment on the previous protective disposition case. Therefore, it does not violate Article 53 of the Juvenile Act to institute a prosecution on the case

Articles 32(1), 32-2(1) and (2), 37(1), and 53 of the Juvenile Act; Article 327 subparag. 2 of the Criminal Procedure Act

Defendant

Prosecutor

Attorney Preferential Il-young

Daegu District Court Decision 2017Gohap52 decided August 29, 2017

Daegu District Court Decision 2017No3892 Decided February 1, 2018

The judgment of the court below and the judgment of the court of first instance are reversed, and the case is remanded to Daegu District Court stay.

The grounds of appeal are examined.

1. Summary of the facts charged in this case

The Defendant, a person subject to probation, who was suffering from the Defendant’s house, shall respond directly to the phone of the Daegu Probation Office ○○○○○ branch, and directly respond to the phone of the Defendant, and register the voice and verify whether the Defendant re-satisfyed. Nevertheless, on December 26, 2016, the Defendant asked the non-indicted Ma-gu Nonindicted Party to receive the phone at the Defendant’s home instead of the Defendant. On December 26, 2016, the Nonindicted Party, who was requested by the Defendant, received the phone of the restricted voice surveillance system from December 22:28, 2016 to 23:36, called the Defendant’s cell phone, and the Defendant responded to the voice supervision system using the cell phone function and registered the voice. Accordingly, the Defendant conspired with the Nonindicted Party and obstructed the legitimate execution of duties of the public official in charge of the ○○ branch of the Daegu Probation Office, who managed the restricted voice surveillance system by using a deceptive scheme.

2. Progress of this case

The record reveals the following facts.

A. On August 24, 2015, the prosecutor sent the Defendant to the Juvenile Department in violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents, etc. on the Daegu Family Court (2015No. 1871). On October 21, 2015, the Daegu Family Court rendered a decision to order the Defendant to “original disposition” under Article 32(1)1, 2, and 4 of the Juvenile Act and Article 32-2(3) (hereinafter “original disposition”).

B. On July 19, 2016, the director of the Seoul Probation Office filed an application for revision of a protective disposition on the grounds that “the probation officer’s failure to comply with the direction, supervision, and the execution of an order to attend a lecture, or to comply with summons during the period of probation, etc., and the degree of violation is inappropriate to be treated in society due to the lack of summons.” On August 24, 2016, the Daegu Family Court rendered a decision to change the original disposition against the Defendant to “the first revision” under Article 32(1)5 and 8 of the Juvenile Act and Article 32-2(3) (hereinafter “the first revision”).

C. On January 5, 2017, the director of the Daegu Family Court filed an application for the revision of a protective disposition on the grounds that “the Daegu Family Court violated the prohibition of infertility contact, the violation of an order of restriction on outing out-of-the-counter contact (the execution of a voice supervision by proxy), and the matters to be observed through re-flight during the period of probation, etc., and the degree of such violation is inappropriate to continue to be treated within society due to its gross negligence.” On March 29, 2017, the Daegu Family Court rendered a decision to change the first revision to “the second revision disposition under Article 32(1)9 of the Juvenile Act and Article 32-2(3)” (hereinafter “the second revision disposition”).

D. On March 29, 2017, the Prosecutor requested a summary order as to the facts charged in the instant case on March 29, 2017 resident support for the Daegu District Court 2017 high-level388. On April 10, 2017, the Prosecutor issued a summary order to the Defendant on April 10, 2017.

E. The first instance court, upon the Defendant’s request for formal trial, rendered a judgment dismissing the Defendant on the ground that “Article 53 of the Juvenile Act provides that “No public prosecution shall be instituted again against a juvenile subject to a protective disposition under Article 32 of the Juvenile Act, for whom the trial was decided,” and the Defendant received the second change of the content of the flight containing the instant facts charged, and thus, the instant facts charged constitute a case where the prosecution procedure becomes null and void in violation of the provisions of the Act.”

F. The Prosecutor appealed, but the lower court dismissed the Prosecutor’s appeal.

3. Determination

A. Where a judge of the Juvenile Department deems it necessary to issue a protective disposition as a result of a trial, he/she shall issue a protective disposition (Article 32(1) of the Juvenile Act) and an additional disposition following a protective disposition at the same time (Article 32-2(1) of the Juvenile Act). A judge of the Juvenile Department may modify a protective disposition and an additional disposition ex officio or upon the request of a commissioned person or a person executing a protective disposition (Article 37(1) of the Juvenile Act). Meanwhile, with respect to a juvenile subject to a protective disposition, a case for which the protective disposition has been decided cannot be prosecuted again or transferred to the Juvenile Department (Article 5

B. The revision of the above protective disposition is to revise the previous protective disposition order on the grounds of changes in circumstances, such as violations of the rules of conduct arising in the course of entrustment or enforcement under the previous protective disposition order. Therefore, it does not violate Article 53 of the Juvenile Act to institute a public prosecution or forward the case to the Juvenile Department for which the previous protective disposition has been decided.

C. The lower court and the first instance court determined that the instant indictment was unlawful as it violated Article 53 of the Juvenile Act, on the ground that the occurrence of the facts charged in the instant case was the ground for a modified decision on the previous protective disposition even though the facts charged was not the case for which a decision was made in the previous protective disposition. In so determining, the lower court and the first instance court erred by misapprehending the legal doctrine on Article 53 of the Juvenile Act, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, the lower judgment and the first instance judgment are reversed, and the case is remanded to the first instance 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 Kim Jae-hyung (Presiding Justice)