2016Do7112 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.)

1. A;

2. B

Defendant B and Prosecutor (Defendant A)

Attorney C (Korean National Assembly for Defendant A)

Attorney D (Korean National Assembly for Defendant B)

Daegu High Court Decision 2015No684 decided May 3, 2016

July 27, 2016

The part of the lower judgment against Defendant A is reversed, and that part of the case is remanded to the Daegu High Court.

Defendant B’s appeal is dismissed.

The grounds of appeal are examined.

1. As to Defendant B’s ground of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court is justifiable to have found Defendant B guilty of the facts charged in this case on the grounds stated in its reasoning, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of logical and empirical rules and by exceeding the bounds of free evaluation of evidence, or by misapprehending the legal doctrine on “business” under Article 15(1)2 of the Act on the Protection of Children and Juveniles against Sexual Abuse.

In addition, pursuant to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without labor for more than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. As such, in this case where a more minor sentence has been imposed on Defendant B, the argument that the amount of punishment is unreasonable is not

Other grounds of appeal shall not constitute legitimate grounds of appeal under Article 383 of the Criminal Procedure Act.

2. As to the Prosecutor’s Grounds of Appeal

Except as otherwise provided, "Juveniles" under Article 60 (2) of the Juvenile Act refers to "Juveniles" under Article 2 of the Juvenile Act, and "Juveniles" under Article 2 of the Juvenile Act refers to those under the age of 19.

Here, a person under 19 years of age is a condition for a trial, and must continue to exist not only in the case of crime but also in the case of trial. Therefore, whether a person falls under a "juvenile" subject to Article 60 (2) of the Juvenile Act should be determined based on the time of adjudication of fact-finding court, i.e., the time of adjudication of fact-finding court. Since a juvenile is in the process of forming personality and is in a special mental East state with mental and physical development, the Juvenile Act is under the condition of a juvenile, due to

Article 60(2) of the Juvenile Act provides for special measures regarding criminal punishment to assist juveniles to grow in a sound manner (see Article 1 of the Juvenile Act). In this regard, Article 60(2) of the Juvenile Act does not provide for various special measures against juveniles in criminal procedures, such as Article 9 of the Criminal Act, nor does it provide for the identification of age as a responsible element or the characteristics of juveniles as a responsible element (see, e.g., Supreme Court Decisions 91Do2393, Dec. 10, 1991; 2009Do2682, May 28, 2009; 2009Do7, May 28, 2009). This is a legal doctrine that the Supreme Court has previously held, and there is no reason to consider the change of this legal doctrine in this case.

Nevertheless, the lower court, contrary to its view, deemed that Article 60(2) of the Juvenile Act provides that the punishment shall be mitigated considering the characteristics of juveniles at the time of committing the crime, on the ground that it is a provision that allows the mitigation of punishment, and that it shall be applied on the basis of the time of committing the crime, such as having the nature of substantive law. In so doing, the lower court rendered a statutory mitigation pursuant to Article 60(2) of the Juvenile Act on the ground that Defendant A who was under the age of 19 was under the age of 19 at the time of sentencing. In so doing, it erred by misapprehending the legal doctrine

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal by the prosecutor, the part concerning Defendant A among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant B’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de

Justices Lee Sang-hoon

Justices Kim Jae-tae

Justices Park Sang-ok