2013Do1687 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.);

Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

.A person, concealment of a corpse;

2013 Before the 2013 Before the filing of a joint attachment order

A

Defendant and the respondent for attachment order and the prosecutor

Attorney U.S. (Korean Charter)

Busan High Court (Chowon) 2012No320, (Chowon) 2012 No. 2012 decided January 18, 2013

April 25, 2013

The judgment below is reversed, and the case is remanded to Busan High Court.

1. Judgment on the grounds of appeal

A. As to the grounds of appeal by the defendant and the person to whom the attachment order was requested (hereinafter referred to as the "defendant").

According to the records, the defendant appealed against the judgment of the court of first instance and asserted only unfair sentencing as the grounds for appeal. In such a case, the defendant did not recognize mental disorder in the judgment of the court of first instance or erred in the misapprehension of legal principles cannot be a legitimate ground for appeal.

In addition, examining various circumstances, such as the Defendant’s age, criminal records, character and conduct, environment, relationship with the victim, motive, means and consequence of each of the instant crimes, and circumstances after the crime, etc., the determination of the lower court’s punishment, which maintained the first instance judgment that sentenced the Defendant to imprisonment for life, is extremely unfair, even when considering the circumstances asserted by the Defendant.

B. As to the grounds of appeal by the prosecutor, even in cases where a sentence of death penalty, imprisonment with or without prison labor for an indefinite term or for not less than ten years is imposed on the defendant, a prosecutor cannot file an appeal on the grounds that such punishment is extremely weak (see, e.g., Supreme Court Decisions 94Do1705, Aug. 12, 1994; 2010Do17829, Apr. 28, 201; 201Do1777, Apr. 28, 201).

2. Ex officio determination

Article 9 (8) of the former Act on the Attachment, etc. of Electronic Monitoring, Etc. of Specific Criminal Offenders (amended by Act No. 11558, Dec. 18, 2012; hereinafter referred to as the "Electronic Monitoring, etc.") provides that "when an appeal or waiver or withdrawal is filed against the judgment of a specific criminal case, the judgment of the case of the claim for attachment order shall be deemed to have been waived or withdrawn." Article 9 (5) of the same Act provides that "The judgment of the case of the claim for attachment order shall be sentenced simultaneously with the judgment of the specific criminal case."

According to the records, the first instance court sentenced the defendant to life imprisonment, confiscation, disclosure and notification order for ten years, the order to attach an electronic tracking device for thirty years, and the order to attach an electronic device for the first instance judgment, due to the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes. The defendant appealed against the defendant case on the ground of unfair sentencing. The defendant appealed against the defendant case on the grounds of unfair sentencing. The prosecutor appealed from the whole of the defendant case and the order to attach an electronic device, but did not submit the grounds for appeal on the grounds of unfair sentencing. The court below did not make any decision on the case to attach an electronic device while dismissing all the defendant and the prosecutor

In light of the above provisions, if the defendant appealed against the accused case, the defendant shall be deemed to have filed an appeal regarding the attachment order case pursuant to Article 9(8) of the Electronic Monitoring Act, and the prosecutor may file an appeal for the benefit of the accused as well as the disadvantageous appeal against the accused, so it cannot be said that there is no benefit of appeal regarding the attachment order case. In such cases, the court below should have ordered the attachment order case simultaneously with the judgment of the accused case.

Nevertheless, the court below omitted the judgment and sentence regarding the attachment order case, which affected the conclusion of the judgment by misunderstanding the legal principles on appeal legal system under Article 9(8) of the Electronic Monitoring Act and omitting judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young

Justices Lee In-bok

Chief Justice Park Jong-young

Justices Kim Jae-han