Defendant

Prosecutor

Sub-sections

Attorney Cho Young-soo

Suwon District Court Decision 2010Dahap71, 2010Naga8 (Joint) Decided June 11, 2010

1. The prosecutor's appeal on the part of the defendant's case is dismissed.

2. The part of the judgment below regarding the attachment order case shall be reversed.

To the person subject to the request for attachment order, the attachment of an electronic tracking device shall be ordered for six years.

Matters to be observed shall be imposed on the person requested to attach an attachment order, as stated in the attached Form.

1. Summary of grounds for appeal;

The punishment (three years of imprisonment and four years of suspended execution) and the attachment order (three years of imprisonment) sentenced by the court below to the defendant and the person subject to the request for the attachment order (hereinafter referred to as the "defendant") are deemed to be too uneasible and unfair.

2. Determination

A. As to the part on the defendant's case

The crime of this case is an indecent act committed by the Defendant twice by driving away the victim of the sixth-year elementary school who is in school from school to school, and the case or the nature of the crime is not less weak, and due to this, the Defendant should be held liable for the corresponding mental impact.

However, on the other hand, in full view of the following: (a) the Defendant recognized the instant crime and divided the wrong facts; (b) the Defendant did not have any particular criminal records; (c) the Defendant was merely satisfing the shoulder and parts of the victim; and (d) the degree of indecent act is minor; (b) the Defendant paid the amount corresponding to the victim’s side at the time of the trial; and (c) the Defendant’s age, character and conduct, and environment, and the various sentencing conditions indicated in the instant pleadings, such as the Defendant’s age, character and environment, the lower court’s punishment is deemed

B. As to the part of the attachment order case

Before the prosecutor’s judgment on this part of the grounds for appeal, the court below ex officio ordered the Defendant to attach a location tracking device for three years by applying Article 9(1) of the former Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (amended by Act No. 10257, Apr. 15, 2010).

However, the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders was promulgated by Act No. 10257, Apr. 15, 2010; Article 9(1) of the Act was enforced from the date of its promulgation pursuant to the proviso of Article 1 of the Addenda of the Act; Article 3 of the Addenda of the Act should also apply to the facts constituting the instant attachment order prior to the enforcement of the Act. Accordingly, Article 9(1) of the Act should also apply to the facts constituting the instant attachment order. Accordingly, in the instant case where a person under 13 years of age commits a specific crime against a person under 13 years of age, the lower limit of the statutory penalty is imprisonment for a limited term of not less than 6 years but not more than 20 years.

Therefore, the part of the judgment of the court below regarding the attachment order case shall be subject to the law, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the prosecutor's appeal regarding the part of the defendant's case among the judgment below is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. Since the part of the attachment order among the judgment below is subject to the above ex officio reversal, the prosecutor's decision on this part of the grounds for appeal is reversed in accordance with Article 364 (2) of the Criminal Procedure Act and Article 35 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, and the part of the attachment order among the judgment below is reversed,

Article 369 of the Criminal Procedure Act and Article 35 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders is cited, since the facts underlying the attachment order acknowledged by this court and the summary of the evidence are the same as the corresponding columns of the judgment of the court below.

1. Issuing an order to attach an electronic tracking device and matters to be observed;

Article 9(1)2, Article 5(1)3 and 4, and Article 9-2(1)2, 3, and 4 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders

[Attachment]

Judges Kim Jae-chul (Presiding Judge)