[1] The legal nature of "electronic monitoring system" under the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (=the type of security measures)

[2] Meaning of “where a sexual crime is committed against a person under the age of 16” as one of the requirements for requesting an attachment order of an electronic device under Article 5(1)4 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, and in such a case, whether the person requesting an attachment order should be aware of the fact that the person is under the age of 16 (negative)

[3] The case affirming the court below's order to attach an electronic tracking device, in case where the defendant was requested to attach an attachment order under Article 5 (1) 4 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, where the crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse was committed by indecent act by force or by force despite the victim's awareness that he was "juvenile"

[1] The electronic monitoring system for sexual offenders under the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders is a kind of security measure aimed at protecting citizens from sexual crimes by taking an additional measure to track their behaviors for the prevention of recidivism and re-socialization through character and behavior correction. In full view of the purpose and character of the electronic monitoring system and the provisions and purport of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, the essence of the electronic monitoring system is distinguishable from the punishment, which is an ex post facto measure to pursue the responsibility of a person who committed the crime.

[2] "A sexual crime committed against a person under the age of 16" under Article 5 (1) 4 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders as one of the requirements for requesting an order to attach an electronic device against a person who is likely to recommit a sex crime means that the victim of the sexual crime committed by the person requesting the order to attach an electronic device is under the age of 16, and further, it does not mean that the victim of the sexual crime committed by the person requesting the order to attach an electronic device is under the age of 16.

[3] In a case where an attachment order is requested under Article 5(1)4 of the Act on the Protection of Children and Juveniles against Sexual Abuse, where the defendant, who was found to have sexual intercourse with the victim by indecent act or by force despite the victim's knowledge of "juvenile", the case affirming the court below's order to attach an electronic tracking device on the ground that the victims of sexual crimes are 15 years of age and the defendant's risk of recommitting sexual crimes is recognized

[1] Articles 1, 5, and 9 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders / [2] Articles 5(1)4 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders / [3] Articles 297 and 298 of the Criminal Act; Articles 7(1), (3), and (5) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Articles 5(1)4 and 9(1)2 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders

[1] Supreme Court Decision 2009Do1947, 2009Do5 Decided May 14, 2009 (Gong2009Sang, 954) Supreme Court Decision 2009Do6061, 2009 Jeondo13 Decided September 10, 2009 (Gong2009Ha, 1726), Supreme Court Decision 2010Do7955, 2010Do466 Decided November 11, 2010

Defendant 1

Defendant 2

Defendants

Attorney Kim Jae-sik

Seoul High Court Decision 2011No838, 2011 Jeonno103 decided April 28, 2011

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

A. Part of the defendant's case

According to the reasoning of the judgment below, the court below found Defendant 1 guilty of all of the crimes of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.) in the judgment of the victims, on the grounds as stated in its reasoning.

In light of the evidence duly admitted, the above judgment of the court below is just and acceptable, and there is no violation of law of free evaluation of evidence in violation of logical and empirical rules.

Meanwhile, according to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed, and thus, in this case where a more minor sentence has been imposed on Defendant 1, the argument that the amount of punishment is unreasonable

B. Part on attachment order

The electronic monitoring system for a sexual offender under the Act on the Attachment of Electronic Monitoring, etc. of Specific Criminal Offenders is a kind of security measure aimed at protecting citizens from a sexual crime by taking an additional measure to track his/her behavior to re-socialize by preventing recidivism and correcting character and conduct. In full view of the purpose and character of the electronic monitoring system and the provisions and purport of the above Act on the operation thereof, the electronic monitoring system differs from a punishment, which is an ex post facto measure to pursue his/her responsibility for the purpose of responding to the offender (see Supreme Court Decisions 2009Do1947, 209Do5, May 14, 2009; 2009Do601, 2009Do13, Sept. 10, 2009; 2009Do6061, 2009Do13, etc.). Therefore, the victim’s request for an attachment order for a sexual crime under the age of 16 years is no more than the requirement of the victim’s request for attachment order for a sexual crime.

The lower court upheld the first instance judgment that issued an attachment order on the ground that the victims of sexual crimes committed by Defendant 1 were both 15 years of age and Defendant 1 is likely to recommit a sexual crime.

Examining the aforementioned legal principles and the evidence duly admitted, the lower court’s aforementioned measures are justifiable, and this part of the ground of appeal is without merit.

2. As to Defendant 2’s ground of appeal

Examining the evidence duly adopted by the first instance court, which maintained the reasoning of the lower judgment, the lower court’s determination that Defendant 2 could be recognized of the facts charged on the grounds stated in its reasoning is just and acceptable, and there is no violation of the principle of free evaluation of evidence in violation of logical and empirical rules.

3. Conclusion

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

Justices Park Si-hwan (Presiding Justice)