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red_flag_2(영문) 서울중앙지방법원 2009. 1. 16. 선고 2008고합822 판결

[성매매알선등행위의처벌에관한법률위반·알선뇌물요구][미간행]

Escopics

Defendant 1 and three others

Prosecutor

Ethiopis

Defense Counsel

Law Firm member, Attorneys Kim Jong-soo et al.

Text

Defendant 1 shall be punished by imprisonment for one year, by imprisonment for one year, by fine for 20,00,000 won, by fine for negligence for 2,00,000 won, and by imprisonment for 4 months, respectively.

When Defendant 2 and 3 fail to pay each of the above fines, each of the above defendants shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

The three-day detention days prior to the pronouncement of this judgment shall be included in the above sentence as to Defendant 1, and the above imprisonment as to Defendant 2.

However, for two years from the date this judgment became final and conclusive, the execution of each of the above punishments shall be suspended, and for Defendant 2, the execution of the above imprisonment shall be suspended.

To order Defendant 1 and 2 to provide community service for 200 hours each.

19,600,000 won shall be additionally collected from Defendant 1.

Defendant 2 and 3 shall be ordered to pay an amount equivalent to the above fines.

Criminal facts

1. Defendant 1

Although anyone is not allowed to provide a place for commercial sex acts, Defendant 1, while leasing and operating ○○ hotel located in the Gangnam-gu Seoul Metropolitan Government (number omitted), provided that around December 23:10, 2007, Defendant 1 engaged in the act of arranging commercial sex acts, etc. by providing the guest room room of the above hotel from around August 2007 to December 5, 2007 by providing the guest room of the above hotel as a place for commercial sex acts while being aware that Nonindicted 2 and Nonindicted 3, who is a female entertainment drinking, have been engaged in commercial sex acts despite being aware that he/she had been engaged in commercial sex acts.

2. Defendant 2

Although anyone is prohibited from mediating sexual traffic, Defendant 2 operated an entertainment drinking house under the trade name of “△△△△△△”, which is the ○○ hotel’s underground floor, the 1st floor, the 1st floor, and the 2nd floor as indicated in paragraph (1), and had Nonindicted 2, who was a customer of the said entertainment drinking house, present himself with Nonindicted 3, a female entertainment loan, and encourage him to provide entertainment. On December 5, 2007, Defendant 2 engaged in the act of arranging sexual traffic by arranging sexual intercourse with the said Nonindicted 3 and the said Nonindicted 3 at around 23:20 on the same day after receiving KRW 30,00 from Nonindicted 2, and arranging sexual intercourse with the said Nonindicted 3 at the above ○○ hotel’s hotel No. 317 on the same day. < Amended by Act No. 8630, Aug. 5, 2007>

3. Defendant 3

Defendant 3, around 24:00 on December 5, 2007, paid KRW 300,000 in return for sexual traffic to Nonindicted 4, who was a △△△△” entertainment drinking house, as indicated in paragraph (2), and engaged in sexual traffic by comparing Nonindicted 5, who was a female loan for the said entertainment drinking house, in the ○○ hotel 312 room as indicated in paragraph (1).

4. Defendant 4

Defendant 4 said that, around July 9, 2007, Defendant 1, who was in charge of the duty to levy taxes on real estate owned by a juristic person in Jung-gu Seoul Central Tax1 and Defendant 1, who was known as the actual operator of the entertainment tavern in the “(name of business establishment omitted)” in the “(name of business establishment omitted)” located in the Jung-gu Seoul Central District Office, Jung-gu, Seoul, stating to the effect that Defendant 1, who was known as the actual operator of the entertainment tavern, requested by the public official in charge of other affairs to help him in relation to the entertainment tavern business operated by the President.”

As a result, Defendant 4 demanded a bribe to arrange matters belonging to the duties of other public officials by taking advantage of his status.

Summary of Evidence

[Paragraphs 1 and 2]

1. Each legal statement of the defendant 1, 2, and 3;

1. Legal statement of Nonindicted 6’s witness

1. Each statement of each police interrogation protocol on Nonindicted 2, 3, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19

1. Investigative reports (the ○○ hotel building register), descriptions of investigation reports (in copies of the records of arrangement of commercial sex acts and provision of places), and images of pictures, such as the red sea of mixed sea, etc.;

【Paragraph 3 of this Article】

1. Defendant 3’s legal statement

1. Statement of Nonindicted 5’s protocol of interrogation of the police officer

【Paragraph 4 of this Article】

1. The legal statement of the defendant 4 (as of the sixth trial date);

1. Defendant 1’s legal statement;

1. Statement of the suspect interrogation protocol against Defendant 4 by the prosecution (including the substitute part of Defendant 1 and Nonindicted 20)

1. Each report on investigation (Analysis of data on telephone details) and report on investigation (report on confirmation of the details of telephone conversations);

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

○ Defendant 1: Article 19(2)1 of the Act on the Punishment of Acts of Arranging Sexual Traffic.

Article 19(2)1 and Article 24 (Concurrent Imposition of Imprisonment and Fines)

○ Defendant 3: Article 21(1) of the Act on the Punishment of Acts of Arranging Sexual Traffic.

Article 132 of the Criminal Act (Selection of Imprisonment)

1. Detention in a workhouse;

Defendant 2 and 3: Articles 70 and 69(2) of the Criminal Act

1. Inclusion of days of detention in detention;

Defendant 1 and 2: Article 57 of the Criminal Act

1. Suspension of execution;

○ Defendant 1, Defendant 4: Article 62(1) of each Criminal Act (The following favorable circumstances among the reasons for sentencing):

○ Defendant 2: Article 62(1) and (2) of the Criminal Act (The conditions favorable to the following reasons for sentencing):

1. Social service order;

Defendant 1 and 2: The main sentence of Article 62-2(1) of the Criminal Act, Article 59(1) of the Act on Probation, etc.

1. Additional collection:

Defendant 1: Article 25 of the Act on the Punishment of Acts of Arranging Sexual Traffic (see, e.g., “determination as to whether or not to collect” below)

1. Order of provisional payment;

Defendant 2 and 3: Article 334(1) of the Criminal Procedure Act

Determination on whether to collect additional collection and the amount thereof

1. Defendant 1

Defendant 1’s business of providing the guest rooms of ○○ hotel to a place for sexual traffic, and doing acts of arranging sexual traffic, etc., during the period from August 2, 2007 to December 5, 2007, as stated in the facts constituting an offense, the guest room usage fee is 50,00. The materials submitted by the prosecutor, such as the materials on sales records of ○○ hotel, etc., are not enough to calculate the amount of money and valuables acquired by the above Defendant during the above period. Thus, the amount of money and valuables recognized by the above Defendant on the fifth trial date, as recognized by the fifth trial date.

According to this, the number of guest rooms of ○○ hotel offered as a place for sexual traffic is 22 (40%) from August 1, 2007 to November 30 of the same year, from December 1, 2007 to December 4, 2007, 28 (50%) and 36 (number of guest rooms offered as a place for sexual traffic at the time of the control) from December 5, 207, and 50 million won per guest room.

Accordingly, when Defendant 1 calculates the amount of money and valuables acquired by engaging in sexual traffic brokerage, etc. during the above period, it is as follows.

100 million won = 112.2 million won (22 guest rooms x 50,000 won x 102 days) from August 21, 2007 to November 30, 2007 + 5.6 million won (28 guest rooms x 50,000 won x 4 days) from December 1, 2007 to December 4 of the same year + 5.6 million won (36 guest rooms x 50,000 won) on December 5, 2007

2. Defendant 2

According to the records, Defendant 2 may recognize the fact that Defendant 2 received KRW 300,000 per capita from a male grandchild who seeks to engage in sexual traffic while operating an entertainment tavern for “△△△”. However, inside the context of Defendant 2, the term “marin” managing female entertainment loan would bring about KRW 300,000 out of the above KRW 30,00,000, and all of the remainder would bring about a female entertainment loan engaging in sexual traffic. There is no evidence to prove that Defendant 2 occupied part of the above KRW 300,00,00,000. Furthermore, it is difficult to view that Defendant 2 acquired the above money from Defendant 2 on the premise that Defendant 2 independently adopted and managed the sex trafficking lending loan of this case (the prosecutor above KRW 30,000,000,000,000,000,000,000,000,000,000,000).

Thus, Defendant 2's business profit derived from the act of arranging sexual traffic in this case is only an intangible profit which increases sales by attracting more customers, and there is no specific money to be confiscated, and thus, it is impossible to collect it on the premise that it is possible to confiscate it. Thus, it is not possible to collect it separately for the above defendant.

Grounds for sentencing

1. Defendant 1, 2

The above defendants engaged in commercial sex acts while running a hotel or entertainment tavern, and there is a need to strictly punish the above defendants in light of the fact that the criminal period of the above defendants is relatively long and the size of business places operated by them are large.

However, the above Defendants did not have the history of being punished as the same crime, and are against the mistake, and the above Defendants’ age, character and conduct, environment, motive, background, means and consequence of the instant crime, etc. shall be sentenced to a suspended sentence, and the community service order shall be imposed in consideration of the sentencing conditions indicated in the records, such as the circumstances after the crime.

2. Defendant 3

Although the above defendant committed another crime of the same kind even though he/she had the record of being suspended twice as a crime of the same kind, he/she again committed another crime of the same kind. However, considering the above defendant's age, character and conduct, environment, motive, circumstances, means and consequence of the crime of this case, etc., a fine like the order shall be imposed in consideration of the conditions of sentencing as shown in the record, such as the following circumstances.

3. Defendant 4

In light of the fact that the above defendant is in charge of tax imposition at the Gu office, it is necessary to punish the defendant strictly considering the fact that he first demands a bribe to an operator of an entertainment drinking club and the nature of the crime is not very good and that the amount of the requested money is not small.

However, the above defendant did not actually receive a bribe, and has performed his service in good faith for 14 years, and received an official commendation, and taking into account the above defendant's age, character and conduct, environment, motive, circumstance, means and consequence of the crime of this case, and the circumstances after the crime, etc., the sentence of suspended execution like the order shall be imposed.

Parts of innocence

1. The part against Defendant 1

A. Summary of this part of the facts charged

Defendant 1 leased and operated ○○ hotel located in the Gangnam-gu Seoul Special Metropolitan City (number omitted), and provided the guest rooms of the above hotel from April 2006 to August 2007 to the place of sexual traffic as stated in paragraph (1) of this Article, Defendant 1 engaged in the act of arranging sexual traffic, etc.

B. Determination

As stated in the judgment of the court below, Defendant 1 only provided the guest rooms of ○○ hotel from the middle of August 2007 to the place of sexual traffic, and prior to that, the above guest rooms were not provided as the place of sexual traffic. Thus, there is no sufficient evidence to acknowledge that Defendant 1 provided the guest rooms of ○○ hotel before the middle of August 2007 to the place of sexual traffic.

Therefore, this part of the facts charged should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of a crime. However, inasmuch as it is found that the part of paragraph (1) of the judgment in relation to such a single comprehensive crime

2. The part on the defendant 2

A. Summary of this part of the facts charged

Defendant 2, while running the entertainment tavern “△△△△”, was engaged in the act of arranging sexual traffic between customers of the said entertainment tavern and female visitors by arranging sexual traffic with the said entertainment tavern, as indicated in paragraph (2) of the same Article, from April 5, 2006 to early August 2007.

B. Determination

As indicated in the judgment of the court below, Defendant 2 asserted that Defendant 2 engaged in the act of arranging sexual traffic in the entertainment tavern from the middle of August 2007 to the “△△△” entertainment bars by arranging sexual traffic with female guests of entertainment taverns, and had not arranged sexual traffic before that time. The prosecutor’s proof that Defendant 2 arranged sexual traffic with female guests of entertainment taverns in the entertainment tavern before August 2007, there is no sufficient evidence to acknowledge that Defendant 2 arranged sexual traffic between entertainment taverns and female guests of entertainment taverns prior to that of August 207.

Therefore, this part of the facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of a crime. However, as long as the court found the guilty part of paragraph (2) of the judgment in relation to such a single comprehensive crime,

Judges Posckic fever (Presiding Judge)

1) Since the timing of the act of arranging sexual traffic, etc. is a policeman on August 2007, it shall be calculated in favor of the defendant from August 21, 2007 to the point of view.