2017Do7402 A. Indecent act by compulsion

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

2017Mo1484(Consolidated) Appeal against the decision for petition for probation order

A

Defendant-Probation Order Claimer

Attorney K (Korean National Assembly)

Seoul High Court Decision 2017No568, 2017No16 decided April 28, 2017

October 26, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Defendant case;

A. Of the facts charged in the instant case, the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”)

D) The summary of the violation (confidential, etc.) is as follows: the defendant and the person requesting probation order (hereinafter referred to as "the defendant").

A person subject to registration of personal information (hereinafter referred to as "person") shall be a person subject to registration of personal information every one year from June 15, 2015, which is the first date of registration.

The police agency shall be present at the police agency and take photographs of the upper half of the left-hand side of the defendant, and a telegraphic photo;

Although it is required to store and keep electronic records, there is a justifiable reason after June 15, 2016.

Without being present at a police station, it was not present.

As to this, the court below held that "persons subject to registration" have jurisdiction over their domicile every one year from the date of initial registration.

The chief of the police agency shall attend the inspection agency and have the chief of the police agency be on the right upper half of the left-hand side and telegraph.

Local photographs shall be taken so that they may be stored and kept in electronic form by photographing them."

Article 43(4) of the former Sexual Violence Punishment Act (Amended by Act No. 14412, Dec. 20, 2016)

The above facts charged were found guilty by applying the text.

B. However, we cannot agree with the above judgment of the court below for the following reasons.

1) If an act does not constitute a crime by an alteration of the law after the crime was committed.

The new law shall be applied (Article 1(2) of the Criminal Act), and the revised punishment of sexual assault enforced on December 20, 2016 shall be imposed.

Article 4 of the Addenda to the Act shall apply mutatis mutandis to "Article 43 (4) (including cases applied mutatis mutandis pursuant to Article 44 (6)), and Article 4

The amended provisions of Articles 45(5) and (6), 45-2 and 45-3 before this Act enters into force (Article 45-2)

The amended provisions of Article 45-3 shall be subject to registration before the enforcement date under the proviso to Article 1 of the Addenda.

A person subject to registration whose conviction or summary order has become final and conclusive due to a sex offense (the previous child or office);

A person subject to registration pursuant to the Act on the Protection of Juveniles against Sexual Abuse shall also be included in the case of a person subject to registration.

Article 43(4)(the main sentence) provides that "the subject of registration shall be the basis in accordance with paragraph 1 of this article."

Where personal information is submitted, it shall have jurisdiction over the domicile from the following year to December 31 each year;

The chief of police station shall attend the police station and have the chief of police station reflect on the left-hand side of his party.

The new local photo is revised to be stored and stored in electronic records by photographing it."

2) However, the Defendant, who was first registered as a person subject to registration of personal information on June 15, 2015, was sexual assault against the former.

The basic personal information is submitted in accordance with Article 43(4) of the Act on the Punishment of Sexual Violence amended, not the Punishment of Punishment

From January 1, 2016 to December 31, 2016, the following year is present at the competent police agency and photographs;

It is only required to comply with the above obligations until June 15, 2016, as described in the above facts charged.

As such, the above facts charged cannot be deemed to have been implemented, Article 50(3) of the amended Sexual Violence Punishment Act

No violation of subparagraph 3 or Article 43 (4) shall be deemed to constitute an act in violation of paragraph (4).

3) Nevertheless, the lower court erred by misapprehending the Sexual Violence Punishment Act (Confidentiality, etc.) among the facts charged in the instant case

The lower court found the Defendant guilty. In so determining, the amended Act on the Punishment of Sexual Assaults

misunderstanding of interest, thereby adversely affecting the conclusion of the judgment.

C. Scope of reversal

1) For the foregoing reasons, the part of the judgment below on the violation of the Sexual Violence Punishment Act (Confidentiality, etc.) should be reversed.

The court below held that this part (the crime No. 2 of the judgment of the court of first instance) and the indecent act by compulsion on July 28, 2016 (the court of first instance).

No. 1-b. The crime is deemed to be one type of concurrent crimes under the former part of Article 37 of the Criminal Act.

Since the judgment of the court of first instance which sentenced to imprisonment (eight months), this part of the judgment of the court of first instance (the court of first instance) is maintained.

Article 1-2(b) and 2 of the Si shall not be exempted from reversal.

2) Meanwhile, among the judgment of the court of first instance, Article 1-1 of the judgment of the court of first instance

Article 2 of the Act on the Monitoring, etc. of Electronic Devices (hereinafter referred to as the "Electronic Devices Act").

The judgment of the case of probation order constitutes a specific crime, and the judgment of the case of probation order simultaneously with the judgment of the specific crime case.

§ 21-8, Article 9(5) of the Electronic Monitoring Act.

However, the probation order of the court below is No. 1-A and No. 2 of the judgment of the court of first instance.

The part of the judgment of the court below regarding probation order shall be reversed as follows.

In case of destroying the part of the probation order, the above provision of the Electronic Monitoring Act shall apply.

In light of the purport, even though there is no error in the part of the defendant's case, we cannot reverse it.

In other words, among the judgment of the court of first instance, the part of the crime should also be reversed.

3) Order to complete a program under the Sexual Violence Punishment Act is found guilty on a sex offender.

The defendant's case against a sexual crime is reversed as long as the defendant's case is reversed.

The part of the order shall also be reversed.

4) An order for disclosure and notification under the Sexual Violence Punishment Act shall be issued simultaneously with a judgment on a sexual crime case.

Since it is an incidental disposition to be declared by the court, as long as the defendant's case against sexual crimes is reversed, the name of disclosure thereof.

Order and notification order shall also be reversed.

2. As to the case of probation order

As long as the defendant filed an appeal against the accused case, Articles 21-8 and 9 of the Electronic Monitoring Act shall apply.

A request for probation order under paragraph (8) shall be deemed to have been filed by an appeal.

As to the case of probation order claim, the appeal does not state the grounds for the appeal, and the appeal is filed.

Although there is no statement of grounds for objection to it, Article 21 of the Electronic Monitoring Act does not apply.

8 and Article 9(5) of the Act on the Punishment, etc. of Specific Crimes simultaneously with a judgment on the case of a probation order claim

In light of the fact that the decision of the court below is required to be made, the decision of the court below on the accused case

In case of destruction by illegal act, the protection to be deliberated together with it and sentenced at the same time;

The case of the observation order shall not also be reversed.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed and the case C

The Si shall be remanded to the court below for a trial and determination. It shall be remanded to the assent of all Justices who reviewed the appeal.

It is decided as per Disposition by the assent of all participating Justices.

The presiding judge shall keep the record of the Justice

The Chief Justice Park Jae-young

Justices Cho Jong-hee

Justices Cho Jae-chul