[1] Legislative purpose and scope of "additional collection" under Article 25 of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc.

[2] The case holding that, where half of the amount received by an actor, such as arranging sexual traffic, has been paid to a female sexual traffic, the collection shall be limited to the actual acquisition amount, but the rent for the building of the business place, which was paid during the crime, shall not be deducted from the amount collected as necessary expenses for the crime

[3] Where several persons jointly engage in the act of arranging sexual traffic, the method of additional collection (=individual additional collection)

[1] Articles 19(1)1 and 25 of the Act on the Punishment of Acts of Arranging Sexual Traffic / [2] Articles 2(1)2, 19(1)1, and 25 of the Act on the Punishment of Acts of Arranging Sexual Traffic / [3] Articles 19(1)1 and 25 of the Act on the Punishment of Acts of Arranging Sexual Traffic

[1] [2] Supreme Court Decision 2007Do8600 Decided December 14, 2007, Supreme Court Decision 2008Do1392 Decided June 26, 2008 / [3] Supreme Court Decision 73Do1963 Decided April 22, 1975 (Gong1975, 8468), Supreme Court Decision 93Do2056 Decided October 12, 1993 (Gong193Ha, 3133)

Defendant

Defendant

Attorney Lee Jae-hoon

Cheongju District Court Decision 2009No30 decided Feb. 18, 2009

The judgment of the court below is reversed, and the case is remanded to Cheongju District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The additional collection under Article 25 of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. intends to deprive the offender of unlawful profits in order to eradicate the acts of arranging commercial sex acts, etc. Thus, it is reasonable to view that the scope of the additional collection is limited to the profits actually acquired by the offender. However, since the cost, such as taxes, etc. paid by the offender in the course of performing the acts of arranging commercial sex acts, is only one way to consume the money and valuables acquired in return for the act of arranging commercial sex acts or to justify his act, the additional collection shall not be allowed (see Supreme Court Decision 2008Do1392, Jun. 26, 2008)

The court below held that since the defendant and Co-defendant 2 received 60,663,634 won from customers in relation to the act of arranging sexual traffic in this case and paid half of them to the women engaged in sexual traffic, profits acquired from the crime are 30,331,817 won. In light of the above legal principles and the records, the court below's decision is just and there is no error in violation of the rules of evidence as alleged in the grounds of appeal.

In addition, according to Article 2 (1) 2 of the Act on the Punishment of Acts of Arranging Sexual Traffic, the act of arranging sexual traffic includes the act of providing a place for sexual traffic, and even in the case of the crime of this case, the defendant et al. provided the place while operating the sexual traffic business. Therefore, the rent of the business building constitutes necessary expenses required for the crime of this case, and thus, it shall not be deducted from the additionally collected amount. The argument in the grounds of appeal on this issue

2. Meanwhile, where several persons jointly commit an act of arranging sexual traffic, etc., if it is impossible to confiscate money or other property acquired as a result of the offense, the value of the profit actually earned by each accomplice shall be additionally collected, and if the individual amount of profit is not known, the whole amount of profit shall be equally divided, and if the amount of profit cannot be collected, the whole amount of profit shall not be collected jointly from all accomplices (see, e.g., Supreme Court Decisions 69Do225, Jan. 27, 1970; 73Do1963, Apr. 22, 1975).

In light of the above legal principles, the court below erred by misapprehending the legal principles on additional collection, thereby adversely affecting the conclusion of the judgment, even though it should have collected the whole amount of profit from the defendant, if the part of the profit actually acquired by the defendant among the total profit 30,331,817 won which the defendant acquired by the act of arranging sexual traffic, etc. of this case was calculated, and if it is not possible to individually collect or specify it from the defendant as evidence, the court below should have collected the whole amount of profit from the defendant. The court below erred by misapprehending the legal principles on additional collection, which affected the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)