2020No419. Violation of the Punishment of Acts of Arranging Sexual Traffic Act

2) Violation of the Immigration Control Act

Hong Defendant (name) South 82.Woo

Housing Chang-si, Masan-si

Defendant

The number of days lower than the lower court (prosecutions), Kim Jong-woo (Trial)

Law Firm*

Attorney Jin*

Ulsan District Court Decision 2019No4074 Decided April 23, 2020

August 21, 2020

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

However, the execution of the above punishment shall be suspended for three years from the date this judgment became final and conclusive. To order the accused to be put on probation, one unit (No. 1) shall be confiscated. 3,600,000 won shall be collected from the accused. The amount equivalent to the above additional collection charge shall be provisionally paid.

1. Summary of grounds for appeal;

A. Unreasonable sentencing

The punishment of the lower court (eight months of imprisonment) is too unreasonable.

B. Error of facts and misapprehension of legal principles concerning confiscation and collection

Although it should have been ordered to confiscate only the remainder of the lease deposit claim after deducting unpaid arrears, etc., the court below ordered the forfeiture of the whole amount of the lease deposit claim, and the court below calculated the defendant's income during the entire period of operation of the sexual traffic arranging business based on the defendant's statement, but the court below did not exclude the file that the defendant paid to the sexual traffic women in the course of calculating the additional collection charge, which affected the conclusion of the judgment due to misconception of facts

2. Judgment on the assertion of unfair sentencing

The crime of this case is committed by the defendant who has employed illegal aliens to arrange sexual traffic, which is bad in the nature of the crime, and has committed a second offense despite the fact that the defendant had been punished as the same act, and in particular, the defendant was sentenced to suspended sentence for the crime of this case during the period of suspended sentence, and is disadvantageous to the defendant.

On the other hand, it is favorable to the defendant that the defendant does not repeat again while he reflects his mistake, that the period of crime is relatively short and there are many criminal proceeds, and that there are some circumstances that can be considered in the living environment of the defendant.

In addition, if the defendant's age, character, conduct and environment, motive, means and consequence of the crime, circumstances after the crime, etc. are considered as a whole and all the sentencing factors in the process of the case and pleading, it is judged that the sentence of the court below is somewhat inappropriate.

Therefore, the defendant's argument is justified.

3. Judgment of misunderstanding of facts and misapprehension of legal principles concerning confiscation and collection

A. Determination as to the forfeiture of the lease deposit and the refund claim

1) Whether confiscation under the main sentence of Article 25 of the Punishment of Commercial Sex Acts is made

Article 25 of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. (hereinafter "the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc.") provides that "the money and valuables or other property acquired by a person who commits an offense provided for in Articles 18 through 20 shall be confiscated, and where it is impossible to confiscate it, the equivalent value thereof shall be additionally collected." However, the evidence submitted by the prosecutor alone does not have any evidence to recognize that the lease deposit return claim of this case constitutes money and valuables or other property acquired by the offense of this case. Thus, it shall not be confiscated pursuant to the above Act on the Punishment

2) The proviso of Article 49 of the Criminal Act provides that confiscation under Article 8(1) of the Act on the Regulation and Punishment of Criminal Proceeds Concealment may be imposed when the requirements for confiscation exist even if a judgment of conviction is not rendered against an accused person. As such, not only confiscation but also confiscation may be imposed on the basis of the above provision. However, since there is no system that can impose confiscation or collection only without instituting a public prosecution under our legal system, the requirements for confiscation or collection should be related to the facts charged for which a public prosecution is instituted. In a case where the facts charged are not acknowledged, it is impossible for a court to recognize the facts charged for which no public prosecution has been instituted and sentence of confiscation or collection is against the principle of no accusation (see, e.g., Supreme Court Decision 92Do700, Jul. 28, 1992). Such legal principle can also be applied to cases of confiscation or collection under the Act on the Regulation and Punishment of Criminal Proceeds Concealment, which is a special provision on confiscation or collection (hereinafter referred to as "criminal Proceeds Regulation Act").

On the other hand, Article 2(1)2 of the Punishment of Commercial Sex Acts provides for the distinction between acts of arranging commercial sex acts, etc., (a), (b) and (c). Article 19(2)1 of the same Act provides for the aggravated punishment of persons who have engaged in acts of arranging commercial sex acts, etc. as a business. Article 2 Subparag. 2(b) of the Regulation of Criminal Proceeds Concealment Act provides for the crime of Article 2(1)2(c) of the Commercial Sex Acts among acts of arranging commercial sex acts, etc., that is, the crime of Article 2(1)2(c) of the Act on the Punishment of Commercial Sex Acts, which is, the crime of providing commercial sex acts, etc., in awareness of the fact that they are provided for commercial sex acts

In full view of these legal principles and the provisions of law, in order to confiscate proceeds from a crime related to a crime under Article 19 (2) 1 of the Act on the Punishment of Commercial Sex Acts in Article 2 subparagraph 2 (b) of the Act on the Punishment of Commercial Sex Acts, the facts charged against the defendant should be related to "the act of providing funds, land, or buildings despite being aware of the fact that they are provided for sexual traffic" under Article 2 (1) 2 (c) of the Act on the Punishment of Commercial Sex Acts. However, in the facts charged of arranging commercial sex acts against the defendant, "after leasing the above place" is stated in the facts charged of arranging commercial sex acts, it is nothing more than that of stating the preparation process for arranging commercial sex acts, and it is difficult to view that the above facts charged against the defendant are not included in the Act on the Punishment of Commercial Sex Acts, Article 2 (1) 2 (c) of the Act on the Punishment of Commercial Sex Acts and the Act on the Punishment of Commercial Sex Acts and subordinate statutes.

3) Sub-committee

Therefore, the court below ordered forfeiture of the right to return the lease deposit of this case pursuant to Article 25 of the Commercial Sex Act, Article 8 (1) of the Regulation on the Punishment of Commercial Sex Acts, and Article 8 (1) of the Regulation on the Punishment of Criminal Proceeds Concealment Act, which affected the conclusion of the judgment by misunderstanding the facts, or by misunderstanding the legal principles on the confiscation of the right to return the lease deposit of this case. The defendant's assertion pointing this out has merit.

B. Determination on the calculation of the additional collection amount

The purpose of collection in accordance with Article 25 of the Punishment of Commercial Sex Acts is to deprive the criminal of unlawful profits from the act in order to eradicate the act of arranging sexual traffic, etc. Thus, it is reasonable to view that the scope of collection is limited to the profits actually acquired by the criminal (see, e.g., Supreme Court Decisions 2007Do8600, Dec. 14, 2007; 2008Do1392, Jun. 26, 2008; 2009Do223, May 14, 2009).

In this case, a crime committed by the defendant is not a commercial sex acts, but a compensation for the act of arranging commercial sex acts, and the defendant actually acquired profits is not a full payment for the commercial sex acts, and according to the records, the defendant received a total of 9,000,000 won from the customers in return for the act of arranging commercial sex acts during the crime period, and paid about 40% of the total of 60% from them to the female in exchange for the act of arranging commercial sex acts, so it is reasonable to view that the profits actually acquired by the defendant in return for the act of arranging commercial sex acts are 3,60,000 won (= 9,00,000 won x 40%). Nevertheless, the court below collected the total amount of money received by the defendant from the customers without collecting only the profits actually acquired in return for the act of arranging commercial sex acts. Accordingly, the court below erred by misapprehending the legal principles on the scope of actual profits or by misapprehending the legal principles on the calculation of additional collection amount, which affected the conclusion of the judgment.

4. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act and the following is ruled again.

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

The summary of the facts constituting an offense and the evidence acknowledged by this court is the same as the entries in each corresponding column of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act

Application of Statutes

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

Article 19(2)1 of the Punishment of Commercial Sex Acts (the occupation of a business arranging sexual traffic), Article 94 subparag. 9 of the Immigration Act, Article 18(3) of the Immigration Act (the occupation of a foreigner who has no status of stay) and the choice of imprisonment each

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2 and 50 (only to the extent that the punishment is aggregated with the punishment provided for in the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. with heavy punishment) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration favorable circumstances among the sentencing conditions in paragraph (2) above)

1. Probation;

Article 62-2 of the Criminal Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Additional collection:

The latter part of Article 25 of the Punishment of Commercial Sex Acts

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act provides that the sentence shall be determined as per the order after comprehensively taking into account the reasons for sentencing specified in Article 334(2).

The presiding judge, judge, Dong-gu

Judges Nam-tae et al

Judges Han Young-young,