Open Decision Ledger · Criminal & investigative procedure
Job-restriction order and the bar on a worse appeal outcome
Supreme Court, Oct. 17, 2019, 2019Do4192 (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: 성폭력범죄의처벌등에관한특례법위반(업무상위력등에의한추행)
Official text on the National Law Information Center
Question
Where only the defendant appealed a first-instance judgment for a sex crime committed before the amended Act on the Protection of Children and Adolescents from Sexual Crimes came into force, did an appellate court err by setting aside that judgment ex officio and imposing, alongside the same fine of KRW 5 million and the same 40-hour treatment programme, a three-year job-restriction order when the restriction would have lasted only one year had the first-instance judgment become final?
Holding
It did. A job-restriction order under Article 56(1) of the amended Act is a security measure, not punishment in itself, but by barring a person from operating or working for institutions concerning children and adolescents it restricts freedom of occupation in substance. So the question is whether, looking at the order as a whole, the outcome is substantially worse for the defendant; here the restriction of three years exceeded the one year that would have applied had the first-instance judgment stood, and imposing it was therefore not permissible.
Points at issue, verbatim
원심의 판단에 불이익변경금지원칙에 관한 법리오해의 잘못이 있다고 한 사례
Unofficial English translation
A case where the court held that the judgment of the court below misapprehended the legal principles concerning the principle prohibiting disadvantageous change
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 창원지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Changwon District Court.
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 disadvantage of the defendant 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, it shall be determined by taking the entire order into consideration and viewing whether it is substantively disadvantageous to the defendant or not.
Factors
- 피고인만이 항소한 사건에서 불이익변경 여부의 판단 기준과 방법
- 아동·청소년의 성보호에 관한 법률 제56조 제1항에서 정한 ‘취업제한 명령’의 성격(=보안처분)
- 2018. 1. 16. 법률 제15352호로 개정된 아동·청소년의 성보호에 관한 법률의 시행 전에 성범죄를 범한 피고인에 대하여
- 제1심이 개정법 시행일 이전에 유죄를 인정하여 벌금 500만 원과 40시간의 성폭력 치료프로그램 이수명령을 선고하였고
- 개정법 부칙 제3조와 개정법 제56조 제1항에 따라 판결 선고와 동시에 취업제한 명령을 선고하여야 한다는 이유로
Unofficial English translation
• The criteria and method for determining whether there has been a disadvantageous change in a case where only the defendant has appealed
• The nature of the "order restricting employment" prescribed in Article 56 (1) of the Act on the Protection of Children and Youth against Sexual Offenses (=security measure)
• With respect to a defendant who committed a sex offense before the enforcement of the Act on the Protection of Children and Youth against Sexual Offenses, as amended by Statute No. 15352 on January 16, 2018,
• in which the court of first instance found the defendant guilty before the effective date of the amended Act and pronounced a fine of 5 million won and an order to complete 40 hours of a sexual violence treatment program,
• on the ground that, pursuant to Article 3 of the Addenda to the amended Act and Article 56 (1) of the amended Act, an order restricting employment must be pronounced simultaneously with the pronouncement of judgment,
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
If an appellate court hearing the defendant's appeal alone shortens the principal sentence but lengthens the job-restriction order beyond what would have followed on finalisation, is the order as a whole still disadvantageous?
The remand judgment from the Changwon District Court will show how the restriction period is fixed once the bar on disadvantageous change is observed. A later decision on the totality test in Article 368 of the Criminal Procedure Act, or an amendment to Article 56 of the Act on the Protection of Children and Adolescents from Sexual Crimes or to its supplementary provisions, would call for this entry to be read again.
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”
Both readings record the burden of proof as not addressed, so the divergence on this axis appears to be a coding difference in the entries rather than a difference in what the judgment says about proof.
원심의 판단에 불이익변경금지원칙에 관한 법리오해의 잘못이 있다고 한 사례Axis 8 (Open question and revisit condition): Primary “If an appellate court hearing the defendant's appeal alone shortens the principal sentence but lengthens the job-restriction order beyond what would have followed on finalisation, is the order as a whole still disadvantageous?” vs Independent “On remand, should the defendant receive an employment restriction of one year or less, or qualify for an exception allowing no restriction?”
The primary reading asks whether the order as a whole remains disadvantageous when the principal sentence is shortened, while the independent reading asks what restriction period or exception should apply on remand.
원심의 판단에 불이익변경금지원칙에 관한 법리오해의 잘못이 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 Changwon District Court, in its judgment of 14 March 2019 (2018No1543), held that because the defendant's conduct of 11 July 2017 was a forced indecent act by means of occupational authority over a person under its protection, and because Article 3 of the supplementary provisions of the amended Act and Article 56(1) applied, a job-restriction order had to be pronounced together with the judgment delivered after the amended Act came into force. It set aside the first-instance judgment ex officio, found the charge proved, and imposed the same fine of KRW 5 million and the same 40-hour treatment programme together with a three-year job-restriction order.
Supreme Court standard: The Supreme Court found no error in the conviction, but held that the court below had misread the bar on disadvantageous change. Where the first-instance judgment would have become final with no appeal, the special provisions in Article 5 and Article 4(1)(iii)(c) of the supplementary provisions limited the restriction to one year for a fine; so a restriction longer than one year, added by the appellate court on the defendant's appeal alone, was disadvantageous and impermissible. Because the job-restriction order is an ancillary measure pronounced together with the judgment, the whole of the conviction had to be reversed and the case remanded.
Distinguishing conditions
- A case in which the job-restriction period imposed on appeal is no longer than the period that would have followed from the first-instance judgment had it become final.
- A case in which the prosecution also appealed, so that Article 368 of the Criminal Procedure Act does not bar a heavier sentence.
- A case in which no job-restriction order is pronounced at all, because the risk of reoffending is markedly low or special circumstances call for no restriction.
Record verification notes
Fix the date of the offence against the date the amended Act took effect, six months after its promulgation on 16 January 2018, since the special provisions turn on an offence committed before that date. Then list every element of the whole order on both sides, the principal sentence, the treatment programme and the restriction, and compute the restriction period that Articles 5 and 4(1)(iii)(c) of the supplementary provisions would give for a fine. Confirm as well that no party other than the defendant appealed.
From the official text
Points at issue
[1] 피고인만이 항소한 사건에서 불이익변경 여부의 판단 기준과 방법 / 아동·청소년의 성보호에 관한 법률 제56조 제1항에서 정한 ‘취업제한 명령’의 성격(=보안처분) [2] 2018. 1. 16. 법률 제15352호로 개정된 아동·청소년의 성보호에 관한 법률의 시행 전에 성범죄를 범한 피고인에 대하여, 제1심이 개정법 시행일 이전에 유죄를 인정하여 벌금 500만 원과 40시간의 성폭력 치료프로그램 이수명령을 선고하였고, 이에 대하여 피고인만 항소하였는데, 개정법 시행일 이후에 판결을 선고한 원심이 개정법 부칙 제3조와 개정법 제56조 제1항에 따라 판결 선고와 동시에 취업제한 명령을 선고하여야 한다는 이유로 제1심판결을 직권으로 파기하고 유죄를 인정하면서 제1심과 동일한 형과 함께 3년간의 취업제한 명령을 선고한 사안에서, 원심의 판단에 불이익변경금지원칙에 관한 법리오해의 잘못이 있다고 한 사례
Unofficial English translation
[1] The criteria and method for determining whether there has been a disadvantageous change in a case where only the defendant has appealed / The nature of the "order restricting employment" prescribed in Article 56 (1) of the Act on the Protection of Children and Youth against Sexual Offenses (=security measure) [2] A case where, with respect to a defendant who committed a sex offense before the enforcement of the Act on the Protection of Children and Youth against Sexual Offenses, as amended by Statute No. 15352 on January 16, 2018, the court of first instance found the defendant guilty before the effective date of the amended Act and pronounced a fine of 5 million won and an order to complete 40 hours of a sexual violence treatment program, and only the defendant appealed therefrom, and the court below, which pronounced its judgment after the effective date of the amended Act, reversed the judgment of the court of first instance ex officio on the ground that, pursuant to Article 3 of the Addenda to the amended Act and Article 56 (1) of the amended Act, an order restricting employment must be pronounced simultaneously with the pronouncement of judgment, and, while finding the defendant guilty, pronounced the same sentence as that of the court of first instance together with an order restricting employment for a period of three years, the court held that the judgment of the court below misapprehended the legal principles concerning the principle prohibiting disadvantageous change
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 창원지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Changwon District Court.
Provisions referred to
[1] 형사소송법 제368조 [2] 구 성폭력범죄의 처벌 등에 관한 특례법(2018. 10. 16. 법률 제15792호로 개정되기 전의 것) 제10조 제1항, 구 아동·청소년의 성보호에 관한 법률(2018. 1. 16. 법률 제15352호로 개정되기 전의 것) 제56조 제1항(현행 제56조 제1항, 제2항 참조), 아동·청소년의 성보호에 관한 법률 제56조 제1항, 제2항, 부칙(2018. 1. 16.) 제1조, 제3조, 제4조 제1항 제3호 (다)목, 제5조, 형사소송법 제368조
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