(영문) 대전고등법원 2018. 8. 10. 선고 2018노195 판결

Although there is a fact that the defendant's business of introducing Nonindicted Party 1 to singing machines while operating the sidewalk, Nonindicted Party 1 is engaged in the business of arranging sexual traffic to Nonindicted Party 2, and there is no fact that the defendant has arranged sexual traffic to Nonindicted Party 1.

B. Unreasonable sentencing

Even if the defendant's act is found guilty, the sentencing of the court below (the imprisonment of five years and forty hours, the order to complete sexual assault treatment programs, and the collection of penalty) is too unreasonable.

2. Ex officio determination

We examine ex officio prior to the judgment on the grounds for appeal by the defendant.

The main text of Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15352), which was effective July 17, 2018, provides that where a court declares a sentence of imprisonment or medical treatment and custody due to a sex offense against a child or juvenile or a sex offense against an adult, it shall issue an employment restriction order to a child or juvenile-related institution, etc. for a given period, or not to provide employment or actual labor to a child or juvenile-related institution, etc., concurrently with a judgment of a sex offense case, and the proviso to Article 56(1) provides that the same shall not apply to cases where the risk of recidivism is significantly low or where there is any special circumstance that does not restrict employment, and Article 3 of the Addenda to the Act provides that the amended provisions of Article 56 shall apply to persons who committed a sex offense before the said Act enters into force,

Of the instant cases, the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.) constitutes sex offenses against children and juveniles subject to Article 56 of the said Act, and at the same time, the instant judgment and the lower court should pronounce an employment restriction order on the Defendant. Therefore, the lower court’s judgment

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the grounds for appeal by the defendant on the ground of ex officio reversal, and the judgment below is reversed and it is again decided as follows.

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, it is 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 15(1)2 of the Act on the Protection of Children and Juveniles against Sexual Abuse (including the occupation of brokerage business for juveniles, including the occupation of brokerage business for juveniles), Article 56 of the Juvenile Protection Act, Article 30 Subparag. 2 of the Juvenile Protection Act (including the occupation of brokerage business for juveniles for profit-making purposes), Article 47 Subparag. 1 of the Employment Security Act, Article 19(1) of the Employment Security Act (a), collectively, the occupation of running free or fee-charging job placement business

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act: Provided, That the proviso to Article 42 of the Criminal Act shall apply to a violation of the Act against the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes within the scope of Article 42 of the Criminal Act concerning the punishment prescribed for a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Mediation, etc.) with the largest penalty]

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (The following circumstances considered as favorable to the reasons for sentencing)

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Additional collection:

The latter part of Article 25 of the Act on the Punishment of Acts of Arranging Sexual Traffic (the amount acquired by the defendant through the arrangement of commercial sex acts)

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. An employment restriction order;

Article 56 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (The period of restriction on employment shall be determined by comprehensively taking into account the following: (a) the defendant committed a crime of arranging sexual traffic against a juvenile on several occasions; (b) the extent and side effects of the defendant's disadvantage due to an employment restriction order; and (c) the effect of preventing sexual crimes that

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

2. Determination

A. Relevant legal principles

1) In determining the credibility of the statements made by the victim, etc. supporting the facts charged, the credibility of the statements shall be assessed in consideration of all the circumstances that make it difficult to record in the witness examination protocol, including the appearance and attitude of the witness who is going to make a statement in the open court after being sworn before a judge, and the pencing of the statements (see Supreme Court Decision 2012Do2631, Jun. 28, 2012; Supreme Court Decision 2012Do2631, Jun. 28, 2012). The contents of the statements are consistent and concrete in their major parts; there is no part inconsistent or inconsistent with the statement itself in light of the empirical rule, and there is no motive or reason to make a false statement unfavorable to the defendant; as long as the motive or reason to make a false statement is clearly revealed, it is difficult to dismiss the credibility of the statements made in the witness examination protocol, including the appearance and attitude of the witness who is going to make a statement in the open court after being taken an oath before a judge.

2) In light of the legislative purpose of the Juvenile Protection Act, the head of a business establishment harmful to juveniles, such as entertainment taverns, shall not employ juveniles for the purpose of protecting juveniles. As such, in the event that an entertainment drinking club proprietor employs employees at the relevant entertainment business establishment, he/she shall verify the age of juveniles based on resident registration certificates or other evidence of public probative value sufficient to the degree. If it is doubtful that the pictures and objects of juveniles are different from those of resident registration certificates presented by the subject, the number of juveniles are concealed in their status and age and engage in employment at entertainment business, and it is reasonable to deem that a business owner as a business owner is obliged to take additional age verification measures, such as making the children in detail and objects of his/her resident registration certificates or allowing them to open their addresses or resident registration numbers on his/her resident registration certificates, and if it is difficult to verify the age of a person subject to employment, such as failing to comply with the age verification for the reason that he/she lost his/her identification cards, the act of employing children and juveniles for the purpose of protecting children and juveniles against sexual traffic should be acknowledged or applied to this legal principle.

B. Determination

Based on the above legal principles, comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below as to the instant case, it can be recognized that the Defendant, as stated in the facts constituting a crime in the judgment, has arranged Nonindicted 1, a juvenile, to engage in sexual traffic. Accordingly, the Defendant’s above assertion is not acceptable.

1) On August 9, 2017, Nonindicted Party 1, at the investigative agency’s house from August 9, 2017 to August 11, 2017, was engaged in sexual traffic. At the time, Nonindicted Party 1, at the time, by using “○○” which is a mobile phone hosting cambling system, was going to go to a place where sexual traffic is conducted. At the time, Nonindicted Party 1, at the time, was going to go to the place where sexual traffic is conducted by using “○○”, which is one, and received 1.50 million won as the price for sexual traffic. After completion of sexual traffic, Nonindicted Party 1 again brought 30 million won among the lanes and the Defendant back to the beginning of sexual traffic, and the remaining amount was the Defendant, not Nonindicted Party 2, and the person arranging sexual traffic was the Defendant, as indicated in the judgment of the court below, and the circumstances leading up to sexual traffic, the Defendant’s method of soliciting sexual traffic and the fact that the Defendant engaged in sexual traffic would not have consistently known the aforementioned motive and the Defendant 1’s statement.

2) While Nonindicted 3, who had resided with Nonindicted 1 during the period in which the instant case occurred, made a statement consistent with the Defendant’s argument that Nonindicted 1 was not the Defendant, but Nonindicted 2, at the investigative agency, who arranged to engage in sexual traffic. However, the first statement that Nonindicted 1 was Nonindicted 2, but the police officer testified that the Defendant led to the confession of this part of the crime, and then reversed the Defendant’s statement that “Before he was aware that the Defendant was able to sing the Defendant by singing out, it was false to sing the Defendant.” ② Nonindicted 3 appears to have shown that Nonindicted 1’s resident registration certificate of Nonindicted 4 with the name similar to that of Nonindicted 1, which was 20 years old, was purchased to the Defendant as Nonindicted 1’s identification witness, while the Defendant made a statement that does not coincide with the Defendant’s statement in the process of making it difficult for the Defendant to consistently conclude that Nonindicted 2 was accompanied by Nonindicted 5 and his defense counsel in the process of making an investigation into the Defendant’s appearance.

3) The vehicle used for the instant arrangement arrangement appears to be a white SUV vehicle (vehicle registration number omitted) operated by Nonindicted 2. However, Nonindicted 1 made a statement to the effect that, when the Defendant was driving the said SUV vehicle and the said SUV vehicle, the Defendant used the said SUV vehicle from August 9, 2017 to August 11, 2017, and subsequently arranged the said SUV vehicle, the said SUV vehicle was used. The said SUV vehicle is a short period of three days only for the said two vehicles, and it is deemed that the said two vehicles were not used simultaneously at the same time; ② Nonindicted 1 made a statement to the effect that the said SUV vehicle was driven by the Defendant, and Nonindicted 2 and Nonindicted 3 used the said SUV vehicle at the same time and used the said SUV vehicle at the same time; ③ Nonindicted 2 and Nonindicted 3 used the said SUV vehicle and made a statement to the effect that it appears to have been in close to the Defendant’s business relationship with Nonindicted 3 and 2.

4) Furthermore, ① Nonindicted 1 was merely 13 years old and could not easily find it a minor, and the Defendant also stated that “Nonindicted 1 was able to be a minor” when he was first investigated by the police. ② The Defendant confirmed his identification card for the women of “Nonindicted 6,” “Nonindicted 7,” and “Nonindicted 8,” who were in his operation on the sidewalk, and confirmed their age. Nonindicted 1 did not take any such measure as to Nonindicted 1, ③ Nonindicted 3 was engaged in business, and Nonindicted 2 was also aware that Nonindicted 3 was 17 years old, and Nonindicted 3 was also aware that Nonindicted 1 was 17 years old, considering the relationship between Nonindicted 3 and 2, the Defendant was also aware that Nonindicted 3 was 17 years old, and the Defendant was 17 years old and was 17 years old.

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for not less than three years and not less than six months to 25 years;

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

【Scope of Recommendation】

In case of sexual traffic crimes under the age of 19, the Act on the Mediation, etc. of Sex Trade for Children and Juveniles, the Act on the Mediation, etc. for Sex Trade for Children and Juveniles, the Act on the Mediation, etc. of Child and Juvenile in Type 3 (Provision, etc. of a place for buying sex for business or in the information and

【Special Convicted Persons】

None

* Scope of sentence according to the standards for handling multiple crimes: Imprisonment with prison labor for not less than four years and six months;

Since the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (a brokerage business, etc.) against which the sentencing criteria are set and the crime of violation of the Employment Security Act against which no sentencing criteria are set are set and the crime of violation of the Juvenile Protection Act are concurrent crimes under the former part of Article 37 of the Criminal Act, only the lower limit of the sentencing range for the crime of violation

3. Determination of sentence: Five years of imprisonment; and

The defendant is the business of arranging sexual traffic to the non-indicted 1, who is a juvenile, or arranging them to singing and singing. The defendant's business is very serious crime that the defendant engages in arranging the juveniles to be sexually subject, and the defendant was sentenced to punishment for special injury, and committed again the crime of this case only for six months after the execution of the sentence is completed, etc., which is disadvantageous to the defendant.

However, the fact that the defendant confessions part of the crime, the period of arranging sexual traffic is relatively short, and the benefits derived therefrom are relatively little, and the circumstances favorable to the defendant that had no record of punishment for the same kind of crime prior to the instant case shall be considered in consideration of the circumstances favorable to the defendant. In addition, all of the sentencing factors shown in the pleadings of the instant case, including the defendant's age, career, character and behavior, environment, motive and circumstance of the crime, etc., shall be determined as per the

Registration of Personal Information

Where a conviction becomes final and conclusive on a crime of violation of the Act on the Punishment, etc. of Sexual Crimes against Children and Juveniles against Sexual Abuse, a defendant is a person subject to registration of personal information pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and shall submit personal information to the competent agency pursuant to Article 43 of the same Act.

The personal information registration period of a defendant is 20 years in accordance with Article 45(1)2 and (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes. In full view of the crime which causes the registration of personal information and the other crime that causes the registration of personal information, the nature of the crime and the severity of the crime, etc., the personal information registration period should not be determined more than the period according to Article 45(4) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, since it is deemed unnecessary to determine the registration period of personal information more than the period according to the sentence.

Judges of the Do Young-gu (Presiding Judge)

심급 사건

-대전지방법원 2018.4.26.선고 2017고합412

대전고등법원 2018.8.10.선고 2018노195

-대법원 2018.10.25.선고 2018도13367

원심판결

-대전지방법원 2018. 4. 26. 선고 2017고합412 판결

본문참조판례

-대법원 2008. 3. 14. 선고 2007도10728 판결

-대법원 2012. 6. 28. 선고 2012도2631 판결

-대법원 2014. 7. 10. 선고 2014도5173 판결

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