[Defendant] Defendant
[Appellant] Defendant
[Defense Counsel] Attorney Kim Jeong-hwan and one other
[Lower Court Judgment] Suwon High Court Decision 2021No680, 2022No332 dated August 12, 2022
[Order]
The judgment below is reversed, and the case is remanded to the Suwon High Court.
[Reasoning]
The grounds for appeal are examined.
1. Summary of the portion of the facts charged concerning the violation of the Act on the Protection of Children and Youth against Sex Offenses (hereinafter “the Juvenile Sex Protection Act”) (Habitual Production, Distribution, etc. of Exploitative Materials)
No person shall produce sexually exploitative materials of children or youth.
The Defendant, habitually, from February 28, 2015 to February 10, 2021, caused 124 victims who were children or youth to take photographs exposing all or part of their bodies, thereby producing a total of 1,929 photographs or videos constituting sexually exploitative materials of children or youth.
2. Judgment of the court below
The court below, for the reasons stated in its judgment, applied Article 11(7) and (1) of the Juvenile Sex Protection Act comprehensively to this portion of the facts charged, which had been amended through the amendment of the bill of indictment permitted in the lower court, and found the Defendant guilty on all counts.
3. Judgment of the Supreme Court
A. Article 11(1) of the Juvenile Sex Protection Act contains a provision punishing the act of producing sexually exploitative materials of children or youth. When the Juvenile Sex Protection Act was amended by Act No. 17338 on June 2, 2020, Article 11(7), which punishes the habitual production of sexually exploitative materials of children or youth, was newly established, and the Addendum provided that the amended Act shall take effect on the date of its promulgation.
Where an existing penal provision concerning a comprehensive single crime (包括一罪) is not merely amended in its wording or the severity of punishment, but rather where an act that was not previously criminal is newly made subject to punishment as a comprehensive single crime through the creation of a new constituent element, the newly created provision on the comprehensive single crime cannot be applied to punish acts committed before the new provision took effect (Article 1(1) of the Criminal Act (형법)). This applies equally where the newly created penal provision constitutes the elements for punishing habitual offenses (see Supreme Court Decision 2015Do15669, decided January 28, 2016).
An amendment to the bill of indictment is permitted only within the scope in which the identity of the facts charged is recognized, and where a motion to amend the bill of indictment is filed seeking to add criminal facts that do not have identity with the existing facts charged, the court must dismiss such motion for amendment (Article 298(1) of the Criminal Procedure Act (형사소송법)). The identity of the facts charged is maintained so long as the underlying social factual relationship is fundamentally the same; and in determining the identity of such basic factual relationship, the court must bear in mind the legal function served by the identity of the facts, base its determination on the defendant’s conduct and the underlying social factual relationship, and also take normative elements into consideration (see Supreme Court en banc Decision 93Do2080, decided March 22, 1994; Supreme Court Decision 2022Do6993, decided September 7, 2022, etc.).
B. According to the reasoning of the judgment below and the records, the following facts may be found.
1) The prosecutor instituted prosecution regarding the violation of the Juvenile Sex Protection Act (Habitual Production, Distribution, etc. of Exploitative Materials) portion, charging that “the Defendant, habitually, from November 3, 2020 to February 10, 2021, caused 3 victims who were children or youth to take photographs exposing all or part of their bodies, thereby producing a total of 19 photographs or videos constituting sexually exploitative materials of children or youth.”
2) In the court below, the prosecutor filed a motion for permission to amend the bill of indictment regarding the violation of the Juvenile Sex Protection Act (Habitual Production, Distribution, etc. of Exploitative Materials) portion, seeking to add the facts charged that “the Defendant, habitually, from February 28, 2015 to January 21, 2021, caused 121 victims who were children or youth to take photographs exposing all or part of their bodies, thereby producing a total of 1,910 photographs or videos constituting sexually exploitative materials of children or youth,” and the court below granted this motion and found the Defendant guilty on all counts.
C. Examining the above factual relationship in light of the legal principles set forth above, the judgment of the court below cannot be upheld, for the following reasons.
1) With respect to the portion of these facts charged concerning the violation of the Juvenile Sex Protection Act due to the production of sexually exploitative materials of children or youth committed from February 28, 2015 to May 31, 2020, before the above amended provision took effect, such portion cannot be punished as the crime of violation of the Juvenile Sex Protection Act (Habitual Production, Distribution, etc. of Exploitative Materials) by applying the above amended provision, and can only be punished as the crime of violation of the Juvenile Sex Protection Act (Production, Distribution, etc. of Exploitative Materials) based on the law in effect at the time of the act.
2) Since the portion from February 28, 2015 to May 31, 2020 cannot be punished as the crime of violation of the Juvenile Sex Protection Act (Habitual Production, Distribution, etc. of Exploitative Materials), it does not stand in a relationship of a comprehensive single crime with the subsequent portion, which is punished as the crime of violation of the Juvenile Sex Protection Act (Habitual Production, Distribution, etc. of Exploitative Materials), but rather stands in a relationship of substantive concurrence of crimes (실체적 경합관계). However, since the portion in a relationship of substantive concurrence cannot be deemed to have the same basic factual relationship as the original facts charged, the amendment to the bill of indictment adding the portion from February 28, 2015 to May 31, 2020 could not be permitted, and does not become subject to adjudication in this case [furthermore, since the portion of the facts charged in this case concerning the violation of the Child Welfare Act (아동복지법) (Coercion, Mediation, Sexual Harassment, etc. of Indecent Acts against a Child) stands in an imaginative concurrence relationship (상상적 경합관계) with the portion concerning the violation of the Juvenile Sex Protection Act (Production, Distribution, etc. of Exploitative Materials) committed on the same days, the amendment to the bill of indictment adding the portion from February 28, 2015 to May 31, 2020 as to this portion likewise could not be permitted, and does not become subject to adjudication in this case].
3) Accordingly, the court below should not have granted the prosecutor’s motion for permission to amend the bill of indictment as filed; rather, it should have granted permission only if a new motion for permission to amend the bill of indictment, adding solely the portion after the amended provision took effect, was filed (the portion before the amended provision took effect can only be addressed by way of an additional indictment).
D. Nevertheless, the court below, on the premise that this portion of the facts charged constituted a comprehensive single crime falling entirely under habitual offenses, granted the prosecutor’s motion for permission to amend the bill of indictment as filed, and then, applying Article 11(7) and (1) of the Juvenile Sex Protection Act comprehensively, found the Defendant guilty on all counts. Such judgment of the court below contains an error that misapprehends the legal principles concerning habitual offenses, the application of Article 1(1) of the Criminal Act, and the amendment of the bill of indictment, thereby affecting the judgment. The ground of appeal pointing this out is with merit.
4. Scope of reversal
For the reasons stated above, there exists a ground for reversing the judgment below, and since the court below imposed a single sentence on the ground that the facts charged in this case stood in a relationship of substantive concurrence or imaginative concurrence, the judgment below must be reversed in its entirety.
5. Conclusion
Therefore, without examining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination. This judgment is rendered with the unanimous concurrence of the Justices participating in the decision, as set forth in the Order.
Justice Roh Tae-ak (Presiding Justice), Park Jung-hwa (Justice in Charge), Kim Seon-su, Oh Kyung-mi