The inducement of criminal sexual intercourse)

A defendant shall be punished by imprisonment for not less than one year and six months.

However, the execution of the above punishment shall be suspended for three years from the date this judgment became final and conclusive, and the defendant shall be ordered to attend the sexual assault treatment lecture for 40 hours.

Despite the statement of the victim that has been completely reversed in the court below, according to the evidence submitted by the prosecutor, it can be sufficiently recognized that the defendant guilty of the facts charged against the defendant who sexual intercourse with the victim and sustained bodily injury to the victim by force by stating that the victim who is a female female under the age of 15, who was released by the defendant, was able to take the place at his/her own house, to meet the conditions, and to teach the assistance. Even if the evidence on the power is not sufficient, the defendant's act of purchasing the victim's sex is deemed to have been committed, and there is room for punishment under Article 13 of the Act

Nevertheless, the court below determined otherwise and did not punish the defendant as a result of the above decision and did not recognize the above reduction, based on the misunderstanding of facts or misunderstanding of legal principles.

2. Ex officio determination

Before the judgment on the grounds of appeal is examined ex officio, the prosecutor applied for the amendment of the indictment to add the new facts charged in relation to the inducement of sexual intercourse, as seen below, and this court permitted the amendment and changed the subject of the judgment, thereby making it impossible to maintain the judgment below. However, despite the reasons for ex officio reversal, the prosecutor's assertion of mistake of facts or misapprehension of legal principles as to the primary facts charged after the amendment of the indictment is still subject to the judgment of this court, and this is examined.

3. Determination on the grounds for appeal

A. The lower court acquitted the Defendant of this part of the facts charged on the grounds that it is difficult to believe the victim’s police statement that conforms to the facts charged, according to the legal principles and circumstances as stated in its reasoning, and the remaining evidence submitted by the prosecutor are hearsay evidence or circumstantial evidence related to the facts charged, etc. and thus, it is insufficient to recognize the facts charged

Examining the evidence adopted and examined by the court below in light of the records, the court below’s determination that the only evidence submitted by the prosecutor alone is insufficient to acknowledge the primary facts charged against the defendant is acceptable, and it is difficult to conclude that there was an error of mistake of facts, as alleged by

Therefore, the prosecutor's assertion on this part is not accepted.

B. Meanwhile, as to the assertion that there is room for punishment against the defendant under Article 13 of the Act on the Protection of Children and Juveniles against Sexual Abuse in view of the defendant's act of purchasing the victim's sex at least, the prosecutor seems to have withdrawn the argument in light of the purport of adding the ancillary charges concerning the inducement of sexual intercourse under the name of the court to clarify the purport of the assertion. Even if the defendant is maintained, it is difficult to view that the defendant's act of purchasing the victim's sex is included in the primary facts charged against the defendant, as alleged by the prosecutor, and there is also a lack of evidence to recognize that the defendant's act is included in the victim's sex

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act on the ground that the above ground for ex officio reversal exists, and it is again decided as follows.

【Disorder of Judgment】 Criminal facts

On May 2014, the defendant reported news that sexual traffic, etc. takes place through a "spam, which is a community where runaway juveniles live together," and opened a "spam for the purpose of attracting runaway juveniles to have a sexual relationship by inducing them." After the defendant, on May 15, 2014, 100 won posted on the "Gapbook" website, which is only 10,000 won. The defendant sought a fright to go to go like 25 years of age, and in contact with the victim, "I live in 19 weeks, one male and two females, and if the victim does not have a sexual traffic, I would like to live in 19,000, and 10,000,000 won, 4,000,000,000,000 won, and 1,000,000,000,000,000 won, and 1,000,000,00.

On May 16, 2014, at around 10:50, the Defendant arrived at the Defendant’s home, and 10 minutes after dancing the victim, and met the victim’s body, and “packs off the victim’s clothes,” and “packs off the victim’s body, she is going off the victim’s body, she is going off the victim’s body, and there is more conditions, south, or news in Seoul.” On the part of the victim, the Defendant prompted the victim’s sexual organ, and her sexual intercourse with the victim. Accordingly, the Defendant induced the victim for sexual intercourse.

Summary of Evidence

1. The defendant's oral statement in court;

1. Part of the police statement of C;

1. Requests for appraisal;

Application of Statutes

1. Article applicable to criminal facts;

Article 288(1) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Order to attend lectures;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Defense Counsel's assertion and judgment thereon

1. The defendant's defense counsel stated the defendant's age differently from the fact on the "Gapbook" website, but the victim did not harshly 19 years of age since he made contact with the defendant in order to ask him for a 19-year old-old address, and even though the defendant stated that he was 25 years of age on the bus that he was 25 years of age, the defendant was under the defendant's room without any refusal, and he responded to his own free will, without any refusal, with his sexual relationship with the defendant, and he did so even after the sex relationship with the defendant, without any refusal. Thus, the victim cannot be deemed to have sought the defendant according to the defective intention formed by the defendant's inducement, and the victim cannot be deemed to have left his free living relationship or protection relationship, and thus cannot be punished for the crime of inducing sexual intercourse.

2. The term "induction" as referred to in Article 288 of the Criminal Act means the act of moving a person into one's own or a third party's factual control by having him/her leave from his/her free living relationship or protection relationship according to his/her defective intent by deception or her cruel means of deception. Here, a factual control refers to a physical and real control relationship with a minor (see Supreme Court Decision 2007Do2318, May 11, 2007).

As to this case based on the above legal doctrine, not only is the victim in fact confessions to the criminal acts of this case in the investigative agency but also in the trial of Daejeon, but also the following circumstances revealed by the evidence adopted and investigated by the party, i.e., the victim found a place where the victim might have sexual intercourse with the defendant at the time of temporary withdrawal from the website, so that there was concern about the occurrence of sexual intercourse between the defendant and the defendant, which could have been only one in the process of contact with the defendant, and the defendant's personal information and living environment could not be found if the victim knew of such intention of the victim, and it was difficult for the victim to know that his personal information and living environment were not known to the victim, and even if the victim knew of sexual intercourse with the defendant's personal information and living environment, it was also difficult for the victim to know that he had sexual intercourse with the defendant, who had been under the jurisdiction of the court below, and that the victim had sexual intercourse with the defendant, who was under the control of the defendant's temporary removal from the bus of Daejeon to the point of time.

3. We cannot accept the defense counsel’s above assertion under a different premise.

1. Reasons for sentencing: Imprisonment with prison labor for a period of up to 10 years;

2. Whether the sentencing criteria are applied;

Since the prosecution against the defendant was instituted on or before October 1, 2014, which is the date of enforcement of the current sentencing guidelines of the Supreme Court Sentencing Committee, which applies to the crime of this case, the crime of this case is excluded from the application of the sentencing guidelines. However, since the former sentencing guidelines, which had been enforced before the above punishment guidelines, were prepared based on Article 5-2 (4) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 11731, Apr. 5, 2013), the former sentencing guidelines cannot be applied as they are for the crime of this case, which is low after the above punishment guidelines were deleted. However, since the current sentencing guidelines were subdivided and prepared in accordance with the purpose of inducement after the deletion of the above punishment guidelines, it is to refer to the current sentencing guidelines as follows in determining the punishment against the defendant under the crime of this case.

[Determination of Punishment] In the event of kidnapping, inducing, or human trafficking crimes, it shall be limited to indecent conduct, sexual intercourse, marriage, abduction, inducement, trafficking for profit-making purposes (Type 2).

[Special Aggravations] Mitigations: In the case of consent of the victim who has capacity to make a decision, the victim is not subject to punishment (the area of recommendation and the scope of recommendation): 4 months to 2 years of imprisonment;

[Scope of the revised punishment pursuant to the applicable sentence of law] One year to two years

[Attachment of Suspension of Execution] The main reason for affirmative participation: If the victim with mental capacity agrees, there is no history of criminal punishment, and the reason for the negative participation in punishment: In the case of inducement for criticism.

3. Determination of sentence: Three years of a stay of execution in one and half years of imprisonment; and

The Defendant merely used a wife with knowledge that the victim was a her age juvenile and had no place to go out of the court below, and led the victim to his/her residence after having known about his/her personal and living environment and about the possibility of sexual intercourse, and led the victim to the actual sexual intercourse with him/her. Not only did the Defendant went out of the social demand that he/she should protect and grow up as an adult, but also criminal punishment corresponding thereto is inevitable against the defendant who has very poor sexual character. However, it is inevitable for the defendant to recognize his/her mistake and make efforts to recover the damage of the victim, and his/her mother has repeatedly complained of his/her preference to the defendant from the court below to the trial, and there is no criminal history so far.

Based on such circumstances, the defendant's age, character and conduct, environment, family relationship, relationship with the victim, background, method and result of the crime, circumstances after the crime, recovery of damage, and criminal records, etc. are comprehensively taken into account, and the punishment against the defendant shall be determined by referring to the above sentencing guidelines.

The acquittal portion

The summary of the facts charged against the defendant is that after inducing the victim as stated in the facts charged in the judgment, the victim has sexual intercourse with the victim by force, and the victim suffered bodily injury and sexual injury in which the number of days of treatment cannot be known in the course of the sexual intercourse with the victim.

However, as examined in the judgment on the grounds of appeal above, since there is a lack of evidence to acknowledge that the defendant has sexual intercourse with the victim by force only with the evidence submitted by the prosecutor, the above facts charged should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because there is no proof of crime. However, as long as it is found that the crime of inducing sexual intercourse, which is a preliminary

Judge Shin Dong-chul

The name of the judge