Where a judgment of suspended sentence is rendered on a sex offense subject to registration under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, whether a person subject to registration is obligated to submit personal information as a person subject to registration immediately after the judgment becomes final and conclusive (affirmative), and whether a person is exempted from the obligation to submit personal information after two years have elapsed since the judgment of suspended sentence became final and conclusive (affirmative) / Whether the grounds of appeal disputing errors in the subject, contents, and procedure of notification of the obligation to submit

In light of the contents and form of Articles 16(2), 42(1) and (2), 43(1), (3) and (4), and 45(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter “Special Cases concerning Sexual Crimes”), and the legal nature of the judgment on the suspension of sentence, etc., a judgment of conviction due to a sex offense subject to registration is naturally arising pursuant to the provisions of the Act on Special Cases concerning Sexual Violence, rather than a court imposing a separate obligation to submit personal information on a person subject to registration, and if a judgment of conviction becomes final and conclusive due to a sex offense subject to registration, the judgment of suspended sentence cannot be deemed excluded. Therefore, even in cases where a judgment of suspended sentence is rendered with respect to a sex offense subject to registration, the judgment of suspended sentence becomes final and conclusive, and thus, the person subject to registration is obligated to submit personal information as a person subject to registration if it is deemed acquitted after

In addition, since a court does not separately impose a duty to submit personal information on a person subject to registration, it is meaningful that a court that declares a judgment of conviction must inform that a person subject to registration should submit personal information. Therefore, even if a court erred in the omission of notification or its contents, etc. while rendering a judgment of conviction, it may rectify errors by newly notifying that a person subject to registration should submit personal information, etc. of legitimate contents, and the higher court may also correct errors by newly notifying that person subject to registration should submit personal information without any necessity to reverse the judgment. Thus, the grounds of appeal disputing errors in the subject matter, content, procedure, etc. in relation to the notification of the first instance court or the lower court’s duty to submit personal information, are related to matters that do not affect the judgment, and thus, cannot be legitimate grounds of appeal

Articles 16(2), 42(1) and (2), 43(1), (3) and (4), and 45(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Articles 59, 59-2, 60, and 61 of the Criminal Procedure Act; Article 383 subparag. 1 of the Criminal Procedure Act

Supreme Court Decision 2013Do14610 Decided February 13, 2014

Defendant

Prosecutor

Seoul Northern District Court Decision 2013No1570 decided February 20, 2014

The appeal is dismissed.

The grounds of appeal are examined.

1. Articles 42(1), 43(1), and 45(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Special Cases Concerning Sexual Crimes”) provide that a person whose judgment of conviction has become final and conclusive due to a sex offense subject to registration shall submit personal information to the head of the competent police agency within 30 days from the date the person subject to registration of personal information becomes final and conclusive, and the Minister of Justice shall preserve and manage the registered information of a person subject to registration for 20 years from the date of initial registration. Article 43(3) and (4) of the same Act provides that a person subject to registration shall submit the submitted personal information to the head of the competent police agency within 20 days from the date the reason for change and change occur, and shall be present at the competent police agency every one year from the date of initial registration to take the name of the person subject to registration, on the opposite, opposite, opposite, and opposite to him/her, and a telephone photo.

Meanwhile, when a sentence of imprisonment or imprisonment without prison labor for not more than one year, suspension of qualifications, or fine is to be imposed and if the circumstances of the sentence are remarkable, taking into account the matters as prescribed in Article 51 of the Criminal Act, the suspended sentence may be imposed. Such judgment of the suspended sentence is to be deemed to be acquitted when one of the conviction who is a judgment of the suspended sentence becomes final during the suspension of qualifications or more severe punishment, or when a prior conviction resulting in suspension of qualifications or more severe punishment is discovered during the suspension of qualifications, or when two years have elapsed since the date of the suspended sentence without any such reason

However, Article 16(2) of the Act on Special Cases Concerning the Prevention of Sexual Violence explicitly excludes a suspended sentence from a judgment of conviction that requires an order to attend a course and an order to complete a program. However, Article 42(1) and Article 43(1) of the Act does not stipulate a provision excluding a suspended sentence for conviction that is subject to the obligation to register personal information and to submit personal information.

In light of the contents and form of the Act on Special Cases Concerning the Prevention of Sexual Violence and the purport thereof, and the legal nature of the judgment of suspended sentence, a judgment of conviction for a sex offense subject to registration is naturally generated pursuant to the provisions of the Act on Special Cases Concerning the Prevention of Sexual Violence, and a judgment of suspended sentence cannot be deemed excluded from the judgment of suspended sentence. Therefore, even in the case of a judgment of suspended sentence with respect to a sex offense subject to registration, if a judgment of suspended sentence becomes final and conclusive, and the judgment of suspended sentence is deemed to be acquitted after two years have elapsed since the judgment of suspended sentence became final and conclusive, it is interpreted

In addition, since a court does not separately impose a duty to submit personal information on a person subject to registration, it is meaningful that a court that declares a judgment of conviction must inform that a person subject to registration should submit personal information. Therefore, even if a court erred in the omission of notification or its content, etc. while rendering a judgment of conviction, the court may notify the person subject to registration of the duty to submit personal information by modifying the legitimate contents and by newly notifying the person subject to submission of personal information without any necessity to reverse the judgment. Thus, the ground of appeal disputing errors in the subject, content, procedure, etc. in relation to the notification of the duty to submit personal information of the court of first instance or the court below is related to matters that do not affect the judgment, and it cannot be a legitimate ground of appeal (see, e.g., Supreme Court Decision 2013Do14610, Feb. 13, 2014).

2. According to the records, the first instance court convicted the Defendant of the facts charged in this case, which is subject to the registration of personal information under the Act on Special Cases concerning the Prevention of Sexual Violence, but suspended the sentence of a fine of one million won, and notified the Defendant that personal information will be submitted only when the suspension of sentence is invalidated. The lower court rejected the prosecutor’s allegation in the grounds of appeal on unfair sentencing and upheld the first instance judgment.

3. According to the legal principles as seen earlier, even if the judgment of suspended sentence against the defendant becomes final and conclusive, it is erroneous that the defendant is obligated to submit personal information only when the suspended sentence becomes invalidated in the first instance trial. Thus, the court is to correct this error and notify the defendant that he becomes a person subject to registration of personal information pursuant to Article 42(1) of the Act on Special Cases Concerning Sexual Violence and is obligated to submit personal information to the competent authority pursuant to Article 43 of the same Act.

However, the ground of appeal of this case, which maintained the judgment of the court of first instance on the ground of error in the contents of notification of personal information to be submitted to the court of first instance, is disputing matters that do not affect the judgment, and thus, cannot be accepted as it does not constitute a legitimate ground of appeal as seen above.

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

Justices Kim So-young (Presiding Justice)