2014Gohap118 Narcotics Control Act (franking) and the sex of children and juveniles

Violation of the Protection Act (sexual purchase, etc.)

A

Newly Inserted by Presidential Decree No. 1354, Mar. 1, 201>

Attorney BR (Korean National Assembly)

September 2, 2014

A defendant shall be punished by imprisonment for one year.

20,000 won shall be additionally collected from the defendant.

To order the defendant to pay an amount equivalent to the above additional collection charge.

Criminal facts

1. Violation of the Narcotics Control Act;

Despite the fact that the Defendant is not a person handling narcotics, the Defendant dealt with the psychotropic drugs-related clocks (one philophone, hereinafter referred to as “philophones”) as follows:

(a) Provision of philophones;

At around 13:00 on October 11, 2013, the Defendant, using “BT Mo” 206 in Seoul BS, “BU”, “BU,” a mobile condition-based Domination, performed 0.1g of philophonephone, which is contained in the 17 years of age, for a single-use injection.

(b) Handphone medication;

The Defendant, at the time and at the place described in paragraph (1), administered approximately 0.3g of philophones by inserting them into a disposable injection machine and dilution them with water, and injection them into his arms.

2. Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse;

At the date, time, and place mentioned in paragraph 1(a) of this Article, the Defendant provided 150,000 won in return for the remaining conditions to BV (n, 17 years of age), which is a juvenile, and provided sexual intercourse, thereby purchasing the sex of juveniles.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of the witness BV;

1. Statement in B B of the protocol of examination of the accused prepared by the public prosecutor;

1. Copies of each protocol of examination of suspect as to BV and B prepared by the police;

1. A written appraisal by the National Science Investigation Agency (the result of the test of maternity narcotics reaction to BV);

1. A report of investigation (verification of the accused face of BV);

Application of Statutes

1. Relevant Articles of the Criminal Act and the choice of punishment for the crime;

Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) (Article 60(1) of the Act on the Management of Narcotics, Etc. / Article 13(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (Article 60(1)2, Article 4(1)3(b) of the Act on the Protection of Children and Juveniles against Sexual Abuse

2. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act are the most severe penalty provided for in the crime of violation of the Act on the Protection of Sex Offenses of Children and Juveniles (sexual Purchase, etc.)

3. Additional collection:

The proviso to Article 67 of the Act on the Control of Narcotics, etc. [the basis for calculation: 200,000 won = 100,000 won (per time X 10,000 won) + 10,000 won (per time X 1,000 won) of the Act on the Control of Narcotics, etc.]

4. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on Defendant’s argument

1. Summary of the defendant's assertion

The Defendant did not know who is BV, and did not provide BV with a penphone or administered a penphone on his own before it, and did not purchase BV sex.

2. Determination

A. As to the instant case, there is a statement of BV containing the content that promises the Defendant to meet the terms and conditions with the Defendant, but the Defendant provided a penphone from the Defendant (hereinafter referred to as “the provision of a phiphone”) and administered the phiphone on one’s own arms (hereinafter referred to as “the fact of the phiphone medication”), the Defendant received KRW 150,000 from the Defendant for the payment of the terms and conditions met, and attempted to engage in a sexual intercourse, but did not inserted because the Defendant’s sexual organ was not generated (hereinafter referred to as “sexual purchasing”). However, as the Defendant denies the entire facts charged, the issue of the instant case is whether it is the credibility of the BV’s statement directly consistent with the facts charged.

B. When comprehensively considering the following circumstances revealed in the argument of this case, it is deemed that the statements of BV, which directly correspond to each of the facts charged of this case, are reliable to the extent that they exclude a reasonable doubt.

1) From the investigative agency to this court, BV consistently states the following contents: (a) the Defendant given phiphones to the Defendant for a disposable injection machine (the point of provision of phiphones); (b) the Defendant also injected phiphones into one’s own arms (the point of provision of phiphones), and (c) the Defendant received 150,000 won in return for the remainder of the terms and conditions from the Defendant, and intended to have sexual intercourse, but did not inserted because the Defendant’s sexual organ was not created.

2) BV은, (가) 피고인과 만난 경위에 관하여, "BU"이라는 휴대폰 애플리케이션을 통해 15만 원에 조건만남을 하기로 하였다', (나) 피고인의 인상착의에 관하여, '키가 작고 마르고 반곱슬 머리에 나이가 좀 많았다. 말할 때마다 고개를 흔드는 버릇이 있었다', (다) 피고인으로부터 필로폰을 제공받은 계기에 관하여, '피고인이 성관계를 가지기 전에 "이럴 땐 술 한 잔 먹어야 하는데"라고 말하여, 제가 "그러게 말이에요"라고 말하자, 피고인이 "너가 뭘 알아"라고 말해서, 제가 "무슨 술인지 알고 말하는 거에요."라고 말하니, 피고인이 "술하는 여자들은 한 번 웃고 밑에 만져보면 다 안다"라고 말했다. 제가 "하실 거면 하면 되죠"라고 말하자, 피고인이 "혼자 하기 미안해서 그러지"라며 노스페이스 등산가방에서 종이로 접어져 있던 필로폰을 꺼냈다'(수사기록 32쪽), (라) 피고인과의 성관계 과정에 관하여, '(필로폰을 투약한 다음) 성관계를 하려고 피고인이 삽입을 시도했으나 피고인의 성기가 발기되지 않아 완전한 삽입은 이루지지 않았다'(수사기록 33쪽)라고 진술하였다. 위와 같은 BV의 진술은 매우 구체적일 뿐만 아니라, 직접 경험하지 않으면 진술할 수 없는 내용이다.

3) BV stated that the Defendant’s photograph was “WV’s height of the offender’s appearance before seeing the Defendant’s photograph was written as “(42,84 pages of the investigation record) and the Defendant’s appearance was written as “(42,84 pages of the investigation record).” Not only is the appearance of the offender stated by BV is considerably specific, actual, consistent with the Defendant’s appearance, but also the BV, as the Defendant’s photograph and actual form were confirmed, identified as the Defendant’s witness.

4) In this court, BV stated that “The reason why the criminal is the defendant is the defendant is that there is a brush for the defendant to scrush the scrush whenever the defendant speaks.” The above characteristics are consistent with the defendant’s brush observed in this court.

5) The results of the narcotics reaction test conducted by the National Scientific Investigative Research Institute on the hair of BV (receiving on November 22, 2013), and the reaction of Meteptopian and Meptoptopian training conducted from the hair to 9 cm. It can be known that BV administered phiphones from February 2013 to November 2013, including the date of the instant crime.

6) BW stated that “BX (BY) grants five times the Defendant (Z) and bought phiphones to the low-income bracket, the household department stated “BY (BY)” as “BY (BY)”, and that BX, upon request of BX on July 16, 2013, sent phiphones directly to the Defendant (243 pages of investigation records). The aforementioned statements in BW support the credibility of BV’s statements.

C. On the other hand, the Defendant visited Seongdong-gu on the day on which each of the facts charged in the instant case was committed, and argued to the effect that “The Defendant did not commit the same crime as the facts charged,” but in light of all circumstances, such as the time, place, details, and method of the crime in each of the facts charged in the instant case, the above facts alleged by the Defendant do not affect the aforementioned judgment.

3. Conclusion

Thus, each of the facts charged in this case is fully recognized by the statements of reliable BV, and the defendant's above assertion is without merit.

Reasons for sentencing

1. Scope of the recommended sentencing criteria: Imprisonment with prison labor for a period of one year to four years; and

(a) Basic crime: Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (1) in its holding;

Type 1 (Act of Purchasing Child or Juvenile's Sex) shall be the basic area ( Imprisonment between October and June) of sexual traffic crimes subject to age 19.

【Special Convicted Person】

(b) Second crime: the crime of violation of the Act on the Control of Narcotics, etc. (flag) by using phiphonephones;

Type two basic areas (one year to two years), such as trade mediation, etc. (one year of imprisonment)

【Special Convicted Person】

(c) Third crime: the crime of violation of the Act on the Control of Narcotics, etc. (flavoon) by phiphone medication;

Simple possession, etc. of medication shall be the basic area of category 3 (f) (limited to imprisonment of 10 months to 2 years).

【Special Convicted Person】

(d)Standards for handling multiple crimes: one year to four years of imprisonment (the upper limit of basic crimes) =2 years + 2 years (the upper limit of crime No. 2) X 1/2 + 2 years (the upper limit of crime No. 3) X 1/31;

2. Determination of sentence;

A. Although the Defendant is an adult with a social responsibility to protect children and juveniles so that they can have a sound sexual ethics and to lead them to a correct way, such crime is very poor in that he/she purchased the sex of children and juveniles at the time to form a sexual identity and values, such as the written in the judgment. In particular, in the crime purchasing the sex of children and juveniles, he/she provided a penphone to children and juveniles and administered a penphone for himself/herself, and considering the adverse impact of narcotics on people's health and social safety, the Defendant's responsibility is considerably heavy. The Defendant's strict punishment against the Defendant is inevitable.

B. The above circumstances comprehensively consider the Defendant’s age, character and conduct, environment, family relationship, the background and means of the instant crime, and the circumstances after the instant crime, etc., and determine the sentence as ordered by the Disposition.

Registration of Personal Information

Where a judgment on a crime of violation of the Act on the Punishment, etc. of Sexual Crimes becomes final and conclusive, the Defendant is a person subject to the recording of personal information, etc. pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus, is obligated to submit personal information to the competent agency pursuant to Article 43

Judges of the presiding judge;

Judges Ha Sung-woo

Judge Park Sang-hoon

1) In the case of "sexual traffic crime", the sentencing guidelines shall apply only to the case against which a prosecution was instituted after July 1, 2014. This case was instituted on May 29, 201, and thus, the sentencing guidelines for "sexual traffic crime" are not applicable, but the sentencing guidelines for "sexual traffic crime" shall be referred to the above sentencing guidelines for the decision of sentencing.