[1] Criteria for determining whether disadvantageous changes are applied to the principle of prohibition of disadvantageous changes

[2] The legal nature of the electronic monitoring system under the former Act on the Electronic Monitoring of Specific Sexual Offenders (=the type of security measures)

[3] The case holding that the appellate court's judgment which reversed the first instance court's judgment that sentenced "an order to attach an electronic tracking device for a long-term five years, a short-term five years, and a five-year period of imprisonment" to the defendant who committed a sexual crime and sentenced "an order to attach an electronic tracking device for a short-term five years, a short-term three years, and a twenty-year period of imprisonment"

[1] Article 368 of the Criminal Procedure Act / [2] Articles 1, 5, and 9 (see Articles 1, 5, and 9 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (Amended by Act No. 9654, May 8, 2009); Articles 5 (2) (see current Article 3 (2)), 8-2 (3) (see current Article 7 (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes); Article 12 (see current Article 14, 5, and 9 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders); Article 5 (1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims of Victims of Sexual Crimes (Amended by Act No. 10258, Apr. 15, 2010); Article 5 (2) (see current Article 3 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Article 5 (10) of the former Act on the Punishment, etc.

[1] Supreme Court Decision 2009Do10754 Decided December 24, 2009 (Gong2010Sang, 293) Supreme Court Decision 2009Do12967 Decided February 11, 2010 / [2] Supreme Court Decision 2009Do1947 Decided May 14, 2009, Supreme Court Decision 2009Do2009Do5 Decided September 5, 2009 (Gong2009Sang, 954) Supreme Court Decision 2009Do6061, 2009Do13 Decided September 10, 2009 (Gong2009Ha, 1726)

Defendant

Defendant and the respondent for attachment order

Attorney Kang Jin-su

Seoul High Court Decision 2010No787, 2010No47 decided June 10, 2010

The appeal is dismissed.

We examine the grounds of appeal.

1. Determination of the Defendant’s assertion of unreasonable sentencing

According to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. As such, in this case where the defendant and the person requesting an attachment order (hereinafter referred to as "defendant") were sentenced to more minor punishment, the argument that the amount of punishment is unfair cannot be a legitimate ground for appeal.

2. Judgment on the ground of appeal as to the attachment order case

A. As to the assertion of violation of the principle of prohibition of disadvantageous alteration

In applying the principle of prohibition of disadvantageous change to a defendant, determination as to whether a sentence imposed is disadvantageous to a defendant should be made on the basis of the severity of punishment under the Criminal Act, but not on the basis of whether it is practically disadvantageous to the defendant in light of the overall order (see, e.g., Supreme Court Decision 2009Do12967, Feb. 11, 2010). The electronic monitoring system under the former Act on the Electronic Monitoring of Specific Sexual Offenders is a kind of security measure aimed at protecting people from sexual crimes by tracking their behavior and attaching an electronic device capable of verifying their location through re-social rehabilitation through the prevention of recidivism and the correction of character and behavior, and its essence differs from punishment (see Supreme Court Decision 2009Do6061, Feb. 10, 2009). In light of the above, the court below’s decision that sentenced the defendant to imprisonment with prison labor for a short term of 7 years and 2 years, and the order to attach an electronic tracking device for a short term of 5 years and 3 years after the short term of imprisonment.

The argument in the other grounds of appeal cannot be accepted.

B. As to the non-existence of the grounds for requesting attachment order

Taking full account of the circumstances stated in its reasoning, the lower court determined that the person who requested an attachment order, as a person with the habitor of a sexual crime, is likely to recommit a sexual crime.

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just and acceptable.

The court below did not err in the misapprehension of legal principles as to the grounds for requesting attachment order.

C. As to the assertion of illegality of the attachment period

According to the reasoning of the judgment of the court below, the court below revealed that the period of attachment is 20 years and sentenced to an attachment order within the scope of the period under the proviso of Article 1 of Addenda of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, Article 3, Article 9 (1) 1, and the proviso of Article 9 (1) of Addenda of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders. Thus, there is no error of law in this regard, and the assertion that the period of attachment is unfair does not constitute grounds of appeal under each subparagraph of Article 383 of the Criminal Procedure Act applied mutatis mutandis by Article

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)