아동·청소년의 성보호에 관한 법률 제18조의 헌법합치적 해석에 관한 검토 - 서울고등법원 2023. 4. 25. 선고 2022노3067 판결 -

Article 7(5) and (3) of the Act on Special Cases Concerning the Punishment of Sexual Crimes (“Sexual Violence Punishment Act”) stipulate that a person who commits indecent acts by force against a minor under the age of 13 shall be punished by imprisonment for a limited term of at least five years. Article 18 of the Act on the Protection of Children and Youth Against Sex Offenses (“Youth Sexual Protection Act”) provides that if a sexual crime is committed against a child or youth under one's protection or supervision, the punishment shall be increased by up to 1/2 of that prescribed for such offense. There are several ways to interpret the provision in the Youth Sexual Protection Act regarding “increase of up to 1/2 of the prescribed punishment.” Options include: aggravating both the maximum and minimum terms stipulated by the Sexual Violence Punishment Act; aggravating only the minimum; or aggravating only the maximum. If the provision is interpreted to mean that even the minimum term in the Sexual Violence Punishment Act should be aggravated under Article 18 of the Youth Sexual Protection Act, the defendant would have to be sentenced to a minimum of seven years and six months’ imprisonment, so even with discretionary mitigation, a sentence of at least three years and nine months would have to be imposed. The decision in question found that interpreting the Youth Sexual Protection Act to apply aggravation to the minimum term could violate the principle of proportionality between liability and punishment. Accordingly, the court interpreted the aggravated punishment under the Youth Sexual Protection Act as applying only to the maximum term stipulated by the Sexual Violence Punishment Act and therefore sentenced the defendant to three years in prison with a five-year suspended sentence. In the case at hand, where the defendant committed the offense of indecent act by force, the concepts of “force” and “indecent act” can manifest in a variety of ways. The degree and nature of “protection or supervision” required under the Youth Sexual Protection Act will also differ between cases. If the Act were interpreted as aggravating the minimum term as well, even minor offenses would require a minimum actual prison sentence of three years and nine months, making it extremely difficult to tailor appropriate penalties to the individual level of liability and illegality of each case. When statutes can reasonably be interpreted in several ways—some of which are constitutional and others not—the principle of pro-constitutional interpretation requires choosing the interpretation that is consistent with the constitution. As discussed above, interpreting Article 18 of the Youth Sexual Protection Act so as to aggravate the minimum term specified in Article 7(5), (3) of the Sexual Violence Punishment Act would likely violate the principle of proportionality between punishment and liability; thus, the court was correct to adopt a constitutionally consistent interpretation. However, even when interpreting statutes in a way that is consistent with the constitution, there are limits: such interpretations must not contradict the text of the statute or distort its legislative purpose. The decision in question does not appear to exceed such limits. Nevertheless, one drawback is that such an interpretation weakens the intent of the Youth Sexual Protection Act to strictly punish sexual crimes against children and youth under protection or supervision. This issue, however, should be resolved through courts’ appropriate exercise of sentencing discretion in individual cases.