2014Do16495 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (rape-rape against the disabled)

(a) A public official in charge of the punishment, etc. of a sexual crime committed primarily;

violation of the Act of Special Cases Concerning the Protection of Persons with Disabilities (Recting of Fraudulent Means by Persons with Disabilities) and name of the ancillary crime

Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes

(B) the Act on Special Cases concerning the Punishment, etc. of recognised Sexual Crimes;

Violations (rape quasi-rape, etc. for the disabled) and the sex of a crime of alternatively changed

Violation of the Act on Special Cases concerning the Punishment, etc. of Violence Crimes (Indecent Act against Disabled Persons)

2014 Jeondo268 (Joint Attachment Orders)

A

Defendant and the respondent for attachment order

Attorney Q Q (Korean Office Line)

Daejeon High Court Decision 2014No19, 2014 Jeonno3 (Consolidated) Decided June 6, 2014

Supreme Court Decision 2014Do8423, 2014 Jeondo151 Decided September 4, 2014

Daejeon High Court Decision 2014No406, 2014No55 (Joint) decided November 21, 2014

Judgment

February 26, 2015

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. misunderstanding of facts or misunderstanding of legal principles concerning each violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (rape, etc. against the disabled persons);

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, it is justifiable to have determined that the lower court convicted all of the charges of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Caused by Quasi-rape and Quasi-Indecent Act (hereinafter “Sexual Crimes Punishment Act”) among the facts charged in the instant case on the grounds stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine

2. Whether the principle of prohibition against disadvantageous alteration is violated;

In a case where the judgment of the court of final appeal is reversed by the defendant's final appeal and the case is remanded to the appellate court, the appellate court may not render a sentence more severe than the judgment of the appellate court reversed by applying the principle of prohibition of disadvantageous alteration in relation to the relation with the judgment of the court below prior to remand (see, e.g., Supreme Court Decision 2005Do8607, May 26, 2006). This legal principle also applies to the case where the appellate court recognizes the defendant guilty of a new criminal fact as there is a legitimate modification of indictment at the court below after remand (see, e.g., Supreme Court Decision 79Do2105, Mar. 25

According to the records, the court below affirmed the judgment of the court of first instance which ordered the defendant and the respondent of the attachment order (hereinafter referred to as the "defendant") to disclose and notify the case for three years, five years, and five years, and only the defendant appealed to the court below. The court below reversed the judgment of the court below before remanding the case and remanded the case to the court below. The court below found the defendant guilty as to the violation of the Sexual Violence Punishment Act due to sexual intercourse with the disabled's first and third as stated in the facts charged of this case, while maintaining the violation of the Sexual Violence Punishment Act due to sexual intercourse with the disabled's first and third as stated in the judgment below, the court below added the violation of the Sexual Violence Punishment Act due to quasi-rape with the disabled as a preliminary charge and added the violation of the Sexual Violence Punishment Act due to such indecent act with the disabled's second judgment to partly correct the part of the indecent act due to such indecent act with the disabled's second judgment. The court below reversed the court below's judgment and acquitted the defendant for five years, as to the case of this case.

According to the above legal principles, the court below's order of 4 years imprisonment with prison labor more than 3 years imposed by the court below prior to remand violates the principle of prohibition of disadvantageous alteration. Thus, the conviction part of the sexual crime case among the defendant's case of the court below cannot be reversed. The ground of appeal pointing this out has merit.

3. Scope of reversal

As long as the violation of the Sexual Assault Punishment Act due to quasi-rape against a disabled person, which is the ancillary charge against each of the facts charged in the judgment of the court below as stated in Articles 1 and 3 of the judgment of the court below, is reversed, the part of the violation of the Sexual Assault Punishment Act due to sexual intercourse, such as a deceptive scheme against the disabled person, which is the main charge of this part of the judgment of the court below, shall also be reversed together. Furthermore, since the case of disclosure and notification order under Articles 37 and 41 of the former Sexual Assault Punishment Act (wholly amended by Act No. 11556, Dec. 18, 2012) is an incidental disposition that is sentenced simultaneously with the judgment of the case of sexual assault crime, the part of the disclosure and notification order shall also be reversed. Furthermore, as long as the defendant case of the main case is reversed, the part of the judgment of the court below as to sexual assault crime shall also be reversed together with the electronic tracking device

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the entire judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Cho Jong-hee

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant