Open Decision Ledger · Criminal & investigative procedure
Only-defendant appeal and a longer disabled-welfare-facility job ban
Supreme Court, Oct. 17, 2019, 2019Do11728 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 강제추행
Official text on the National Law Information Center
Question
When only the defendant appealed, did the appellate court breach the prohibition on reformatio in pejus by ordering, under Article 59-3(1) of the amended Welfare of Disabled Persons Act, a three-year employment restriction on disabled welfare facilities where the first-instance judgment, had it stood final, would have limited that restriction to one year?
Holding
Only the defendant had appealed, so Article 368 of the Criminal Procedure Act barred a heavier sentence. The employment restriction order is a security measure rather than punishment itself, but it restricts the freedom to choose an occupation in substance, and whether the sentence was made heavier is judged against the whole order in substance rather than by comparing individual elements. Had the first-instance judgment stood final, Article 4 and Article 3(1)(iii) of the supplementary provisions would have limited the restriction on disabled welfare facilities to one year, so the three-year order was disadvantageous and could not stand; the Court found a misreading of that principle and reversed.
Points at issue, verbatim
아동·청소년 관련기관 등과 장애인복지시설에 각 3년간의 취업제한 명령을 선고한 사안에서, 원심의 판단에 불이익변경금지원칙에 관한 법리오해의 위법이 있다고 한 사례
Unofficial English translation
in a case where orders restricting employment in children and youth-related institutions, etc. and in welfare facilities for persons with disabilities, each for three years, were pronounced, it was held that the judgment of the court below was erroneous in misapprehension of the legal principles concerning the principle prohibiting changes to the defendant's disadvantage
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 인천지방법원 본원 합의부에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the Incheon District Court (principal seat).
Form of the test
Elements stated Stated in the decision
이때 그 형이 피고인에게 불이익하게 변경되었는지 여부에 관한 판단은 형법상 형의 경중을 기준으로 하되 이를 개별적·형식적으로 고찰할 것이 아니라 주문 전체를 고려하여 피고인에게 실질적으로 불이익한지 아닌지를 보아 판단하여야 한다
Unofficial English translation
At this time, whether the sentence has been changed to the defendant's disadvantage shall be determined on the basis of the severity of the sentence under the Criminal Act, but this shall not be examined individually and formally; rather, the determination shall be made by considering the order in its entirety and observing whether it is substantially disadvantageous to the defendant
Factors
- 2018. 12. 11. 법률 제15904호로 개정된 장애인복지법의 시행 전에 성범죄를 범한 피고인에 대하여
- 이에 대하여 피고인만 항소하였는데
- 개정법 시행일 이후에 판결을 선고한 원심이 개정법 부칙 제2조와 개정법 제59조의3 제1항에 따라 판결 선고와 동시에 취업제한 명령을 선고하여야 한다는 이유로 제1심판결을 직권으로 파기하고
- 유죄를 인정하면서 제1심과 동일한 형(벌금 200만 원, 40시간의 성폭력 치료프로그램 이수명령)과 함께 아동·청소년 관련기관 등과 장애인복지시설에 각 3년간의 취업제한 명령을 선고한 사안에서
Unofficial English translation
• with regard to a defendant who committed a sex crime before the enforcement of the Act on the Welfare of Persons with Disabilities as amended by Act No. 15904 on December 11, 2018,
• only the defendant appealed therefrom, but
• the court below, which rendered judgment after the effective date of the amended Act, reversed the judgment of the court of first instance ex officio on the ground that an order restricting employment must be pronounced at the time of the pronouncement of judgment in accordance with Article 2 of the Addendum to the amended Act and Article 59-3 (1) of the amended Act, and
• while finding the defendant guilty, pronounced the same sentence as that of the court of first instance (a fine of 2,000,000 won and an order to complete a sexual violence treatment program for 40 hours) together with orders restricting employment in children and youth-related institutions, etc. and in welfare facilities for persons with disabilities, each for three years, in which case
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2012. 9. 27. 선고 2012도8736 판결 등 참조
Unofficial English translation
See, e.g., Supreme Court Decision 2012Do8736 decided September 27, 2012
Decisions referred to
[1] 대법원 2012. 9. 27. 선고 2012도8736 판결, 대법원 2018. 10. 4. 선고 2016도15961 판결(공2018하, 2140)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
In a case where both the prosecution and the defendant appealed, up to what period may the appellate court set the employment restriction on disabled welfare facilities under the supplementary provisions?
The remand judgment, once it fixes the disability-welfare-facility restriction again on the defendant's appeal, will show how the one-year yardstick operates in practice. Any amendment to Article 59-3(1) of the Welfare of Disabled Persons Act or to its supplementary provisions, or a later Supreme Court decision on the effect of a security measure under Article 368 of the Criminal Procedure Act, calls for a fresh reading.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
The primary reading presents the test as a requirement statement for judging whether a sentence became heavier in substance, while the independent reading treats it as applied to these facts. The reasoning contains both, so the emphasis differs.
원심의 판단에 불이익변경금지원칙에 관한 법리오해의 위법이 있다고 한 사례Axis 8 (Open question and revisit condition): Primary “In a case where both the prosecution and the defendant appealed, up to what period may the appellate court set the employment restriction on disabled welfare facilities under the supplementary provisions?” vs Independent “How should substantive disadvantage be assessed if the appellate court reduces the principal punishment while extending an employment restriction?”
The primary reading asks up to what period the employment restriction may be set when both the prosecution and the defendant appeal, while the independent reading asks how to assess substantive disadvantage when the principal punishment is reduced and the restriction is extended.
아동·청소년 관련기관 등과 장애인복지시설에 각 3년간의 취업제한 명령을 선고한 사안에서, 원심의 판단에 불이익변경금지원칙에 관한 법리오해의 위법이 있다고 한 사례Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Incheon District Court, in its judgment of 19 July 2019 (2018No3674), held that under Article 2 of the supplementary provisions and Article 59-3(1) of the amended Act an employment restriction order had to be pronounced together with the judgment, and so reversed the first-instance judgment of 10 October 2018 ex officio. It found the forcible molestation proved, imposed the same sentence of a KRW 2 million fine and 40 hours of a sexual violence treatment programme, and added three-year employment restriction orders for child and adolescent related institutions and for disabled welfare facilities.
Supreme Court standard: The Supreme Court found no error in the finding of forcible molestation, but held that the court below had misread the prohibition on reformatio in pejus. Compared with the outcome had the first-instance judgment stood final, in which Article 4 and Article 3(1) of the supplementary provisions would have limited the disability-welfare-facility restriction to one year, an order beyond one year was disadvantageous and impermissible. Because the employment restriction order is a subsidiary measure pronounced with the judgment, the whole criminal part had to be reversed, and the case was remanded to the collegiate panel of the Incheon District Court on the unanimous opinion of the Justices.
Distinguishing conditions
- A case in which the prosecution also appealed, since Article 368 of the Criminal Procedure Act bars a heavier sentence only where the defendant alone appealed.
- A case in which the disability-welfare-facility restriction carried by the first-instance judgment, had it become final, would not be shorter than the period the appellate court imposed.
- A case in which the former provision applied because it was more favourable to the defendant under Article 3(1) of the supplementary provisions, since the comparison then runs on the former provision's period.
Record verification notes
Set out first-instance and appellate orders side by side and ask whether only the defendant appealed, since that is the trigger for the prohibition. Then work out the period the disability-welfare-facility restriction would have carried had the first-instance judgment stood final, applying Article 4 and Article 3(1) of the supplementary provisions to the confirmed principal sentence, and compare the two orders as a whole in substance, not item by item. Keep the conviction out of the comparison, since the comparison is of the sentence as a whole and does not turn on the finding of guilt.
From the official text
Points at issue
[1] 피고인만이 항소한 사건에서 불이익변경 여부의 판단 기준과 방법 / 장애인복지법 제59조의3 제1항에서 정한 ‘취업제한 명령’의 성격(=보안처분) [2] 2018. 12. 11. 법률 제15904호로 개정된 장애인복지법의 시행 전에 성범죄를 범한 피고인에 대하여, 제1심이 개정법 시행일 이전에 유죄를 인정하여 벌금 200만 원과 40시간의 성폭력 치료프로그램 이수명령, 아동·청소년 관련기관 등에 3년간 취업제한 명령을 선고하였고, 이에 대하여 피고인만 항소하였는데, 개정법 시행일 이후에 판결을 선고한 원심이 개정법 부칙 제2조와 개정법 제59조의3 제1항에 따라 판결 선고와 동시에 취업제한 명령을 선고하여야 한다는 이유로 제1심판결을 직권으로 파기하고 유죄를 인정하면서 제1심과 동일한 형(벌금 200만 원, 40시간의 성폭력 치료프로그램 이수명령)과 함께 아동·청소년 관련기관 등과 장애인복지시설에 각 3년간의 취업제한 명령을 선고한 사안에서, 원심의 판단에 불이익변경금지원칙에 관한 법리오해의 위법이 있다고 한 사례
Unofficial English translation
[1] In a case where only the defendant appealed, the criteria and method for determining whether there is a change to the defendant's disadvantage / the nature of the 'order restricting employment' provided in Article 59-3 (1) of the Act on the Welfare of Persons with Disabilities (= security measure) [2] A case where, with regard to a defendant who committed a sex crime before the enforcement of the Act on the Welfare of Persons with Disabilities as amended by Act No. 15904 on December 11, 2018, the court of first instance, prior to the effective date of the amended Act, found the defendant guilty and pronounced a fine of 2,000,000 won, an order to complete a sexual violence treatment program for 40 hours, and an order restricting employment in children and youth-related institutions, etc. for three years, and only the defendant appealed therefrom, but the court below, which rendered judgment after the effective date of the amended Act, reversed the judgment of the court of first instance ex officio on the ground that an order restricting employment must be pronounced at the time of the pronouncement of judgment in accordance with Article 2 of the Addendum to the amended Act and Article 59-3 (1) of the amended Act, and, while finding the defendant guilty, pronounced the same sentence as that of the court of first instance (a fine of 2,000,000 won and an order to complete a sexual violence treatment program for 40 hours) together with orders restricting employment in children and youth-related institutions, etc. and in welfare facilities for persons with disabilities, each for three years, in which case it was held that the judgment of the court below was erroneous in misapprehension of the legal principles concerning the principle prohibiting changes to the defendant's disadvantage
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 인천지방법원 본원 합의부에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the Incheon District Court (principal seat).
Provisions referred to
[1] 형사소송법 제368조 [2] 형법 제298조, 구 장애인복지법(2018. 12. 11. 법률 제15904호로 개정되기 전의 것) 제59조의3 제1항, 장애인복지법(2018. 12. 11. 법률 제15904호로 개정된 것) 제59조의3 제1항, 부칙(2018. 12. 11.) 제1조, 제2조, 제3조 제1항 제3호, 제4조, 형사소송법 제368조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
Back to the ledger