Supreme Court: Second Trial Adding 'Employment Restriction' in Sexual Crime Case Without Prosecutor's Appeal Is an Adverse Change

[Asia Economy Reporter Kim Hyung-min] The Supreme Court has ruled that a second-instance court's additional order of employment restriction, which was not imposed in the first trial, in a sexual crime case where the prosecution did not appeal, constitutes a "disadvantageous change to the defendant" and is therefore not permissible.

The Supreme Court's Third Division (Presiding Justice Noh Tae-ak) announced on the 2nd that it overturned the part of the appellate court's ruling that imposed an employment restriction order in the case of Mr. A, who was indicted for violating the Act on Special Cases Concerning the Punishment of Sexual Violence Crimes, and remanded the case to the Incheon District Court.

The court explained, "In a case where only the defendant appealed, the second trial's additional order of a three-year employment restriction at a welfare facility for the disabled constitutes a disadvantageous change to the first trial's ruling for Mr. Kwon when viewed overall and substantially, and thus is not allowed."

The principle of "prohibition of disadvantageous changes" means that in an appellate trial where only the defendant appeals against the first trial's ruling and the prosecution does not, a heavier sentence than that of the first trial cannot be imposed.

Mr. A was tried on charges of inappropriate physical contact with a woman, Ms. B, who was riding behind him on Seoul Subway Line 1 in August 2018.

The first trial found Mr. A guilty and sentenced him to four months in prison with a one-year probation, along with 120 hours of community service and 40 hours of sexual violence treatment lectures. He was also prohibited from working at child and youth-related institutions for three years.

Mr. A appealed, claiming the sentence was too harsh, but the prosecution did not appeal.

The second trial also recognized all the charges against Mr. A, consistent with the first trial.

However, it added an order prohibiting employment at welfare facilities for the disabled for three years, citing the omission of such an employment restriction order in the first trial.

This is based on the Act on Welfare of Persons with Disabilities, which has been in effect since June last year. The law stipulates that when sentencing for sexual crimes, an order must be imposed to prohibit operating or working at welfare facilities for the disabled for a certain period.

The second trial court pointed out, "The original court had a legal obligation to either impose or exempt the employment restriction order at welfare facilities for the disabled for the defendant but failed to do so, which is illegal."

This content was produced with the assistance of AI translation services.