Defendant

Defendant and Prosecutor

Kim Jong-hee (prosecutions) and Lee Wil (Trial)

Attorney Transfer Regulations (National Assembly Election)

Suwon District Court Decision 2015Ma3500 Decided May 27, 2016

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misapprehension of legal principles

Of the judgment of the court below, it is true that the defendant did not possess a portable tracking device for charging, etc., however, that the defendant's living only within the building (the building of the Korea Rehabilitation Agency) where the defendant is living does not impair the utility of the location tracking device, and that the defendant did not possess a portable tracking device, thereby undermining the utility of the location tracking device.

2) Unreasonable sentencing

The punishment (fine 5 million won) imposed by the court below on the defendant is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts and misapprehension of legal principles

As to the acquittal portion of the judgment below, the act of damaging the electronic device is punished under the legal text of the instant penal provision. In full view of the fact that the rap of location tracking device is part of the above electronic device and the act of cutting it constitutes "damage to the electronic device", the defendant's act is not an act of managing the electronic device so that the function of the electronic device can be maintained normally, the replacement of the above rap is required, and the cost was considerably required, the judgment of the court below which acquitted the defendant on the charge of the act of this case by excessively narrow interpretation of the instant penal provision, and it is erroneous in the misapprehension of legal principles

2) Unreasonable sentencing

Punishments (fines 5 million won) imposed on the defendant by the court below are too unhued and unfair.

2. Determination

A. Judgment on misconception of facts and misapprehension of legal principles

1) Judgment on the mistake of facts and misapprehension of legal principles by the defendant

In light of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below and the court below, i.e., ① the act that a person subject to attachment did not possess a portable tracking device and thus makes it impossible to track the location was an act that undermines the essential function and utility of the location tracking device, ② the Defendant was educated that the scope of the tracking device is five meters in the event of wearing the location tracking device (Evidence No. 40 pages), ③ the Defendant’s escape warning exceeds the scope of the call of the tracking device without carrying a portable tracking device, and the Defendant was given attention on the duty to possess a portable tracking device at contact with the probation officer in such a case, but the same act was repeated several times, and the Defendant’s act constitutes an act that undermines the effectiveness of the location tracking device, and the Defendant’s criminal intent is not accepted. The above argument by the Defendant cannot be accepted.

2) Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

The lower court found the Defendant not guilty of this part of the facts charged on the ground that even if the Defendant partially cut the end portion of the electronic device (electronic device) attached to him/her, it did not harm the usefulness of location tracking if it did not interfere with the presumption of location because it did not harm its utility even if it partially cut the electronic device or partially added other things, it did not constitute a violation of the duty to attach the electronic device.

Article 38 of the Act on the Attachment, etc. of Location Monitoring Electronic Monitoring, Etc. of Specific Criminal Offenders punished the act that a person subject to attachment of an electronic device arbitrarily separates or damages the electronic device from his/her body during the period of attachment, obstructs its propagation, alters the data received, or otherwise impairs its utility. Here, “act that impairs its effectiveness” refers to an act that impairs the actual utility of the electronic device that causes the attachment of the electronic device to trace its location (see, e.g., Supreme Court Decision 2012Do5862, Aug. 17, 2012). According to the evidence duly adopted and investigated by the court below, it is difficult to deem that the Defendant was unable to attach the electronic device, or that the actual utility of the electronic device was impaired to trace its location, even if it was found that the Defendant was partially well aware of the end of rap of the location tracking device, and there is no evidence to recognize it otherwise.

Therefore, we affirm the judgment of the court below which acquitted this part of the facts charged for the above reasons, and it is not erroneous in the misunderstanding of facts or misunderstanding of legal principles. The prosecutor's above assertion cannot be accepted.

B. Determination on the assertion of unfair sentencing

Although the Defendant received several times of attention on the obligation to possess a portable tracking device, it is not good that the Defendant committed a crime repeatedly over a considerable period of time and disregarding it. However, it seems that the time when the Defendant was unable to track his location, but did not go beyond the scope of his/her residence in fact during the period. There is no special change in circumstances that could vary between the lower court and the sentence.

In full view of the above circumstances and the Defendant’s age, character and conduct, environment, family relationship, motive, background, means and consequence of the crime, and the circumstances after the crime, etc., the lower court’s punishment cannot be deemed to be too weak or unreasonable.

Therefore, the defendant and prosecutor's argument of unreasonable sentencing is without merit.

3. Conclusion

Therefore, since the defendant and prosecutor's appeal are without merit, they are all dismissed under Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Young-young (Presiding Judge)