성매매알선등행위의처벌에관한법률위반(성매매알선등)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than eight months.
2,972,728 won shall be additionally collected from the defendant.
1. The summary of the grounds for appeal (e.g., imprisonment with prison labor for 8 months, 6,260,000) of the lower court is too unreasonable.
2. Ex officio determination
A. Before determining the Defendant’s assertion of unreasonable sentencing, the lower court ex officio examined the grounds for ex officio reversal as follows.
B. According to the records, the Seoul Northern District Court sentenced the defendant to six months of imprisonment for the crime of violation of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. (the Act on the Punishment of Commercial Sex Acts, Etc.) on November 13, 2014, and sentenced to the punishment of KRW 11,057,142, which became final and conclusive on January 29, 2015. The crime in the judgment of the court below is in concurrently related to the crime of violation of the Act on the Punishment of Arrangement of Commercial Sex Acts, etc. (the Act on the Punishment of Commercial Sex Acts, Etc.) and the latter part of Article 37 of the Criminal Act, which became final and conclusive, and thus, determined a punishment after examining whether to reduce or exempt the punishment in consideration of equity and the case at the same time under Article 39(1) of the Criminal Act.
C. In addition, during the period of the instant crime, the lower court sentenced the Defendant to collect the full amount of KRW 6,266,832, which the Defendant received from the sexual traffic customers, from the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on the calculation of additional collection
1) The purpose of collection under Article 25 of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. is to deprive a woman engaged in sexual traffic of unlawful profits in order to eradicate the acts of arranging sexual traffic, etc. Thus, it is reasonable to deem that the scope of collection is limited to the profits actually acquired by the offender. In a case where part of the amount received from the offender, such as arranging sexual traffic, has been paid to the female engaged in sexual traffic, the scope of collection is limited to the actual acquired portion (see, e.g., Supreme Court Decisions 2008Do1392, Jun. 26, 2008; 2009Do223, May 14, 2009).