(영문) 대구고등법원 2011.7.28.선고 2011노198 판결

At the time of crime, the Defendant was under the influence of alcohol, but did not determine it, and the lower court erred by misapprehending the fact.

B. Unreasonable sentencing

The sentence of the court below is too unreasonable.

2. Determination

(a) Ex officio destruction;

(1) Prior to the judgment on the grounds of appeal by the defendant, the crime of this case was committed on December 5, 2010. The court below ordered the disclosure of registered information pursuant to Article 37 (1) 1 and (3) of the same Act and the notification of registered information pursuant to Article 41 (1) 1 and (3) of the same Act, on the ground that the crime of this case constitutes a sexual crime subject to registration under Article 32 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 10258, Apr. 15, 2010; hereinafter referred to as the " sexual crime subject to registration" in Article 2 (a).

(B) At the time of enforcement of the registration, disclosure order, and notification order of personal information newly established by law.

Article 1 of the Addenda to the same Act provides that "The provision of Articles 32 through 36 of the Addenda to the same Act shall apply to the registration of personal information from "the person for whom a judgment of conviction has become final and conclusive after the enforcement of the provision", and Articles 37, 38, 41, and 42 of the Addenda to the same Act shall apply from "the person for whom the first time after the enforcement of the provision to the disclosure order or the notification order was issued" to "the person for whom the disclosure order or the first time after the enforcement of the above provision is issued".

(3) According to the foregoing language and text, even if a person who committed a sexual crime subject to registration before April 16, 201, the enforcement date of the pertinent provision, is not likely to be interpreted as retroactively applied if the conviction of such person is determined after the enforcement date.

However, in full view of the following facts, it is reasonable to interpret "a person whose first conviction was affirmed after the enforcement of Article 2 (1) of the Addenda" as "a person who was convicted of committing a sexual crime subject to registration for the first time after the enforcement of "the first sex crime subject to registration", and "a person subject to prior order of disclosure or notification" as "a person subject to prior order of disclosure or notification for the first time after the enforcement of "the first sexual crime subject to registration" as "a person subject to prior order of disclosure or notification for the first time after the enforcement of "the first sexual crime subject to registration", and therefore, the judgment of the court below that ordered disclosure or notification

(A) Although security measures such as the disclosure order and notification order differ from punishment and essence, it is clear that they are disadvantageous dispositions to the accused, its retroactive application should be exceptionally permitted in terms of the principle of the rule of law, the rights and freedom of individuals, and the stability of law rate life, as well as the clear provisions, and in cases where the opinion can be divided as there is no clear provision, it would be contrary to the spirit of the above Constitution to interpret the relevant provisions as a direction that can be applied retroactively without constitutional consistency.

(B) Article 1 of the Addenda to the Act on the Protection of Sex Offenses of Children and Juveniles (Act No. 10260, hereinafter referred to as "the Act on the Protection of Child and Juveniles") amended on the same day through discussions similar to the enactment of the Act on the same day shall enter into force on January 1, 201. Article 4 of the Act on the Protection of Child and Juveniles from the first time after the enforcement of the amended provisions on the amendment of the Act on the Protection of Child and Juveniles from the date of notification, clearly excludes retroactive effect by stipulating that the provision on the amendment of the Act on the Protection of Child and Juveniles from the date of notification was applied to the first crime against sexual intercourse, and it is difficult to find any other reason to recognize retroactive effect only under the Act on the Protection of Sexual Traffic introduced the same system. Moreover, the language of Article 2 of the Addenda to the Act on the Protection of Child and Juveniles does not seem to clearly recognize retroactive effect, and it cannot be interpreted to the effect that the disclosure order is retroactively applied to the disclosure order just because it differs from the language of the Act.

(C) If we consider the above provision to the effect that the retroactive effect is acknowledged, the application scope of retroactive effect varies depending on the interpretation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims, even if the previous sexual crime is included in the sexual crime subject to registration, and it is unclear whether or not the appeal by the defendant or the prosecutor has changed the final time of judgment, and the difference between the defendants who committed the sexual crime in the same period has occurred,

(D) The legislative intent of disclosure orders, etc. prescribed by the Sexual Exposure Act is to expand the system of disclosure orders, etc. for crimes subject to children and juveniles to be committed by adults, and the subject of disclosure orders, etc. prescribed by the Listening Act is excluded from those subject to disclosure orders, etc. prescribed by the Listening Act (Articles 32(1) and 37(1) of the Sexual Exposure Act), and the subject of cleaning years committed before January 1, 201 cannot be ordered to notify the offender pursuant to the Listening Act, and it is excluded from the subject of disclosure orders prescribed by the Listening Act because it is subject to disclosure orders prescribed by the Listening Act and is excluded from the subject of the sexual Exposure Act. If the retroactive effect of the above provision is recognized, it would result in a violation of equity as it is more favorable for children and juveniles.

(4) Therefore, among the judgment below, the part of disclosure order and notification order concerning the facts constituting an offense as indicated in the judgment of the court below cannot be reversed. An disclosure order and notification order are incidental disposition to be declared simultaneously with the judgment of a sexual crime subject to registration, and where the part of disclosure order and notification order is unlawful, all of the defendant's case shall be reversed. However, even if the defendant's mental and physical assertion of the defendant's mental and physical disorder is still subject to the judgment

B. Determination of mental disorder assertion

According to the evidence duly admitted and investigated by the court below, even though the defendant was somewhat drunk prior to the crime of this case, considering all the circumstances such as the background, means and method of the crime of this case, and the statement and behavior of the defendant before and after the crime of this case, it is not recognized that the defendant at the time of the crime of this case had no or weak ability to discern things or make decisions.

The lower judgment that did not recognize the mental disorder of the Defendant did not err by misapprehending the facts.

3. Conclusion

The judgment of the court below is reversed under Article 364(2) of the Criminal Procedure Act without examining the defendant's decision on the grounds of ex officio reversal, and the following decision is made through pleadings.

Criminal facts and summary of evidence

The summary of the facts charged and the evidence recognized by this court is identical to each corresponding column of the judgment of the court below, and thus, it is quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Articles 8(2), 14, and 5(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 297 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

Reasons for sentencing

The rape crime of this case was committed in the attempted crime, and the defendant does not want the punishment of the victim under the agreement with the victim, and the defendant repents the wrongness of the defendant.

On the other hand, the instant crime attempted to rape 00 of the Defendant’s relatives, and committed an injury requiring approximately four weeks’ medical treatment in the process, and the lower limit of the applicable sentences that have been mitigated is three years and six months’ imprisonment. In addition, the Defendant’s age, character and conduct, the number and the result of the instant crime, as well as all of the sentencing conditions in the arguments in the instant case, including the circumstances after the commission of the crime, sentence like the disposition is imposed.