[1] The meaning of “taking over or taking over a child” in the crime of child trade under Article 17 subparag. 1 of the Child Welfare Act, and the standard for determining whether there was a real control over the pertinent child

[2] The case holding that in a case where the defendant was prosecuted for violating the former Child Welfare Act on the ground that he was arrested by a police officer dispatched to the site and attempted to sell and purchase Gap, while he did not directly use violence or intimidation against Gap (the age of 13), he did not have sexual intercourse with Eul (the age of 13), and did not have sexual intercourse for five days at the studio of Eul, who was the branch of Eul (the age of 13) and attempted to go beyond Gap, and he did not receive money from Byung, the defendant was indicted for violating the former Child Welfare Act on the ground that he did not intend to trade Gap by arresting a police officer who was dispatched to the site

[1] The crime of child trafficking under Article 17 subparagraph 1 of the Child Welfare Act is established when a child is transferred or received from another person in return for remuneration or consideration. Here, the meaning of “taking or taking over the child” is that the person’s body is transferred under the actual control of the child. However, as the Child Welfare Act prescribes “child” as a person under 18 years of age, and does not limit it to the infant, it should be determined by comprehensively considering the relevant child’s age, recognition ability, relationship with the offender (seller or buyer), situation at the time, etc.

[2] In a case where the Defendant was indicted for violating the former Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014), on the ground that: (a) he was aware of the fact that he was aware of the fact that he was living alone at the Internet line, and did not receive money from Byung who was aware of the fact; (b) he did not receive money from Byung; and (c) he was arrested to the police officer who was dispatched to the scene through the Internet hosting; (d) he was tried to sell and attempted to sell Gap; and (e) he was indicted on charges of violation of the former Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014), the case affirming the judgment that the Defendant did not receive money from Byung who was aware of his personal affairs; and (e) the Defendant did not receive money from Byung who did not know about his personal affairs; and (e) the Defendant did not receive money from Byung and did not inform him of all the fact that he did not directly over the Defendant’s life at the time.

[1] Article 3 subparag. 1 and Article 17 subparag. 1 of the Child Welfare Act, Article 71(1)1 of the former Child Welfare Act (Amended by Act No. 12361, Jan. 28, 2014) / [2] Article 1, Article 3 subparag. 1 and Article 17 subparag. 1 of the Child Welfare Act, Article 71(1)1 and Article 73 of the former Child Welfare Act (Amended by Act No. 12361, Jan. 28, 2014)

[1] Supreme Court Decision 2014Do7998 Decided November 27, 2014

Defendant

Defendant

Song-ho et al. and one other

Law Firm Geumhae, Attorneys Jung-young et al.

Changwon District Court Decision 2014Ra3440 decided February 10, 2015

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Legal principles

The Defendant asserts that, in order to establish the “act of selling and selling children” under Article 17 subparag. 1 of the Child Welfare Act, “transfer of real control over children” is necessary. In light of the following circumstances, the Defendant cannot be deemed to have controlled children as real force, but otherwise, the Defendant was guilty of having committed an attempted act of selling and selling children, thereby adversely affecting the conclusion of the judgment.

① The Ma○○○○○○ (hereinafter referred to as “victimed child”) published a letter to find a person for play together with the victimized child through the first hosting pattern, and the Defendant reported this writing and contacted the victimized child. As such, there was no assault or intimidation during the first gathering of the victimized child.

② The Defendant had sexual intercourse while drinking the victimized child at the her motherel with drinking, and thereafter, had sexual intercourse several times with Nonindicted Party 1’s house, the Defendant’s seat. However, in the process, there was no assault or intimidation against the victimized child, and the victimized child could leave Nonindicted Party 1’s house at any time depending on her will.

③ In the process of selling the victimized child to ○○○, the Defendant knew in advance that the victimized child will move to another person’s house, and agreed to the victimized child. If the victimized child does not want it, the Defendant did not want to send the victimized child to ○○○.

④ The Criminal Act does not punish a sexual intercourse by agreement with a minor under 13 years of age or older. This is due to the recognition of the right to sexual self-determination by which a minor under 13 years of age or older can choose the other party to sexual intercourse and the other party to sexual intercourse. The victimized child has the right to self-determination by which the victimized child can choose whether he/she will engage in sexual intercourse with the Defendant at the age of 13 and in the process, and whether he/she will engage in sexual intercourse with Nonindicted Party 1’s house. Thus, the series of acts in this case should be viewed as based

B. Unreasonable sentencing

The defendant asserts that the punishment sentenced by the court below (one year of imprisonment) is too unreasonable.

2. Determination

A. Judgment on the misapprehension of legal principles

1) The facts charged in this case

On June 14, 2014, the Defendant: (a) used the fact that a victimized child (a child born from home, 13 years old) who became aware of a smartphone dumping fishing method (a child born from home, 13 years old) is in a poor situation, such as scarbly and scarbly without any place; (b) made a sexual intercourse with another male, and continuously made sexual intercourse with his/her father while having his/her friendship with him/her, and (c) had his/her child engage in sexual intercourse with him/her; and (d) intended to sell and sell the victimized child.

피고인은 2014. 6. 19. 12:30경 김해시 (주소 생략) 피고인의 집에서, PC를 이용하여 인터넷 토크온상에 “김해 15세 ㄱㅊㄴ(가출녀) 데려가실 분, 제시”라는 채팅방을 만들고, 방에 들어와 “80만 원에 가출녀를 데려가겠다.”라고 하여 피고인의 아동매매 제안을 받아들이는 신○○에게 “오후 2시까지 김해 외동 ○○은행 내에 기다리고 있으면 그 장소로 찾아가 80만 원을 받고 그 즉시 가출녀를 넘겨 주겠다.”고 하였다.

At around 14:00 on the same day, the Defendant was arrested by a police officer who was dispatched to the site upon receiving a report from ○○○○○, and tried to sell the victimized child to ○○○. However, the Defendant was arrested to the police officer who was dispatched to the site.

2) The judgment of the court below

The lower court found the Defendant guilty of the instant facts charged.

3) Determination of the immediate deliberation

A) Relevant provisions

The purpose of the Child Welfare Act is to guarantee the welfare of children so that children can be born healthy and grow up happy and safely (Article 1), and Article 3 Subparag. 1 of the Child Welfare Act and Article 17 Subparag. 1 of the same Act prohibit the sale and purchase of children (Article 17 Subparag. 1 of the same Act). The former Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014) provides that a person who sells and sells a child shall be punished by imprisonment with labor for not more than ten years or by a fine not exceeding 50 million won (Article 71(1)1 of the same Act), and an attempted child welfare Act amended by Act No. 12361, Jan. 28, 2014 shall be punished by imprisonment with labor for not more than ten years (Article 73); and Article 71(1)1 of the same Act shall also be punished by a fine not exceeding the previous Article 73 of the same Act (Article 71(1)1 of the same Act).

Meanwhile, the Criminal Act provides that a person who has purchased or sold another shall be punished by imprisonment with prison labor for not more than seven years (Article 289(1)), and that a person who has kidnapped or induced a minor shall be punished by imprisonment with prison labor for not more than ten years (Article 287).

B) Determination

The crime of selling children under Article 17 subparagraph 1 of the Child Welfare Act is established when a child is transferred or transferred to another person in return for remuneration or consideration (see Supreme Court Decision 2014Do7998, Nov. 27, 2014). Here, the meaning of “taking or receiving a child in transit or transfer” can be seen as taking over the body of the child under the control of the child with real force. However, the Child Welfare Act stipulates that the child is under 18 years of age and does not limit the child, and thus, the crime of selling children is determined by comprehensively taking into account the relevant child’s age, recognition ability, relationship with the offender or buyer, situation at the time, etc.

In full view of the following circumstances revealed by the evidence duly adopted and examined by the court below, it is reasonable to view that even if the defendant did not exercise direct assault or intimidation against the victimized child, the defendant had control over the victimized child who was only 13 years old at the time of the instant case as sufficiently as a real force. Thus, the court below's judgment convicting the defendant on the ground that the defendant attempted to trade and attempted to trade the victimized child, is justified.

Therefore, the defendant's assertion of legal principles is not accepted.

① A victimized child was born on September 21, 200 and was living together with his grandparents, etc. at the house located in the Dong-gun, Chungcheongnam-gun, Chungcheongnam-do, and was in the first grade of ○○ Middle School and was temporarily closed and went back again, and was temporarily closed. The victimized child’s parents divorced from 6 months after the victimized child was born, and his grandparents continued to grow up the victimized child. On June 14, 2014, the victimized child was on the part of Non-Indicted 2, who was in the Masan-gun’s seat and Masan-gun’s seat, with Non-Indicted 2, who was playing in the Masan-gun. The victimized child was on the part of Non-Indicted 2 and Non-Indicted 2, who was living together in the Masan-gun. The Defendant was on the part of Non-Indicted 2 and Non-Indicted 2 and the Defendant was on the part of Non-Indicted 3 and the Defendant was on the part of Non-Indicted 3, who was on the part of the Defendant.

② On June 14, 2014, the Defendant asked Nonindicted 1 (1980s), when communicating with the victimized child, asked the age of the victimized child at the age of 15, and promised to interview with the victimized child, and on June 14, 2014, the Defendant first met with Nonindicted 3, who was on duty, and was on duty, Nonindicted 2. On the same day, the Defendant asked Nonindicted 1 (1980sssssssss), who was a son, to contact the victimized child with the victimized child, and asked Nonindicted 1 (1980sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss.

③ At around 18:00 on June 14, 2014, the Defendant and Nonindicted 3 moved victimized children and Nonindicted 2 to the vehicle driven by the Defendant, moving from the convenience store to the drinking room, and the Defendant took drinking at the convenience store immediately after having sexual intercourse with the victimized children at night. As a result, the victimized child was under the influence of alcohol, and the victimized child was under the influence of alcohol, so that the victimized child could not have his body properly classified. In order for the victimized child to bring the victimized child to the victimized child, the Defendant informed Nonindicted 1 of the care room of the matern’s room at the mother room where the victimized child was under the influence of alcohol, and the Nonindicted 1 arrived at the mother room where the victimized child was under the influence of alcohol, so that the victimized child could easily have the victimized child go to the police (referring to having been under the influence of the victimized child).”

④ The time at which the victimized child was her mother was 12:0 p.m. at the time of her mother’s child’s snow, and the victimized child was her body could not be properly divided due to drinking until then. The distance to the Gyeong-gun, Gyeong-gun, Gyeong-gun, Gyeong-gun, where the victimized child was living in the her mother-si, approximately 60km, and the victimized child was in a situation where it was extremely difficult for her child to return to her home on her own, and it appears that there was no other method except that she did not go back to her house, and the Defendant tried to go beyond 1 by using this point from the beginning. As such, it is reasonable to deem that the Defendant used the situation where the victimized child was unable to reach her age even if her victimized child pursuant to Nonindicted 1 without any resistance, even if she was living in the her mother-si.

⑤ Under Nonindicted 1, the victimized child was her at the studio in the outside of the city of Kim Jong-dong of Nonindicted 1 and stayed for about five days from June 19, 2014. The Defendant found Nonindicted 1’s studio for about three days, excluding two days during five days, and continued to contact with the victimized child through the mobile phone.

④ At the time of Non-Indicted 1’s stay in the room, it appears that it was difficult for the victimized child to find his house alone, and the Defendant and Non-Indicted 1 appear to have taken advantage of these circumstances that the victimized child was unable to take away from Non-Indicted 1’s room by treating the victimized child by providing accommodation to the victimized child. As such, it cannot be deemed that the victimized child stayed in the room of Non-Indicted 1 based on his genuine will.

7) During Nonindicted 1’s studio, the victimized child was under contact with Non-Indicted 2 that he was aware of her her her her her her her her her her her her her her her her her her her her her her her her her her her hers at home, and became known to the Defendant. However, the Defendant, instead of returning the victimized child to her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her hersss at home, and instead, the Defendant decided to introduce the Defendant’s her her her her her own her own her her own her her her her hers.

B. Determination on the assertion of unfair sentencing

The facts of this case are recognized and reflected by the defendant, and the defendant has no record of punishment in the past, and the crime of this case is committed in the attempted crime, and deposit money for the recovery of damaged children in the trial.

However, it is difficult to view that the Defendant committed a crime by using the vulnerable places of the victimized child under the age of 13, who was born at the age of 13, and recognized the Defendant’s attitude as a precious personality body while committing the crime. The crime that abused the poor state of the runawayed child is going across society throughout society, which requires strict punishment of the instant crime, and the Defendant’s past record of juvenile protective disposition is considered as disadvantageous to the Defendant. In full view of other circumstances, comprehensively taking into account the Defendant’s age, character and behavior, environment, motive and background of the crime, means and method of the crime, and the circumstances after the crime, etc., as well as various circumstances that are the conditions for sentencing and sentencing specified in the arguments and records of the instant case, it is not recognized that the lower court’s punishment is excessively unreasonable.

Therefore, the defendant's assertion of unfair sentencing is not accepted.

3. Conclusion

Since the appeal by the defendant is without merit, it shall be dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition (However, since the application of the law of the court below is clearly erroneous entry of "Child Welfare Act" in the former Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014), it shall be corrected ex officio in accordance with Article 25(1) of the Rules on Criminal Procedure).

Judges Cho Jae-sung (Presiding Judge)