국외이송약취
The prosecutor's appeal is dismissed.
1. The summary of the grounds for appeal is as follows: (a) as long as the Defendant took over the victim who is only five years of age at the time to G as he did so, and left the U.S. on the road, this ought to be deemed as having taken over the victim by means of de facto force.
Even if it is difficult to judge that the Defendant’s act of force was to be regarded as exercising “illegal force” to the extent that the Defendant’s act would be considered as abduction, the Defendant’s act constitutes “inducing” the victim who is only five years of age by deceiving E and G as a protective custody holder, and thus, the Defendant should be found guilty of the crime of
Nevertheless, the lower court acquitted the Defendant of the instant facts charged by misapprehending the facts or by misapprehending the legal doctrine.
2. Determination
A. “Kidnapping” as a constituent element under Articles 287 and 288 of the Criminal Act refers to the act of kidnapping a victim from his/her free living relationship against his/her will by means of violence, intimidation, or de facto force and moving the victim to his/her or a third party under de facto control. On the other hand, “inducing” as a constituent element under the same Article refers to the act of escaping the victim from his/her free living relationship or protection relationship, and moving the victim under his/her or a third party’s de facto control (see, e.g., Supreme Court Decisions 2009Do3816, Jul. 9, 2009; 95Do2980, Feb. 27, 1996). Meanwhile, according to the evidence duly adopted by the court below, the Defendant’s act of assault, intimidation, deception, cruel, etc. as a means of abduction inducement is not necessarily required.