[1] Whether deletion of Article 2(1) of the former Punishment of Violences, etc. Act, which provides for aggravated elements for violent crimes under the Criminal Act, is an anti-sexual measure taken from the fact that the previous measure that uniformly punished individual crimes listed in each subparagraph of the same Article is unfair, and the new law should be applied in accordance with Article 1(2) of the Criminal Act (affirmative)

[2] In a case where the crime of indecent act by compulsion by military personnel, etc. under Article 92-2 of the former Military Criminal Act was committed before the enforcement date of the Military Criminal Act amended by Act No. 11734 on April 5, 2013, whether it is an offense subject to prosecution subject to prosecution (affirmative), and whether it constitutes a sexual crime subject to the application of the former Special Act on the Punishment, etc

[3] Whether the filing period of a sexual crime subject to a complaint, which was committed before the enforcement date of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11729, Apr. 5, 2013), constitutes “one year from the date on which he/she becomes aware of the criminal fact” under the main sentence of Article 18(1) of the same Act prior to the wholly amended Act by Act No. 11556, Dec. 18, 2012

[4] Meaning of “cruel act” under Article 62 of the Military Criminal Act and standard for determining whether an act constitutes a harsh act

[5] Whether a judgment of conviction becomes final and conclusive due to a sex offense subject to registration under the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (affirmative)

[1] Articles 1(2), 260(1) and 264 of the Criminal Act, Article 2(1) (current deleted) of the former Punishment of Violences, etc. Act (Amended by Act No. 13718, Jan. 6, 2016) / [2] Articles 92-2 (current Article 92-3), 92-8 ( Deletion), Addenda to the Military Criminal Act (Amended by Act No. 11734, Apr. 5, 2013); Article 298 of the Criminal Act; Article 2(1)3 and (2) of the former Act on Special Cases Concerning the Punishment of Sexual Crimes (Amended by Act No. 1156, Dec. 18, 2012); Article 2(1)5 of the former Act on Special Cases Concerning the Punishment of Sexual Crimes (Amended by Act No. 11510, Apr. 1, 2013); Article 2(1)5 of the former Criminal Procedure Act (Amended by Act No. 15206, Dec. 18, 20197, / [3]

[1] Supreme Court Decision 2009Do12930 Decided March 11, 2010 (Gong2010Sang, 776), Supreme Court Decision 2013Do4862, 2013 Jeondo101 Decided July 11, 2013 (Gong2013Ha, 1553), Supreme Court Decision 2015Do18636 Decided February 18, 2016 / [2] Supreme Court Decision 2014Do731 Decided December 24, 2014 / [4] Supreme Court Decision 2008Do2222 Decided May 29, 2008 (Gong2008Ha, 956), Supreme Court Decision 2013Do1634 Decided December 10, 2014 [204Do13164 decided December 13, 2016] Supreme Court Decision 2014Do163149 decided December 16, 2014, 2014

Defendant

Defendant

Law Firm Tae-dong, Attorney Park Jong-soo et al.

High Court for Armed Forces Decision 2014No255 Decided January 29, 2015

The conviction part of the judgment of the court below shall be reversed, and that part of the case shall be remanded to the High Military Court.

1. The decision shall be made ex officio;

A. As to the violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.)

The lower court found the Defendant guilty of this part of the facts charged by applying Articles 3(1) and 2(1)1 of the former Punishment of Violences, etc. Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter “former Punishment of Violences Act”) and Article 260(1)1 of the Criminal Act.

However, the Constitutional Court rendered a decision of unconstitutionality as to “a person who commits a crime under Article 260(1) of the Criminal Act by carrying a deadly weapon or other dangerous object” under Article 3(1) of the former Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014) and the part concerning “a person who commits a crime under Article 260(1) of the Criminal Act by carrying a deadly weapon or other dangerous object” under Article 3(1) of the former Punishment of Violences, etc. Act (see, e.g., Constitutional Court en banc Order 2014Hun-Ba154, Sept. 24, 2015). Accordingly, Article 47(3) of the Constitutional Court Act retroactively loses its effect.

In a case where the penal law or the legal provision becomes retroactively null and void due to the decision of unconstitutionality, the defendant's case prosecuted by applying the pertinent provision constitutes a crime (see, e.g., Supreme Court Decisions 91Do2825, May 8, 1992; 2005Do8317, Jun. 28, 2007) and thus, the judgment of the court below which found the defendant guilty of this part of the facts charged became unable to maintain any longer without the need to determine the defendant's grounds of appeal.

B. As to the violation of the Punishment of Violences, etc. Act (Habitual assault)

The lower court found the Defendant guilty of this part of the facts charged by applying Article 2(1)1 of the former Punishment of Violences Act and Article 260(1) of the Criminal Act.

Article 2(1) of the former Punishment of Violences Act provides that “A person who habitually commits a crime falling under any of the following subparagraphs shall be punished in accordance with the following classification” (Article 2(1) of the same Act provides for the list of violent crimes prescribed by the Criminal Act and the corresponding statutory punishment. However, the Act on the Punishment of Violences, etc., amended and enforced by Act No. 13718, Jan. 6, 2016, deleted Article 2(1) and did not separately stipulate transitional provisions.

The purport of Article 2(1) of the former Punishment of Violences Act, which provides for aggravated elements for violent crimes under the Criminal Act, is to delete such aggravated elements, and even if the general risk of the habition of an act of violence, which covers the crimes listed in each subparagraph of the same paragraph, is considered as a mark of the aggravated elements, it shall be deemed that the previous measure that uniformly requires the aggravated punishment is unfair even though the circumstances leading to the crime of individual crimes, specific form of act, and the degree of infringement of legal interests, etc. are diverse.

Therefore, since Article 1(2) of the Criminal Act constitutes “when an act does not constitute a crime due to a change in the law after the crime or a punishment is light compared to the former law,” the new law should be applied in accordance with the said provision (see, e.g., Supreme Court Decisions 2009Do12930, Mar. 11, 2010; 2013Do4862, Jul. 11, 2013; 2013Do101, Jul. 11, 2013).

Therefore, the judgment of the court below that found the defendant guilty of this part of the facts charged by applying the provisions of the former Punishment of Violences Act can no longer be maintained without determining the defendant's grounds of appeal.

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

A. The part on the part on the part of the victim non-indicted 1's indecent act by force

Article 92-2 of the former Military Criminal Act (amended by Act No. 11734, Apr. 5, 2013; hereinafter the same) provides for the crimes of indecent act by military personnel, etc. under Article 92-2, and Article 92-8 provides for the crimes of indecent act by military personnel, etc. as crimes subject to victim's complaint under Article 92-8 of the same Act. The Military Criminal Act amended by Act No. 11734, Apr. 5, 2013, deleted Article 92-8, which is a provision on crimes subject to victim's complaint, and Article 2 of the Addenda of the same Act provides that "the former Article 92 and Articles 92-2 through 92-4, which were committed before the enforcement of this Act, shall apply to crimes subject to victim's complaint." Therefore, the crime of indecent act by military personnel, etc. committed before June 19, 20

The crime of indecent act by compulsion by military personnel, etc. under Article 92-2 of the former Military Criminal Act constitutes a crime of indecent act by compulsion under Article 2(1)3 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012; hereinafter “former Sexual Crimes Punishment Act”), which constitutes a crime of indecent act by compulsion under Article 298 of the Criminal Act under Article 2(1)3 of the same Act and constitutes “a crime subject to aggravated punishment under other Acts” under Article 2(2) of the same Act and constitutes a sexual crime subject to the aforementioned special Act (see, e.g., Supreme Court Decision 2014Do731, Dec.

Article 18(1) main text of the former Sexual Violence Punishment Act (hereinafter “Special Provision”) provides that “one year from the date on which an offender becomes aware of a crime subject to victim’s complaint during a sexual crime, notwithstanding Article 230(1) of the Criminal Procedure Act.” The Special Provision was wholly amended by Act No. 19(1) and was deleted by Act No. 11729, Apr. 5, 2013 (hereinafter “Revised Sexual Violence Punishment Act”). The Act on the Punishment of Sexual Violence, which was amended by Act No. 11729, was enforced June 19, 2013.

The amended Sexual Violence Punishment Act did not provide for transitional provisions on the application of the Special Provision during the period of filing a complaint against a sexual crime subject to victim's complaint, which was committed before the enforcement date.

Article 306 of the former Criminal Act (amended by Act No. 11574, Dec. 18, 2012; Act No. 11574, Jun. 19, 2013; hereinafter “former Criminal Act”) provides that a crime of indecent act by compulsion as prescribed in Article 298 of the former Criminal Act was subject to a victim’s complaint, but was deleted by the said amendment. Article 2 of the Addenda of the said amended Criminal Act provides that “The provisions of Article 306 of the former Criminal Act shall apply from the first crime committed after the enforcement of the said amended Act.” As such, deletion of Article 306 of the former Criminal Act was intended to resolve the problem of punishment for sexual crimes due to a crime subject to a victim’s complaint, and it was reasonable to view the Special Provision as a crime prior to the enforcement date of the Act on the Punishment of Sexual Crimes, in view of the background leading up to the deletion of the Special Provision and the purport of the Special Provision prior to the enactment date of the Act.

The crime of indecent act by force against the victim non-indicted 1 among the facts charged in the instant case constitutes a crime subject to prosecution under Article 2 of the Military Criminal Act (Act No. 11734, Jun. 19, 2013) and Article 92-8 of the former Military Criminal Act, since each of the crimes committed by force by force against the victim non-indicted 1 among the facts charged in the instant case was first patroler on May 2013, it constitutes a crime subject to prosecution under Article 92-2 of the Military Criminal Act. The period for filing a complaint is one year from the

According to the records, the victim Nonindicted 1 was aware of the offender on May 1, 2013, the date and time of the crime indicated in this part of the facts charged, and the victim Nonindicted 1 filed a complaint on June 10, 2014, which has passed since then one year thereafter. Examining these facts in light of the legal principles as seen earlier, the victim Nonindicted 1’s complaint is deemed to have been filed subsequent to the expiration of the period of filing the complaint, and this part of the indictment also constitutes a case where the procedure for filing the complaint is null and void due to the violation of the provisions of the law.

Nevertheless, the lower court found the Defendant guilty of this part of the charges on the premise that the indictment was lawful. In so determining, the lower court erred by misapprehending the legal doctrine on the period of filing a complaint against the crime of indecent act by military personnel, etc. under the Military Criminal Act, thereby affecting the conclusion

B. The part on the part on the part of each soldier's indecent act against the victim Nonindicted 2 and Nonindicted 3

According to the records, this part of the facts charged reveals that the date of the crime of indecent act by force against the victim non-indicted 2 was around June 2013, and that the date of the crime of indecent act by force against the victim non-indicted 3 was stated as the police officer on February 2, 2013 or the early June 10, 2014, and that the above victims filed a complaint on June 10, 2014. Examining these facts in light of the legal principles as seen earlier, the issue of whether each of the facts charged against the victim non-indicted 2 and non-indicted 3 constitutes a crime subject to victim's complaint depends on whether each of the facts charged against the victim is prior to or after June 19, 2013, the enforcement date of the amended Military Criminal Act. In such cases, the court below should have the prosecutor clarify the date of each of the facts charged against the victim non-indicted 2 and non-indicted 3, and should have determined whether the above victims' complaint satisfies the requirements for prosecution.

Nevertheless, without examining the above circumstances, the lower court found the Defendant guilty of this part of the facts charged. In so determining, the lower court erred by misapprehending the legal doctrine on complaint of an offense subject to victim’s complaint, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

C. The part on the indecent act by force against the victim Nonindicted 4, Nonindicted 5, and Nonindicted 6 by each soldier, etc.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court is justifiable to have found the Defendant guilty of this part of the charges. In so determining, contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine

D. The part on the charge of the abuse of power

Cruel acts stipulated in Article 62 of the Military Criminal Act refer to cases where a person, who has abused authority or exercised power, suffers from difficult mental or physical pain. In such cases, whether a person constitutes cruel acts should be determined by examining specific circumstances, such as the status of the offender and the victim, the situation at issue, the purpose of the act, and the details and result leading to the act (see Supreme Court Decision 2008Do222, May 29, 2008, etc.).

The lower court determined that the Defendant’s act of drinking a Cheongyang to the victims, and the Defendant’s act stated in the facts charged as to the Defendant’s act of having saved the victims, constitutes a cruel act as an act of causing an difficult mental or physical pain to the victims.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s aforementioned determination is in accordance with the legal doctrine as seen earlier, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on harsh treatment as stipulated in Article 62

E. Part concerning the duty to submit personal information

Article 42(1) and Article 43(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes provide that a person who has become final and conclusive due to a sex offense subject to registration shall submit personal information to the head of the competent police office within 30 days from the date the person subject to registration becomes final and conclusive, and Article 42(2) provides that where a court declares a conviction due to a sex offense subject to registration, it shall inform the person subject to registration that he/she should submit the fact that he/she is a person subject to registration and that he/she should submit personal information. Therefore, the duty to submit personal information of a person subject to registration is naturally generated pursuant to the provisions of the Sexual Violence Punishment Act if a judgment of conviction is final and conclusive due to a sex offense subject to registration is not imposed separately by the court, and the notification of the duty to submit personal information by the court which has declared the conviction is only meaningful to inform the person subject to registration that he/she should submit personal information, and the grounds for appeal disputing errors related to the court's notification of personal information shall not affect the judgment and shall not be legitimate grounds for appeal (see Supreme Court Decision 2013Do14.

Therefore, the grounds of appeal, such as that there was error in the lower court’s judgment regarding the Defendant’s notification of obligation to submit personal information, is with respect to matters that do not affect the conclusion of the judgment,

3. Scope of reversal

As seen above, the guilty part of the judgment of the court below is reversed in the part of the crime of violation of the Punishment of Violences, etc. Act (a collective assault, a deadly weapon, etc.), the part of the crime of violation of the Punishment of Violences, etc. Act (Habitual assault), and the part of the crime of indecent act by force against the victim, Nonindicted 1, 2, and 3, and the part of the crime of indecent act by force against the military personnel, etc. on the ground that the remaining guilty part of the judgment of the court below was concurrently related to

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the defendant, the part of the judgment below's conviction is reversed, and this part of 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

Justices Kwon Soon-il (Presiding Justice)