2016 Highest 1087, 1768 (Joint)

Article 5 (Violation of Rate of Commercial Sex Acts)

(b) A criminal escape;

(c) Abetting an offender;

(d) Violence;

(e) Damage to property;

1. (a) b. d. A;

Residence

Reference domicile

2.(a)

Residence

Reference domicile

3.(a)(c)

Residence

Reference domicile

Kim beneficiary, Lee beneficiary-young (each indictments), Kim Tae-ho (Trial)

Attorney ○○○ and ○○○○ (for the Defendants)

September 27, 2016

Defendant A shall be punished by imprisonment for one year, by imprisonment for two years, and by imprisonment for one year and six months.

However, with respect to Defendant A and C, the execution of each of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

To order Defendant A to provide community service for 200 hours.

Each building indicated in the separate sheet, the confiscation of which was preserved, shall be confiscated by the decision of this court from Defendant B 2016 Seocho432.

37,684,560 won from Defendant A and B, and KRW 15,83,316 from Defendant C shall be collected respectively.

To order the Defendants to pay an amount equivalent to the above additional charges.

Of the facts charged in this case against Defendant A, the prosecution against assault is dismissed.

Criminal facts

2016 Highest 1087,

1. The Defendants’ co-principal

Defendant B and C, as an internal relationship from April 3, 2015 to December 25, 2015, operated 'OO ○○○○○○○, 709, and 710' as the Defendant B’s OO-si, and installed 12 guest rooms with simple beds and three screen facilities, 110,000 won at the time of settlement, and 120,000 won at the time of credit card settlement from unspecified male customers, and the Defendants received 60,000 won, with the rest of female employees D, and had them engage in sexual intercourse or similarity with them.

In the process, Defendant B provided his commercial building as "the president," and provided his own commercial building as a place of commercial sex acts; Defendant C was called as "the leader of the team; Defendant C was in charge of customer reception, employee education and management, etc.; Defendant A was called as "the head of the office;" and Defendant A was called as "the customer reception, business cleaning, sales settlement, etc.".

As a result, Defendants conspired to act as a broker from April 3, 2015 to December 25, 2015 (Defendant C from September 2, 2015 to December 25, 2015).

2. Defendant C’s aiding and abetting an offender.

On September 9, 2015, the Defendant: (a) at the hotel-type hotel mambs of the Defendant, at the hotel-type shop, “A has been regulated twice in the police; (b) again, at the time of crackdown, A would be the owner of the police, and later, A would be paid for the payment. At the request of the Defendant, A had a false statement.

Therefore, at the ○ Police Station investigation and intelligence 1 team office on September 16, 2015, the Defendant had A conduct the business of arranging sexual traffic while acquiring and operating the above business establishment from the police officer in charge of C around August 25, 2015. The Defendant made a false statement to the purport that it is “A,” and instigated A to allow a person who commits a crime subject to a fine or heavier punishment to escape.

3. Defendant A’s criminal escape;

On September 2015, 2015, the Defendant: (a) at the hotel marina business establishment, the Defendant: (b) from the business proprietor C, “I became a crackdown on the police twice; (c) once again, I would like to say that I would be a business owner; (d) later, I would receive the payment of the consideration.”

As a result, the Defendant, while working at the said place of business on September 7, 2015, arranged and controlled sexual traffic to the police officer who pretended to be a customer, on September 16, 2015, the Defendant carried out the business of arranging sexual traffic while acquiring and operating the said place of business from C around August 25, 2015 at the investigation of the Namyang Police Station and the Intelligent 1 Team office as of September 16, 2015.

"2016 Highest 1768"

4. Damage to Defendant A’s property;

On April 23, 2016: around 05, 00 ○○○○ ○○ 0-ro, and around the road, the victim F (the 56 years of age) who is an engineer of a taxi vehicle used by the Defendant and trial expenses. While the Defendant, due to the Defendant, walked the victim’s left side side by walking at one time and assaulted the victim’s left side at one time, the Defendant attempted to report to 112 on the victim’s left side, deducted the victim’s cell phone, thereby damaging it.

Summary of Evidence

【2016 Highest 1087】

1. Each legal statement of the defendant A and C

1. Each legal statement made by the witness ○○, ○○, ○○, ○○, and D;

1. The second written statement about Defendant A in part of the interrogation protocol of the prosecution;

1. Some of the suspect interrogation records of Defendant B and C by the prosecution;

1. A police suspect interrogation protocol on September 16, 2015

1. Domestic investigation reports, investigation reports (Attachment to the copy of the register of the business place), investigation reports (referring to inquiries into the entry of the B ○○ bank account), investigation reports (the results of the monetary analysis), investigation reports (the results of the analysis of B, C, and A Smartphones Office), investigation reports (the results of the analysis of the B, C, and A Account Analysis), investigation reports (Attachment to the register of the company), investigation reports (the period of crime and calculation of the amount of revenue), investigation reports (the specified period of crime and calculation of the amount of revenue), investigation reports (the description of the suspect's criminal proceeds), investigation reports (Attachment to the statement of withdrawal of deposits into the account of the B ○○ bank), investigation reports (the document attached to the ○○ bank contract);

1. The original of real estate lease agreement, each certified copy of each register of register, telephone subscription details, the maps indicated on the location, etc. of marina branch and base station, the subscriber's reply details, the user's response details, the details of Hu○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○, the details of extracting letters, C's abstract records, C's abstract records, the details of receipt of A's monthly wage, the details of payment of a fine, the details of payment of fines, the details of receipt of cash by B by using the CD machine, C card receipt details, C's cash deposit details, the estimated payment details of female employees, the details of sales

1. On-site photographs;

【2016 Highest 1768】

1. Defendant A’s legal statement

1. A written statement;

1. Report on internal investigation, investigation report (the analysis of taxi booms) and notification of the department related to the report of the 112 Incident; 1. Application of the Acts and subordinate statutes concerning mobile phone photographs, taxi booms photographs, taxi booms photographs, and taxi booms video boom photographs;

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

A. Defendant A: Article 19(2)1 of the Act on the Punishment of Acts, such as Arranging Sexual Traffic, Article 30 of the Criminal Act (the occupation of brokerage business for sexual traffic), Article 151(1) of the Criminal Act (the occupation of criminal escape), Article 366 of the Criminal Act (the occupation of causing damage to property), and each choice of imprisonment with prison labor

B. Defendant B: Article 19(2)1 of the Act on the Punishment of Acts such as Mediation, etc. of Commercial Sex Acts; Article 30 of the Criminal Act; the choice of imprisonment

C. Defendant C: Article 19(2)1 of the Act on the Punishment of Acts of Arranging Sexual Traffic, Etc., Article 30 of the Criminal Act (the point of arranging sexual traffic), Articles 151(1) and 31 of the Criminal Act (the point of aiding and abetting an offender) and choice of imprisonment, respectively.

1. Aggravation for concurrent crimes;

Defendant A and C: the former part of Article 37 of the Criminal Act, Articles 38(1)2 and 50 of the Criminal Act

1. Suspension of execution;

Defendant A and C: Article 62(1) of the Criminal Act

1. Social service order;

Defendant A: Article 62-2 of the Criminal Act

1. Confiscation;

Defendant B: Articles 8(1)1 and 2 subparag. 2(b)1 of the Act on Regulation and Punishment of Concealment of Criminal Proceeds

1. Additional collection:

Defendants: Article 25 of the Act on the Punishment of Acts of Arranging Sexual Traffic

1. Order of provisional payment;

Defendants: Determination on the Defendants and their defense counsel’s assertion under Article 334(1) of the Criminal Procedure Act

1. Summary of the assertion

The Defendants and the defense counsel: (a) Defendant A and C jointly operated the hotel marina shop of this case (hereinafter “the instant business establishment”); and (b) Defendant B conspired with Defendant A, C to arrange commercial sex acts for business purposes; (c) Defendant B did not have conspired with Defendant A, C; (d) Defendant B is only the building site of this case; and Defendant A and C arrange commercial sex acts for business purposes at the instant business establishment.

Defendant A did not know the facts, and ② Defendant A merely worked as an employee at the instant business establishment. As such, Defendant A asserts that only the responsibility as an aiding and abetting offender is recognized for committing a crime in violation of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. (the Act on the Punishment of Commercial Sex Acts).

2. Determination

A. Whether a joint principal offense against Defendant B’s violation of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. (the act of arranging commercial sex acts) is established (1)

Article 30 of the Criminal Act provides that two or more co-offenders jointly commit a crime. For the establishment of a co-principal, a subjective element of co-principal requires the fact of implementation of a crime through functional control by a co- doctor, which is an objective element. Such a co-principal’s intent is insufficient to recognize and refrain from committing another person’s crime. However, there is no need for prior conspiracy to commit a crime plan, and there is a mutual agreement that each co-offender bears the elements of a crime or shares the elements of a crime in essence. Further, in a co-offender’s relation involving two or more co-offenders who jointly process a crime, the conspiracy is not required by law, but is formed by two or more persons who jointly intend to realize a crime, and even in cases where a combination of opinions is made in order or implicitly through several persons, there is no strict proof to acknowledge such conspiracy. However, if the defendant denies the existence of a subjective element of a crime, there is no choice but to prove the fact by means of indirect facts or circumstantial relevance in light of the nature of the crime.

In light of the above legal principles, in full view of the following facts and other circumstances acknowledged by the evidence of the judgment, Defendant B, while sufficiently aware of the fact that the instant establishment is engaged in the business of arranging sexual traffic, in collusion with the above Defendants, can be recognized as engaging in sexual traffic by running the instant establishment jointly with Defendant A and C, and thus, the Defendants and the defense counsel’s above assertion cannot be accepted.

(A) At the time of the second examination of the suspect by the prosecution, Defendant A stated that he received daily allowances from Defendant B after September 7, 2015, on which he had taken over the instant business establishment and the control over the instant business establishment, and that he had been working at the instant business establishment (see, e.g., 103 investigation records).

(B) Examining the result of analyzing the monetary content of Defendant B’s mobile phone opened in the name of the Defendant B, the details of contact between the aforementioned mobile phone and D (the opening name is Han○○○) who was an employee of the said mobile phone and the instant mobile phone, and each mobile phone used by newO appeared to have been exchanged several times from April 3, 2015 to December 25, 2015, and the location of the base station for transmitting the said mobile phone appears to be the location of the instant mobile phone.

( 다 ) 피고인 C는 검찰에서, 자신이 이 사건 업소를 2014. 12. 경 인수하기 이전부터 이 사건 업소에는 피고인 B의 명의로 가입된 신용카드 단말기가 설치되어 있었다고 진술하였고 ( 수사기록 330면 참조 ), 실제로도 피고인 B이 본인의 명의로 신용카드 단말기 2대에 가입한 내역이 나타난다. 또한, 피고인 C는 이 사건 업소에는 자신의 명의로 가입된 신용카드 단말기도 설치되어 있었음에도, 피고인 B의 명의로 설치된 신용카드 단말기를 사용하였다고 진술하였는데, 이는 경험칙상 쉽게 이해하기 어려운 사정이고, 다만, 이에 대하여 피고인 C는 그냥 이유 없이 자신의 명의로 가입된 신용카드 단말기는 사용하지 않았다고 진술하였다 ( 수사기록 329, 330면 참조 ) . ( 라 ) 피고인 B은 검찰에서, 자신이 이 사건 업소의 한켠에 있는 방에서 2007 .

7. On the other hand, Defendant B sent the instant text messages to Defendant B, who was not aware of the fact that ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Party’s 6th day before the instant text messages were sent. On the other hand, Defendant B sent the instant text messages to Defendant B, who had been in charge of managing the instant text messages on the said 1st day from December 5, 2015 to December 21, 2015, and Defendant B sent the instant text messages to Defendant B, who had been in charge of managing the instant text messages on the said 9th day from January 2, 2014 to January 6, 2016, and Defendant B, who had been in charge of managing the instant text messages on the said 1st day from January 3, 2014 to January 22, 2002.

(h) The ○○○ and the ○○○, who had been employed as an employee at the instant establishment, stated that Defendant B was aware of the fact as the president of the instant establishment in this Court.

B. Whether Defendant A’s joint principal offense was committed in violation of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. (the Arrangement of Commercial Sex Acts)

In light of the aforementioned legal principles, D, which had been employed as an employee at the instant establishment, was introduced by Defendant A as the president of the instant establishment, and stated that Defendant A had an interview with Defendant A. Meanwhile, examining the results of analyzing the telephone calls used by Defendant A, i.e., the aforementioned mobile phone and the cell phone used by Defendant A, from April 3, 2015 to April 3, 2015, among the cell phones used by Defendant A, ○○○ who was an employee of the instant establishment.

12. In full view of the fact that the details of contact with each other are revealed through several times between around 25, Defendant A can be recognized that Defendant A, in collusion with Defendant B and C, has performed a functional role in the essential part of the sexual traffic business, such as the employment of employees necessary for the operation of the instant commercial establishment, which is a sexual traffic business establishment, and management of work attitude, and thus, Defendant A and the defense counsel are liable for the crime of violating the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. (Act on the Punishment of Commercial Sex Acts of Arranging), and thus, Defendant A and

Reasons for sentencing

1. Scope of recommended sentences according to the sentencing criteria;

(a) Defendant A 1 crime (sexual traffic);

[Scope of Recommendation] The basic area of Chapter 2 of the Act on the Mediation, etc. of Commercial Sex Acts, Etc. (referring to the mediation, etc. of commercial sex acts due to business, receipt of consideration, etc.) for persons aged 19 or older.

【No Special Convicted Person】

Article 2 (Destruction of Crimes)

[Scope of Recommendation Form 1 (Property Damage, etc.)

【Special Mitigation Party】 Ad hoc Inspector

* The scope of final sentence due to the aggravation of multiple offenses: 6 months to 1 year and 7 months

* The crime of escape of criminals is not set on the sentencing criteria.

B. Defendant B

[Scope of Recommendation] The aggravated area (one year to three years) of Type 2 (Mediation, etc. of Commercial Sex Acts due to Business, Receipt of Prices, etc.) of sexual traffic in the sexual traffic crimes subject to age of 19 or older

[Special Person] A long-term or organized crime

C. Defendant C.

[Scope of Recommendation] The basic area of Chapter 2 of the Act on the Mediation, etc. of Commercial Sex Acts, Etc. (referring to the mediation, etc. of commercial sex acts due to business, receipt of consideration, etc.) for persons aged 19 or older.

【No Special Convicted Person】

* The offense of aiding and abetting an offender is not set in sentencing guidelines.

2. Determination of sentence;

A. Defendant A and C

Considering the fact that the Defendants conspired to engage in the business of arranging sexual traffic in an unlawful manner, the amount of profits therefrom was relatively large, and the Defendant C had already been punished for the same kind of crime, but again committed the instant crime, it is necessary to punish the Defendants strictly.

However, the Defendants led to the confession of most of the crimes of this case; Defendant A did not have any record of criminal punishment except for the punishment of a fine once for the crime of this case; Defendant C did not have any record of criminal punishment exceeding the fine; Defendant A agreed with the victim of the crime of causing property damage of this case; and Defendant A determined the punishment as ordered by taking into account all the circumstances, including the Defendants’ age, character and conduct, environment, motive and circumstance of the crime, and circumstances after the crime, etc.

B. Defendant B

Considering the fact that the remaining Defendants conspired with the other Defendants to engage in the business of arranging sexual traffic for a long time, the amount of profits acquired therefrom was a large amount, and even up to now, the act of denying and reflecting the crime does not seem to have been committed, and that the Defendant again committed the instant crime even though he had the record of punishment several times due to the same type of crime, it is inevitable to punish the Defendant with strict punishment.

However, for the last 18 years, the defendant has no record of punishment for the same kind of crime, and the defendant's age, character and conduct, environment, motive and background of the crime, and circumstances that are conditions for sentencing, such as the circumstances after the crime, shall be determined as the order.

Public Prosecution Rejection Parts

1. Summary of the facts charged

On April 23, 2016: around 05, Defendant A used violence at the front of the ○○○○○○○-ro ○○○○○-ro, and the victim F (the age of 56) who is an engineer of a taxi vehicle using the Defendant and the trial expenses at one time by walking the victim’s left side side, and at one time walking the victim’s left side side, at one time.

2. The reasons for dismissing the prosecution are the crimes falling under Article 260(1) of the Criminal Act, and the facts charged cannot be prosecuted against the victim’s express intent under Article 260(3) of the Criminal Act. According to the written agreement bound in the trial records, the victim may recognize the fact that he/she has withdrawn his/her wish to punish the defendant on September 6, 2016. Thus, the prosecution against this part of the facts charged is dismissed in accordance with Article 327(6) of the Criminal Procedure Act.

Judges Hah Ho-ho

A person shall be appointed.