특정범죄자에 대한 위치추적 전자장치 부착 등에 관한 법률 부칙 제2조 제1항 결정에 대한 검토 - 헌법재판소 2012. 12. 27. 2010헌가82, 2011헌바393(병합) 전원재판부 결정 -

The subject clause is the criminal special provision which is related sexual violence. Therefore the elements of a crime and the contents of sanction should be more clear than those of the general laws. Nevertheless, because it, even a legal experts, is complicated to understand the history and content of the Reform Act and moreover harder to find the subject clause, there is a choice to be in violation of the rule of clarity based the principle of ‘nulla poena sine lege’. The attachment of electronic device results the restriction of fundamental rights of the attached like personal rights, privacy rights etc. But, it doesn’t have an intention of retribution or warning of punishment but has an intention of main purpose which suppresses crime’s impulse by psychological pressure his crime to be founded and corrects personality and conduct of the attached according to the continuous occurrence of brutal crime of sexual violence like rape and murder etc. And it doesn’t aggressively cause legal interests deprivation because it doesn’t directly control behavior itself of the attached. On the other hand, the attached can receive counsel remedy,guidance and support of probation officer and attachment order of electronic device can be released temporarily if there is no the dangerousness of recidivism . Considering the purpose and intention,operating methods, effects of these attachment Act of electronic devices, the attachment of electronic devices should be seen as security-measure. Therefore, the principles of punishmentnonretroactivity is not applied in the attachment of electronic devices. Though the subject clause does not violate the principles of punishment-nonretroactivity, the principle of proportion, the constitutional limit of security-measure, should be observed. The subject clause recognizes the legitimacy of purpose, the correction of personality and conduct of the attached and the prevention of recidivism of sexual violence, and the suitability of method in that recidivism rate of the attached is significantly lowered by recent survey. But it cannot help violating the principle of a minimum of damage and the principle against excessive restriction by deviating from the limits of retroactive effect that can be accepted in rule of law as true retroactive legislations to have retroactive effect not only the person of sentence but also sentence finalizer, the person who is already legal assessment and sentence for the criminal acts of the past all over and lives normal social life with family and work.