[2] Whether the court has a duty to judge the guilty of a crime different from the facts charged without any changes in the indictment (negative in principle), and where the court has a duty to exceptionally judge the guilty of another crime

1. Whether an employee may be deemed to have arranged sexual traffic for business purposes

A. The facts charged in the instant case is that the Defendant violated Article 19(2)1 of the former Act on the Punishment of Acts of Arranging Sexual Traffic (amended by Act No. 10697, May 23, 2011; hereinafter “the Gender Trade Punishment Act”), which is a penal provision for a person arranging sexual traffic for the business by arranging sexual traffic while working as an employee of a sexual traffic business establishment located in the Australia City. Thus, the Defendant constitutes a single crime of arranging sexual traffic.

B. On the ground that an employee who is employed by a business owner, etc. is not a principal of economic benefits from the arrangement of commercial sex acts, the lower court determined that the Defendant cannot be a principal of commercial sex acts, and the prosecutor asserts that the lower court erred.

C. Article 19(1)1 of the Punishment of Commercial Sex Acts provides for the punishment of persons arranging commercial sex acts, and Article 19(2)1 of the same Act provides for the aggravated punishment of persons arranging commercial sex acts. Here, engaging in commercial sex acts as an intermediary for commercial sex acts, although it does not need to engage mainly in commercial sex acts, it means mediating commercial sex acts continuously and repeatedly for commercial purpose by running a business related to commercial sex acts or accompanied by commercial sex acts, while engaging in commercial sex acts, and engaging in commercial sex acts related to commercial sex acts means managing and operating the pertinent business with the economic effect of the pertinent business.

D. Examining in light of the above legal principles, an employee who receives a certain amount of remuneration is not in a position of a person who manages and operates the relevant business for the purpose of reverting the economic effect to himself/herself, and thus cannot be a sole offender of the act of arranging commercial sex acts. Therefore, the judgment of the court below that held to the same purport is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles

2. As to the remaining grounds of appeal

A. As seen earlier, the Defendant was prosecuted as a sole offender of the act of arranging commercial sex acts, and the lower court determined that the Defendant, an employee, could not be a sole offender of the act of arranging commercial sex acts. Then, the lower court determined whether the Defendant may be deemed to have participated in the act of arranging commercial sex acts by the head of a household, namely, whether the Defendant constitutes a joint principal offender, a principal offender, or an indirect principal offender, even though there is no changes in the indictment. The lower court determined that the Criminal Act does not apply to Australia, an employer, pursuant to Article 6 of the Criminal Act, on the ground that the act of arranging commercial sex acts is not constituted a crime under the laws of the head of a household in which the commercial sex acts are located, and that the head of a household, an employee, does not constitute a joint principal offender, a principal offender, and an indirect principal offender.

B. As to this, the prosecutor asserts that the lower court erred in determining otherwise even though the Defendant cannot be a sole offender of the act of arranging commercial sex acts as an employee, since he/she acted jointly with foreigners to whom the Criminal Act does not apply, or arranged commercial sex acts for the business by using such foreigners, thereby constituting a joint principal offender or an indirect principal offender of the act of arranging commercial

C. In principle, unless there is any change in indictment, the court does not have a duty to determine the guilty of the facts constituting an offense different from the facts charged, and in light of the purpose of the criminal procedure, which is to promptly discover substantial truth through proper procedures, the court has a duty to exceptionally determine the guilty of other facts constituting an offense only in cases where the failure to punish the defendant significantly goes against justice and equity (see Supreme Court Decision 2009Do10701, Jan. 27, 20

D. The court below held that the defendant cannot be a single criminal under Article 19(2)1 of the Act on the Punishment of Commercial Sex Acts, which is a punishment provision for a person who mediates commercial sex acts for business purposes, even though the defendant cannot be a single criminal under Article 19(2)1 of the said Act, it constitutes a single criminal under Article 19(1)1 of the said Act, which is a general penal provision for the person who arranges commercial sex acts, and sentenced the defendant to a conviction of the crime of violating Article 19(1)1 of the said Act. In addition to the facts charged and the defendant's status, taking into account the following circumstances, the court below did not determine that the defendant who was prosecuted as a single criminal of commercial sex acts of arranging commercial sex acts does not constitute

E. Therefore, even if the lower court erred in determining whether a co-principal or an indirect principal, as alleged by the prosecutor, constitutes a co-principal or an indirect principal, the lower court did not have a duty to determine that the Defendant constitutes a co-principal or an indirect principal, and thus, does not affect the outcome of the lower judgment’s judgment denying the establishment of a co-principal or indirect principal. Therefore, the lower court’s assertion in the grounds of appeal by the prosecutor is not acceptable without examining

F. Meanwhile, the prosecutor appealed the entire judgment of the court below, but did not state the grounds of appeal in the petition of appeal or the appellate brief concerning the guilty portion.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)