The purport of describing in a written request for an attachment order and applicable provisions of Acts in the written request for the attachment order; / Whether the court may apply the cause of the request for the attachment order and the legal provisions applicable to the requirements for the attachment order, if any, to the applicable provisions of Acts stated in the written request for the attachment order (affirmative with qualification)

Article 8(1) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, Article 5(1) of the Enforcement Decree of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders

Supreme Court Decision 2013Do6220, 2013 Jeondo124 Decided July 26, 2013

Defendant and the respondent for attachment order

Defendant and the respondent for attachment order

Attorney Lee Dong-hoon

Busan High Court Decision 2014No888, 2014No98 decided June 10, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. Defendant case;

Article 383 subparag. 4 of the Criminal Procedure Act provides that an appeal on the grounds of unfair sentencing shall be allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. Therefore, in this case where the defendant and the person subject to an order to attach an electronic device (hereinafter referred to as the "defendant") were sentenced to a more minor punishment, the argument that the amount of punishment is unreasonable, or that there was an error of law by misunderstanding facts that serve as the basis of sentencing or by misunderstanding legal principles

2. As to the case for which an attachment order is requested

A. According to Article 8(1) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”) and Article 5(1) of the Enforcement Decree of the Electronic Monitoring Act, a written application for an attachment order shall include the name of the crime, the facts constituting the grounds for the request, along with the facts constituting the grounds for the request. As such, the grounds for stating the grounds for the request for the attachment order and the applicable provisions of the Act are to clarify the legal assessment of the grounds for the request for the attachment order and ensure the defendant’s right of defense (see Supreme Court Decision 2013Do620, 2013Do124, Jul. 26, 2013). Thus, even if there are errors or omissions in the applicable provisions of the attachment order as stated in the written application, if the application does not disadvantage the defendant’s defense, the validity of the request for attachment order may not be affected, and the court may also apply the provisions of the Act that also meet the requirements for the attachment order.

B. The record reveals the following facts.

(1) In filing an application for an attachment order at the same time as the instant indictment, the prosecutor added the facts constituting the cause of the application for the attachment order and the applicable provisions of the Act to the indictment in accordance with Article 5(2) of the Enforcement Decree of the Electronic Device Attachment Act, instead of the written application

(2) However, the criminal name of “written indictment and written request for an attachment order” submitted by a prosecutor includes a violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) and a special robbery; the facts charged and the column for requesting an attachment order, as well as each of the facts charged by the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) against the Victim Nonindicted 1, the special robbery, and the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) against the Victim Nonindicted 2 (Rape, etc.) against the victim Nonindicted 2, and the item “the necessity for an attachment order of an electronic device” states that “the defendant has committed the above sexual crime at least twice, and is highly likely to repeat the sexual crime again.” However, the applicable provisions of the Act include Articles 8(1) and 4(1) of the Act on Special Cases Concern

(3) The first instance court deliberated on the requirements for requesting an attachment order against each of the above crimes of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, and subsequently found the Defendant guilty of all the charges and found the Defendant guilty of committing a sexual crime more than twice, and ordered the Defendant to attach an electronic device for eight years, by applying Article 5(1)3 of the Electronic Monitoring Act, to recognize the risk of recidivism.

(4) Accordingly, the Defendant and the Prosecutor appealed, and the lower court dismissed all the appeals filed by the Defendant and the Prosecutor on the part of the Defendant’s case, and applied Article 5(1)3 of the Electronic Monitoring Act as in the first instance trial, and ordered the attachment of an electronic device for 10 years, as in the first instance trial, as well as the application of the Act on the Electronic Monitoring of Electronic Devices in the first instance trial. The Defendant did not raise any objection to the application of the Act until the lower judgment is pronounced.

C. Examining the above facts in light of the legal principles as seen earlier, it is determined as follows.

Although the applicable provisions of the Electronic Monitoring Act were omitted in the “written indictment and written request for an attachment order” submitted by the prosecutor, it is sufficiently known that Article 5(1)3 of the Electronic Monitoring Act is sought according to the facts charged and the facts constituting the cause of the request for the attachment order.

In addition, the facts constituting the ground for filing a request for the attachment order of this case are crimes falling under Articles 8(1) and 4(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and the maximum statutory penalty is life imprisonment. Therefore, when the court deems that the request for attachment order of this case is well-grounded, it should issue an attachment order within the scope of “not less than 10 years and not more than 30 years” under Article 9(1)1 of

Therefore, according to the first instance judgment that applied Article 5(1)3 of the Electronic Monitoring Act, while the Defendant did not dispute the period of attachment while the prosecutor appealeds against the request for attachment order, it is difficult to deem that the lower court puts substantial disadvantage to the Defendant’s defense even if the period of attachment was newly determined by applying Article 9(1)1 of the Electronic Monitoring Act to the part of the case for which the request for attachment order was filed, while applying Article 9(1)1 of the Electronic Monitoring Act.

Ultimately, the court below’s decision that ordered the attachment of an electronic device by applying the above provisions of the Electronic Device Attachment Act, which determined the attachment period, did not err by misapprehending the legal principles on the Electronic Device Attachment Act or by violating the principle of no accusation and error, which affected the conclusion of the judgment.

3. Conclusion

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)