2018Gohap232

(a) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (mediation business, etc.);

(b) Violation of the Punishment of Violences, etc. Act;

(c) Larceny;

1.(a)(c) A;

2.(a) B

Jincilium (prosecution), teared leather, and Lee Jincincil (public trial)

Attorney Sung-jin (the national election for the defendant A)

Law Firm ice (for the defendant B)

Attorney Park Jong-young

May 3, 2019

1. Defendant A

Defendant A shall be punished by imprisonment for three years.

except that the execution of the above punishment shall be suspended for four years from the date this judgment becomes final and conclusive.

Defendant A shall be ordered to take a 40-hour course for the prevention of commercial sex acts and provide community service for 80-hour hours.

Defendant A shall be ordered to place employment restrictions on children and juveniles-related institutions, etc. for three years.

2. Defendant B

Defendant B shall be punished by imprisonment with prison labor for a year and six months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Defendant B shall order Defendant B to take a 40-hour course for the prevention of commercial sex acts and provide community service for 40-hour hours.

Defendant B shall order employment restrictions to institutions related to children and juveniles, etc. for three years.

Criminal facts

1. Joint criminal conduct by Defendant A and C;

Defendant A and C had children and juveniles D (n, 16 years of age) engage in commercial sex acts, and had them divided. Defendant A conspiredd to operate vehicles, thereby moving D into the place of commercial sex acts, and Defendant A conspired to play a role of soliciting sexual buyers using chip 'Grash', which is called 'Ahhm amp.'

Defendant A and C, around October 28, 2017, recruited sexual buyers through 'U.S.’ through 'U.S.’ at the French site around 23:00 on October 28, 2017, followed D to receive 1.20,00 won from sexual buyers on his name in the Felto E site located in Seocheon-si, Seocheon-si, by receiving 1.20,00 won from sexual buyers on his name, and assisted them to engage in commercial sex acts in the same manner from around that time to November 1, 2017, such as the list of crimes No. 1 to 3 times per annum.

As a result, Defendant A and C conspiredd to arrange the purchase of child and juvenile sex.

2. Defendants’ co-principal conduct

(a) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (mediation business, etc.);

The Defendants, along with G and H, intended to have D engage in sexual traffic and divide the price into two parts. Defendant A conspiredd to play a role of moving D into the place of sexual traffic by driving the vehicle, and to recruit sexual buyers using G, H and Defendant B’s “H” less to perform the role of converting D into the place of sexual traffic.

At around 22:00 on November 8, 2017, the Defendants recruited sexual buyers with G and H through 'Grax', and ordered D to receive 1.50,000 won from sexual buyers in name in the Fmotour on the Eths located in Seocheon-si, Seocheon-si, for a total of four times, such as the statement No. 4 through No. 7 of the annexed list of crimes, from around that time to November 17, 2017.

As a result, the Defendants conspired to arrange the purchase of sex by children and juveniles.

(b) Violation of the Punishment of Violences, etc. Act;

On November 11, 2017, the Defendants heard from the victim I (the age of 38) who attempted to engage in sexual traffic with G and H, that the Defendants were threatened with knife and assaulted, and sought to resist the victim.

At around 05:30 on November 11, 2017, the Defendants, G, and H found the victim’s residence located in Bupyeong-gu Incheon Metropolitan Bupyeong-gu J building K, and caused the victim to open the entrance, and caused the victim’s face to drinking out. Defendant B continued to have a dispute with Defendant A with the victim, and caused the victim’s face to drinking out and drinking out the victim’s eye on the hand, and Defendant A also prevented the victim from leaving the entrance in front of the entrance.

As a result, the Defendants jointly with G and H, caused approximately two weeks of treatment to the victim, such as the left-hand snow.

3. The sole criminal conduct of Defendant A;

Defendant A had a 200,000 won in cash owned by the victim I who had been a consignee at the time and place specified in Section 2-b).

Accordingly, Defendant A stolen the property owned by the victim.

Summary of Evidence

1. Defendants and C’ respective legal statements

1. D's legal statement;

1. A copy of each police interrogation protocol of G and H;

1. A copy of the I or L statement;

1. A copy of an injury diagnosis letter;

1. Copy of a photograph of damaged part of the victim;

[Defendant B and his defense counsel asserted that Defendant B is not a joint principal offender but a aiding and abetting crime. However, considering the following circumstances acknowledged by the evidence duly adopted and investigated by this court, Defendant B plays a role to seek sex purchase, which is the most important part in arranging sexual traffic; Defendant B took part of the sexual traffic price; Defendant B actively took part in the crime of violation of the Punishment of Violence, etc. Act (joint injury) in the judgment in the course of sexual traffic; Defendant B recommended Defendant B to continue sexual traffic; Defendant B had a functional control over the crime as stated in the judgment; Defendant B and his defense counsel’s assertion cannot be accepted.

Application of Statutes

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

(a) Defendant A: Article 2(2)3 of the Punishment of Violences, etc. Act, Article 257(1) of the Criminal Act (the point of joint injury, the choice of imprisonment), Article 15(2)3 of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 30 of the Criminal Act, Article 329 of the Criminal Act

B. Defendant B: Article 2(2)3 of the Punishment of Violences, etc. Act, Article 257(1) of the Criminal Act (the occupation of joint injury and the choice of imprisonment), Article 15(2)3 of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 30 of the Criminal Act (the occupation of mediation of sexual traffic and the choice of imprisonment)

1. Aggravation for concurrent crimes;

- Defendants: Articles 37 (former part), 38 (1) 2, and 50 (an aggravated punishment for concurrent crimes as provided for in the Act on the Punishment of Violences, etc. with the largest punishment) of each Criminal Code

1. Suspension of execution;

- Defendants: Article 62(1) of the Criminal Act (see, e.g., favorable circumstances for sentencing)

1. Order to attend lectures or order to provide community service;

- Defendants: the main sentence of Article 21(2) and (4) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. An employment restriction order;

- Defendants: Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse ( January 16, 2018); Article 56(1) main text and Article 56(2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 15452, Mar. 13, 2018)

Reasons for sentencing

1. Defendant A

(a) Scope of applicable sentences under law: Imprisonment with prison labor for one month to September 15;

(b) Scope of recommendations based on the sentencing criteria;

1) The First Crimes [Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.)]

[Determination of Punishment] Commercial sex Acts subject to the age of 19 years; (c) Mediation, etc. of Commercial Sex Acts subject to the age of 19 years for children and juveniles; and

[Special Aggravations] Aggravations: Intermediations using advertisements or high radio wave media

[Recommendation and Scope of Recommendation] Aggravation, 1-3 years of imprisonment

(ii) Second thief (thief)

[Determination of thief] 01. General thief for general property

【Special Convicted Person】

[Recommendation and Scope of Recommendations] Basic Field, Imprisonment of 6 months to 1 year and 6 months;

(iii) Class 3 (Violation of the Punishment of Violences, etc. Act (joint injury))

[Determination of Type 1] In general injury to a violent crime / [No. 1] General injury

【Special Convicted Persons】

Measures to mitigate: Where a minor injury, the occurrence of a crime, or the expansion of damage is reasonably responsible for the victim;

Aggravations: Where a person commits a crime through the threat of collective force or by carrying a dangerous weapon.

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment from February to October

4) Scope of recommendations according to the standards for handling multiple crimes: One to four years of imprisonment (the upper limit of the first crime + the upper limit of the second crime + the 1/2 + the upper limit of the third crime + 1/3)

(c) Determination of sentence: Three years of imprisonment, four years of probation, 40 hours of an order to attend a course, community service, 80 hours and three years of employment restriction;

◎ 불리한 정상

- Each of the crimes of this case committed in the manner of arranging D to engage in sexual traffic at least seven times, searching for gender purchasing male house, resulting in an injury to D's accomplices, and cutting off cash on the way of causing injury to D's co-offenders, and causing injury to them, and is not suitable for such crime.

- Defendant A planned and implemented the crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.).

- Defendant A did not take any measures for the recovery of the victim’s damage, and the victim wishes to punish Defendant A.

- After committing each of the instant crimes, Defendant A had his accomplice take text messages and had the investigation agency make a false statement.

- Defendant A has a record of having been suspended from indictment due to the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.) and special larceny.

◎ 유리한 정상

- Defendant A recognizes the facts charged.

-the amount of theft and the degree of injury are relatively weak;

- - No D shall initiate sexual traffic against its will.

- In the occurrence of the crime of violation of the Punishment of Violences, etc. Act (joint injury), the victim is also partly responsible for the crime.

- Defendant A has no record of criminal punishment except for the punishment imposed on the violation of the Guarantee of Automobile Accident Compensation Act in 2018.

◎ 그 밖에 피고인 A의 나이, 성행, 범행의 동기와 수단, 범행 후의 정황 등 이 사건 재판 과정에서 나타난 제반 양형 요소를 종합적으로 고려하여 주문과 같이 형을 정한다.

2. Defendant B

(a) Scope of applicable sentences under law: Imprisonment with prison labor for one month to September 15;

(b) Scope of recommendations based on the sentencing criteria;

1) The First Crimes [Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.)]

[Determination of Punishment] Commercial sex Acts subject to the age of 19 years; (c) Mediation, etc. of Commercial Sex Acts subject to the age of 19 years for children and juveniles; and

[Special Aggravations] Aggravations: Intermediations using advertisements or high radio wave media

[Recommendation and Scope of Recommendation] Aggravation, 1-3 years of imprisonment

(ii) Class 2 (Violation of the Punishment of Violences, etc. Act (joint injury))

[Determination of Type 1] In general injury to a violent crime / [No. 1] General injury

【Special Convicted Persons】

Measures to mitigate: Where a minor injury, the occurrence of a crime, or the expansion of damage is reasonably responsible for the victim;

Aggravations: Where a person commits a crime through the threat of collective force or by carrying a dangerous weapon.

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment from February to October

3) Scope of recommendations according to the standards for handling multiple crimes: Imprisonment with prison labor for one to three years (the first crime maximum + the second crime maximum 1/2)

(c) Determination of sentence: One year and six months of imprisonment, two years of stay, 40 hours of an order to attend a course, community service, 40 hours and three years of employment restriction;

◎ 불리한 정상

- Each of the crimes of this case shall be arranged four times to enable D to engage in sexual traffic, and the case shall be found in the house of male purchase, and the case shall be one in combination with accomplices, causing injury to D, and the nature of the crime shall be bad.

- Defendant B did not take any measures for the recovery of the victim’s damage, and the victim wants to punish Defendant B.

◎ 유리한 정상

- Defendant B recognizes the fact that he did an act like the facts of the crime.

- The degree of injury is relatively weak.

- Defendant B’s participation in the crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.) is relatively low.

- - No D shall initiate sexual traffic against its will.

- In the occurrence of the crime of violation of the Punishment of Violences, etc. Act (joint injury), the victim is also partly responsible for the crime.

- Defendant B has no record of criminal punishment except for the punishment of a fine for insult in 2017.

◎ 그 밖에 피고인 B의 나이, 성행, 범행의 동기와 수단, 범행 후의 정황 등 이 사건 재판 과정에서 나타난 제반 양형 요소를 종합적으로 고려하여 주문과 같이 형을 정한다.

Registration of Personal Information

Where a conviction of a person subject to registration becomes final and conclusive with respect to a crime of violation of the Act on the Punishment, etc. of Sexual Crimes against Children and Juveniles against Sexual Abuse, the Defendants are subject to registration of personal information pursuant to Article 42(1) of the same Act, and the Defendants shall submit personal information to the competent agency pursuant to Article 43 of the same Act. Meanwhile, in full view of the crimes of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (mediation, etc.) and the other crimes of violation of the Act on the Punishment, etc. of Sexual Crimes and the other crimes of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse as stated in the holding that the period of registration of personal information is not necessary to be determined more short-term period than the period imposed pursuant to Article 45(4) of the

Parts of innocence

1. The summary of the facts charged [the violation of Article 15 (1) 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse]

A. Defendant A and C’s co-principal conduct

Defendant A and C had children and juveniles D (n, 16 years of age) engage in commercial sex acts, and had them divided. Defendant A conspiredd to operate vehicles, thereby moving D into the place of commercial sex acts, and Defendant A conspired to play a role of soliciting sexual buyers using chip 'Grash', which is called 'Ahhm amp.'

Defendant A and C, around October 28, 2017, recruited sexual buyers through 'U.S.’ through 'U.S.’ at the French site around 23:00 on October 28, 2017, followed D to receive 1.20,00 won from sexual buyers on his name in the Felto E site located in Seocheon-si, Seocheon-si, by receiving 1.20,00 won from sexual buyers on his name, and assisted them to engage in commercial sex acts in the same manner from around that time to November 1, 2017, such as the list of crimes No. 1 to 3 times per annum.

As a result, Defendant A and C conspiredd to arrange the purchase of child and juvenile sex for business.

B. The Defendants’ co-principal

The Defendants agreed to allow D to engage in commercial sex acts and divide the price. Defendant A conspiredd to play a role of having D to move D to a commercial sex acts place, using G, H, and Defendant B’s less to attract sexual buyers using the “Ging Flux” Rool.

From November 8, 2017 to November 22, 200, the Defendants recruited sexual buyers with H and G through 'Graz', and requested D to receive 150,000 won from sexual buyers on his/her name in the Fmotour on the Eths in Bupyeong-si, Seocheon-si, for a total of four times, including that from around 22:20 on the same day to November 17, 2017, the Defendants arranged the act of buying sex over four times in total, as described in No. 4 to 7 of the annexed list of crimes.

As a result, the Defendants conspired to arrange the act of buying sex of children and juveniles for business.

2. Determination

A. The elements of “business” refer to where a person continues to engage in certain business based on his/her social status, and in other words, a certain act is conducted repeatedly or repeatedly or by intention to continue to exist (see, e.g., Constitutional Court Order 2011Hun-Ga1, Oct. 25, 201). Whether such act constitutes “business” ought to be determined in accordance with social norms by comprehensively taking into account various circumstances, such as whether the act was repeated or continued, whether the act was conducted, whether the act was conducted, whether the act was conducted, and the purpose, size, frequency, period, and manner of the act, regardless of whether the person was simply equipped with human or physical facilities necessary (see, e.g., Supreme Court Order 2013Do8449, Sept. 27, 2013).

In particular, Article 15(1)2 of the Act on the Protection of Children and Juveniles against Sexual Abuse provides that a person who acts as a broker for purchasing sex of children and juveniles shall be punished by imprisonment for a limited term of at least seven years. On the other hand, Article 15(2)3 of the same Act provides that a person who acts as a broker for purchasing sex of children and juveniles shall be punished by imprisonment for not more than seven years or by a fine not exceeding 50 million won, and there is a significant difference in statutory punishment depending on whether a person who acts as a broker for purchasing sex of children and juveniles is engaged in business. As such, the reason why a person who acts as a broker for purchasing sex of children and juveniles is forcibly punished by a broker for purchasing sex of children and juveniles, not only becomes the counterpart for purchasing sex but also becomes more easily accessible from the standpoint of a sexual purchaser, thereby continuously creating a new and more simple basis for purchasing sex of children and juveniles as well as increasing the number of children and juveniles' sexual desire, and thus, continuously creating and spreading the form of buying sex of children and juveniles as a business.

Considering the difference between the criteria for determining the relevant provisions of the Act on the Protection of Children and Juveniles against Sexual Abuse and the legislative intent thereof, it is necessary to strictly interpret whether “the act of arranging the purchase of sex of children and juveniles” is “the act of arranging the purchase of sex of children and juveniles.”

B. Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined by this court, it is difficult to deem that the evidence submitted by the prosecutor alone proves that the Defendants arranged the purchase of the sex of children and juveniles as a business.

① The number of times when D had engaged in sexual traffic by the Defendants is seven times, and the period is not one month. D stated that it had been engaged in sexual traffic, but there is no evidence to acknowledge it.

② The total profits that the Defendants acquired by sexual traffic in D are merely 50 to 60 million won.

③ The Defendants did not actively seek a child or juvenile who is engaged in sexual traffic, and the Defendants do not seem to have directed and supervised D in the course of sexual traffic, and D voluntarily discontinued sexual traffic.

④ The Defendants’ crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (a brokerage business, etc.) committed sexual traffic by the Defendants is 41 children and juveniles. D and C, sexual intercourse L, which is sexually purchased, also stated as if the Defendants were more likely to engage in sexual traffic (Article 362 and 591 of the Investigation Records). However, there is no evidence to acknowledge it.

3. Conclusion

Thus, since this part of the facts charged against the defendants constitutes a case where there is no proof of crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found to be guilty of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.), it is not judged not guilty in separate text, and the defendants agree to the purport of the public announcement of the verdict of innocence pursuant to the proviso of Article 58(2)

Termination of the presiding judge;

Judges Kim Su-soo

Judges Park Jae-young

A person shall be appointed.