Whether a claim for an attachment order shall coincide with the criminal facts of the specific crime case for which the request for the attachment order is filed by the competent court/the competent court/the case for which the request for the attachment order is filed (affirmative), and whether the facts constituting the cause of the request for the attachment order to be stated in the written request for the attachment order include the facts as to the risk of recidivism other than those stated in the

According to Article 5(1) through (4) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”), a request for an attachment order of an electronic device under Article 5(1) through (4) shall be made not later than the time the argument is concluded in the appellate trial of the specific crime case in which a public prosecution is instituted (Article 5(5)). The jurisdiction over the request for attachment order shall be subject to the jurisdiction of the specific crime case in which a trial is conducted simultaneously with the request for attachment order

In addition, the facts of the cause of the request for attachment order must coincide with the facts of the specific crime case, and the facts of the cause of the request for attachment order which must be stated in the written request for attachment order pursuant to Articles 5(1) and 8 of the Electronic Monitoring Act include not only the facts of the charges stated in the indictment of the defendant case but also the facts of the risk of recidivism

Articles 5(1), (2), (3), (4), (5), 7, and 8 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders

Supreme Court Decision 2010Do1626, 2010Do3 Decided April 29, 2010 (Gong2010Sang, 1082) Supreme Court Decision 2013Do6220, 2013 Jeondo124 Decided July 26, 2013

Defendant and the respondent for attachment order

Defendant and the respondent for attachment order and the prosecutor

Attorney Kim Jae-hee

Daejeon High Court Decision 2015No209, 318, 479, 2015 Jeonno14 decided February 5, 2016

The part of the judgment below regarding the claim for attachment order among the judgment below is reversed, and that part of the case is remanded to Daejeon High Court. All of the appeals against the accused case are dismissed

The grounds of appeal are examined.

1. Defendant case

A. As to the grounds of appeal by the Defendant and the person to whom the attachment order was requested (hereinafter “Defendant”).

Criminal facts have to be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the selection of evidence and probative value of evidence conducted on the premise of fact-finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act).

For the reasons indicated in its holding, the lower court found all criminal facts guilty.

The allegation in the grounds of appeal is purporting to dispute such fact-finding by the lower court, and is merely an error of the lower court’s determination as to the choice of evidence and probative value, which belong to the free judgment of the fact-finding court. In addition, even if examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and duly admitted evidence, the lower court did not err in its judgment by misapprehending the legal doctrine on the occupational power of the crime of violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, or by exceeding the bounds of the principle

In addition, according to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where a more minor sentence has been imposed on the defendant, the argument that the amount of punishment by the court below is unreasonable

B. As to the Prosecutor’s Grounds of Appeal

The finding of guilt in a criminal trial shall be based on evidence with probative value, which makes it possible for a judge to have the truth that the facts charged are true beyond a reasonable doubt, and if there is no such proof, even if there is no doubt of guilt against the defendant (see, e.g., Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2005Do8675, Mar. 9, 2006).

For the reasons indicated in its holding, the lower court reversed the first instance judgment convicting the Defendant of this part of the facts charged and acquitted the Defendant on the ground that it is difficult to view that the part on the charge of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes was proven beyond reasonable doubt

The allegation in the grounds of appeal is the purport of disputing such fact-finding by the lower court, and is merely an error of the lower court’s determination as to the choice of evidence and probative value, which belong to the free judgment of the fact-finding court. In addition, even if examining the reasoning of the lower judgment in light of the aforementioned legal principles and the record, the lower court did not err in its judgment by misapprehending the legal doctrine on rape against the disabled, failing

2. As to the case of the request for attachment order

A. According to Article 5(1) through (4) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”), a request for an attachment order of an electronic device under Article 5(1) through (4) shall be made not later than the time the argument is concluded in the appellate trial of the specific crime case in which the prosecution is instituted (Article 5(5)), and the jurisdiction over the request for an attachment order shall be subject to the jurisdiction of the specific crime case in which the case in which the request for an attachment order is filed simultaneously with

In addition, the facts of the cause of the request for attachment order must coincide with the facts constituting the specific crime case (see, e.g., Supreme Court Decision 2010Do1626, 2010Do3, Apr. 29, 2010). The facts of the cause of the request for attachment order, which shall be stated in the written request for attachment order pursuant to Articles 5(1) and 8 of the Electronic Monitoring Act, include not only the facts charged in the indictment of the defendant case but also the facts about the risk of recidivism (see, e.g., Supreme Court Decision 2013Do620, 2013Do124, Jul. 26, 2013).

B. The record reveals the following facts.

(1) On December 10, 2014, the prosecutor filed a request for an attachment order with the Daejeon District Court Branch of the Daejeon District Court on the first instance trial on December 10, 2014, and stated in the request that the request constitutes a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape with Persons with Disabilities) in the same court, which is the defendant's case, and a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape with Persons with Disabilities), which is the defendant's case, due to the fact of the cause of the claim, and the risk of recidivism, the defendant has been detained and pending in trial due to the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape with Persons with Disabilities due to Occupational Force, etc.) and repeated the crimes of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape with Persons with Disabilities), and an attempted rape under Article 5 (1) 3 of the Electronic Devices Attachment Act.

(2) On December 11, 2014, the case of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape with Persons with Disabilities) committed against the Defendant, Daejeon District Court Branch Decision 2014Gohap264, and the case of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Indecent Act by Occupational Authority, etc.) was consolidated against the Defendant on January 26, 2015.

(3) On March 11, 2015, the first instance court rendered a judgment dismissing the request for an attachment order on the following grounds: (a) as to the above cases joined on March 11, 2015, the Defendant was convicted of all the charges; (b)

(4) both the prosecutor and the Defendant appealed. On June 1, 2015, the Daejeon High Court case No. 2015No209, the lower court, which was the lower court, joined the Daejeon High Court’s 2015No318 indecent act against the Defendant.

(5) On September 11, 2015, the Prosecutor filed an application for the change of an attachment order (hereinafter “instant application for change”) with the Daejeon High Court Decision 2015Nono.14, which is the lower court’s judgment regarding the request for attachment order on September 11, 2015, added a criminal fact to the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Act due to occupational force, etc.), which is a part of the Defendant’s charges, and the Defendant committed a sexual crime on at least two occasions during the period from November 28, 2013 to November 5, 2014, with regard to the risk of recidivism, and entered the same in the application that four women, such as female workers or four women, who discovered a report on workplace employees or job placement advertisement, have committed a sexual crime by taking advantage of their superior status. In light of the content, means, time, frequency, and circumstances of the crime, etc., the Defendant was found to have a habit against a sexual crime, and the risk of a sexual crime again.

(6) On September 15, 2015, the instant application for change was served on the head of the Daejeon Correctional Institution, in which the Defendant was detained, and the Defendant and his defense counsel stated on September 16, 2015, that the instant application for change was filed on September 16, 2015 on the fourth trial of the lower court, without any special objection, and sought a judgment dismissing the

(7) On the fourth trial date, the lower court notified the Prosecutor of the decision to permit the alteration of the attachment order written in the instant application for the alteration, and read the gist of the fact of the claim.

(8) In rendering a judgment on February 5, 2016, the lower court revoked the instant application for alteration on September 16, 2015, on the ground that the instant application for alteration does not have the identity of the cause of the claim, and dismissed the request for attachment order based on the fact that the request for alteration of the attachment order was filed on September 16, 2015.

C. However, in light of the legal principles as seen earlier, the instant application for change of facts that led to the instant application for change of facts, is partially added to the facts charged by the Defendant, which already joined with the application for attachment order, to the cause of the application for attachment order, and the addition is not beyond the scope of the Defendant’s case, and the addition is also deemed to constitute facts as to the recidivism of sexual crimes and the risk of recidivism of sexual crimes as stipulated in Article 5(1)3 of the Electronic Monitoring Act. Thus, the instant application for change of facts cannot be deemed to violate the Electronic Monitoring Act, and it is difficult to view that the previous application for change of facts is not in violation

Nevertheless, for reasons contrary to this, the lower court rejected the request for modification of the attachment order under the instant application for modification, and determined as to the attachment order request based only on the facts constituting a claim for the existing attachment order. Therefore, the lower court erred by misapprehending the legal doctrine on the request for attachment order under Article 5 of the Electronic Monitoring Act and the modification of the facts constituting a claim, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Conclusion

Therefore, the part of the judgment below regarding the claim for attachment order among the judgment below is reversed, and that part of the case is remanded to the Daejeon High Court for further proceedings consistent with this Opinion. The appeal against the case against the defendant is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Ki-taik (Presiding Justice)