(영문) 서울중앙지방법원 2017.10.26. 선고 2017고합872 판결

However, for two years from the date this judgment became final and conclusive, the execution of the above punishment against Defendant B shall be suspended.

Defendant A shall be ordered to complete a program for the prevention of commercial sex acts for 80 hours.

Seized evidence Nos. 1 through 3 shall be confiscated from Defendant A.

170,000 won shall be collected from each of the Defendants.

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

Reasons

Criminal History Office

1. The defendants' joint principal acts - Violation of the Punishment of Arrangement of Commercial Sex Acts, etc. Act;

No person shall arrange, solicit, induce, or compel an unspecified person to engage in sexual intercourse or other similar sexual intercourse in return for receiving or promising to receive money, valuables, or other property benefits from such an unspecified person.

Nevertheless, when the Defendants conspired to engage in commercial sex acts in Felel located in Gwanak-gu in Seoul Special Metropolitan City around July 30, 2017, and become aware of the fact that G had experience in engaging in commercial sex acts in the past and had been released from the past, the Defendants would not be obliged to engage in commercial sex acts in order to pay money, and to ask G to live together with our ditch condition? Whether the Defendants would have no idea to meet our ditch condition? At the same time, the Defendants solicited to engage in commercial sex acts while entering the Defendant’s 3 (H) car in Seoul Special Metropolitan City from around July 30, 2017 to August 1, 2017, after receiving from the Defendant’s SM3 (H) to arrange commercial sex acts using the mobile phone and arrange the purchase of sexual sex acts to receive the average amount of 130,000 won from the new members of Seoul Special Metropolitan City 14,000 won from the average number of men to the 14th day of new members.

Accordingly, the Defendants conspired to commit acts such as arranging sexual traffic for business purposes.

2. Defendant A - Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.);

No person shall arrange any act of purchasing sex of a child or juvenile or provide intermediary information in an information and communications network.

Nevertheless, around 04:00 on August 2, 2017, the Defendant expressed his/her intention to engage in sexual traffic (i) while seeking to engage in sexual traffic through mobile phone hosting i.e., sexual traffic in order to engage in sexual traffic, the Defendant agreed with the J to receive KRW 15,00,000 out of the price of sexual traffic in return for providing vehicles, tobacco, etc. as intermediary fees.

Accordingly, the Defendant posted commercial sex acts advertising writing on the mobile phone Doctrine Doctrine I, recruited sex buyers, and let J receive KRW 90,00 from L hotel in Jung-gu in Seoul, Jung-gu, Seoul and receive KRW 10,00 from J as intermediary fees, and received KRW 10,00 from J.

As a result, the defendant assisted the purchase of sex of children and juveniles as a business.

Summary of Evidence

1. Defendant B’s legal statement

1. The defendant A's partial statement

1. J. Each written statement of amnesty against G;

1. Records of seizure and the list of seizure;

1. Photographs, entrance records, and text messages at the time of arranging sexual traffic;

1. A copy of each text message;

1. Text messages between A, B, and G;

1. Text messages between G and A;

1. Customers and text messages at the time of arranging sexual traffic to minors A;

Application of Statutes

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

○ Defendant A: Article 19(2)1 of the Act on the Act on the Acts of Arranging Sexual Traffic, Article 30 of the Criminal Act (the occupation of arranging sexual traffic, comprehensively including the occupation of arranging sexual traffic), Article 15(1)2 of the Act on the Protection of Children and Juveniles against Sexual Abuse (the occupation of arranging sexual traffic)

○ Defendant B: Article 19(2)1 of the Act on the Acts of Arranging Sexual Traffic, Article 30 of the Criminal Act (the occupation of the business of arranging sexual traffic, including the occupation of the business of arranging sexual traffic)

1. Aggravation for concurrent crimes;

○ Defendant A: Aggravation of concurrent crimes to the extent that the punishment of Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act is added to the punishment of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.)

1. Discretionary mitigation;

○ Defendant A: Articles 53 and 55(1)3 of the Criminal Act (The following consideration is given to the favorable circumstances among the reasons for sentencing)

1. Suspension of execution;

○ Defendant B: Article 62(1) of the Criminal Act (The following consideration has been made more favorable to the reasons for sentencing)

1. Order to complete programs;

○ Defendant A: Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Confiscation;

○ Defendant A: Article 48(1)1 of the Criminal Act

1. Additional collection:

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

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on the assertion of Defendant A and his defense counsel

1. Summary of the assertion

A. Defendant A was only involved in the act of arranging sexual traffic as stated in the crime No. 1 as indicated in the judgment, and was not involved in sexual traffic from August 1, 2017 to July 31, 2017.

B. Although Defendant A has provided arranging sexual traffic to G and a minor J, it is not a "act of arranging sexual traffic" or "act of arranging sexual traffic for children or juveniles" in the course of business.

2. Determination

A. Whether Defendant A was involved in the act of arranging sexual traffic on August 1, 2017

1) Relevant legal principles

In the case of co-principals of conspiracys, when one of the solicitors has left from the relation of conspiracys before the others reach the execution thereof, he/she shall not be held liable as a co-principal with respect to the subsequent acts of the other recruiters. However, the deviation from the relation of conspiracys is necessary to resolve the functional control of the conduct that the recruiter takes charge of the conspiracys. As such, when the recruiter participates in the conspiracy and has an impact on the execution of the other recruiters, he/she shall not be deemed to have left the relation of conspiracys unless he/she has removed the influence on the execution, such as actively endeavoring to prevent the crime, etc. (see, e.g., Supreme Court Decision 2008Do1274, Apr. 10

2) Determination

In light of the following circumstances acknowledged by the evidence of each time, Defendant A cannot be deemed to have left from the public contest solely on the ground that Defendant A was not directly involved in the brokerage of sexual traffic on August 1, 2017, and thus, Defendant B’s crime of arranging sexual traffic on August 1, 2017 should bear the responsibility for the joint principal offender with regard to the crime of arranging sexual traffic on August 1, 2017. Accordingly, Defendant A and his/her defense counsel’s assertion

① On July 29, 2017, Defendant A sought a house through “I,” a mobile phone hosting display room, and Defendant B and G had a sexual intercourse around July 30, 2017, and around 00:00, Defendant B had a sexual intercourse with Defendant B.

② Defendant B went out of the telecom and met Defendant A. The Defendants her talked about G, and Defendant B asked Defendant B about how to take a sexual traffic to G in response to the defective proposal that Defendant B would first take place in the sexual traffic. In response, Defendant B asked Defendant B about what kind of money needs to take in order to get a house to G, and that G began arranging sexual traffic by accepting the proposal.

③ 피고인 A은 2017. 7. 31. 00:24경 피고인 B에게 "빨리 I을 돌려라아악 우리 월 요일이랑 화요일이틀밖에 못하삼"이라는 N 메시지를, 00:30경 재차 "오늘내일 뽕뽑아 야하니까 강제로시킬기삼"이라는 N 메시지를 보냈는데, 결국 피고인 A 역시 화요일인 2017. 8. 1.까지 성매매알선을 할 것으로 예정하고 있었던 것으로 보인다.

④ 피고인 A은 2017. 8. 2. 09:52경 피고인 B에게 G은 무엇을 하고 있는지 물어보는 N 메시지를 보냈고, 이에 피고인 B이 "모텔에 처박아두고 도망~ 이재 갠 끝이삼 ㅋㅋㅋㅋㅋ 오늘 뽕다뽑앗삼"이라고 답장하자 수입이 얼만지 물어보기도 하였다.

⑤ Even according to the Defendant’s assertion, Defendant A did not have any intention to eliminate the influence on the implementation by simply engaging in the act of arranging sexual traffic at the time of August 1, 2017, and by actively endeavoring to restrain Defendant B from committing the crime. Thus, it cannot be deemed that Defendant A left the public contest relationship.

B. Whether each of the instant acts of arranging sexual traffic is "business" or "business"

1) Relevant legal principles

“Business” means a case where a certain act is conducted repeatedly or repeatedly with intent to continue such act (see, e.g., Constitutional Court Order 2011Hun-Ga1, Oct. 25, 201). Whether such act constitutes a business ought to be determined according to social norms by comprehensively taking into account various circumstances, such as the repetition of an act, the continuity of the act, the existence of business nature, etc., its purpose and scale, the number of times, the period, and the manner of the act. Not only repeating the same act but also the case where a repeated act is continued, such act may constitute a single act with intent to continue the same (see, e.g., Supreme Court Decisions 2003Do935, Jun. 13, 2003; 2012Do4390, Jul. 12, 2012).

2) Determination

In light of the above legal principles, the Defendants’ act of arranging commercial sex acts with the business of arranging commercial sex acts, arranging commercial sex acts, the Defendants’ roles and attitudes in the course of commercial sex acts, and distributing and managing the proceeds of commercial sex acts, which are acknowledged by the evidence, etc. as follows: (a) the Defendants’ act of arranging commercial sex acts with the business of arranging commercial sex acts; and (b) Defendant A’s act of arranging commercial sex acts with the business of arranging commercial sex acts for children and juveniles

A) The part concerning the crime of violating the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc.

① In order to seek a house from G, the Defendants asked G to what extent they need money, and the Defendants were considered to have started sexual traffic with the consent of G.

② The Defendants determined KRW 100,00 and KRW 150,00 at one time with respect to the price of G and sexual traffic, and agreed on the distribution of the price of sexual traffic and profits by dividing the said price of sexual traffic to G with the intent to use it to seek a house of G and distributing it to the Defendants.

③ When Defendant B recruited gender-purchase men together with G and securing gender-purchase men, the Defendants distributed a role in the form of moving Defendant B to Defendant B’s vehicle after Defendant A collected her maternity, and Defendant B transferred to Defendant B’s vehicle.

(4) On July 31, 2017 and August 1, 2017, the Defendants committed three acts of arranging sexual traffic during the three short term and have little number of times. However, the Defendants’ failure to commit the act of arranging sexual traffic to G is to raise money by obtaining loans from G in the name of G instead of taking a large risk burden. The Defendants’ refusal to commit the act of arranging sexual traffic to G is deemed to have been committed without having been contacted by G before the Defendants’ discontinuance to commit the act of arranging sexual traffic.

B) The part on the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.)

① On August 2, 2017, Defendant A written the same article as “I,” and the J agreed to report the above article and contact Defendant A with Defendant A to work in the south of the conditions.

② On August 2, 2017, Defendant A determined the amount of money and the amount of money distributed to Defendant A, which is KRW 100,000 won for commercial sex acts once, and KRW 160,000,000,000,000,000,000 for commercial sex acts twice. Defendant A asked whether the amount of money and the amount of money distributed to Defendant A, at the time when the said decision was made to distribute profits, could not work every day to J. At the time of the said decision to distribute profits. Defendant A responded to the purport that “The J would be able to punish KRW 20,00,000,00 if the principal business is easy, and that Defendant A would be able to punish the amount of money for commercial sex acts. In light of this, Defendant A appears to have been the intention to continue commercial sex acts.

③ At around 08:40 on August 2, 2017, Defendant A and J moved to a telecom using Defendant A’s vehicle. Defendant A contacted with a large number of unspecified males, using “T” at the above telecom, set the terms and conditions of sexual traffic, price, etc., and notified J of the type of vehicles, clothes, shapes, etc. of males purchased.

④ In fact, Defendant A received KRW 10,000 out of the amount of sexual traffic as a profit in accordance with the agreement between J.

Reasons for sentencing

1. The scope of punishment by law;

(a) Defendant A: Imprisonment for three years and six months to eighteen years and six months;

B. Defendant B: Imprisonment of one month to seven years;

2. Scope of recommendations according to the sentencing criteria;

A. Defendant A

1. Class 1 crime: Crimes of violating the Act on the Protection of Children and Juveniles against Sexual Abuse;

[Determination of Types] Commercial sex acts, commercial sex acts subject to the age of 19, arrangement of commercial sex acts for children and juveniles, etc., Type 3 (Provision and intermediation of places of selling sex for business purposes, or provision of brokerage information in information and communications networks, etc.)

[Special Esponsor] Advertising activities or good offices using high radio wave media

[Scope of Recommendation] Six years from 10 years to 10 years (Aggravation)

2. Second crime: Crimes of violating the Punishment of Arrangement of Commercial Sex Acts, etc. Act; and

[Determination of Types] Commercial sex acts, commercial sex acts subject to 19 years of age or older, mediation of commercial sex acts, etc., and Type 2 (Mediation, etc. of Commercial Sex Acts by Receiving Prices for Business

[Special Esponsor] Advertising activities or good offices using high radio wave media

[Scope of Recommendation] One year to Three years (Aggravated Field)

3) The scope of final sentence due to the aggravation of multiple offenses: Imprisonment of up to 6 years to 11 years (up to 10 years to 1/2 of the upper limit of crime No. 1 + up to 1/2 of the upper limit of crime No. 2)

B. Defendant B

[Special Esponsor] Advertising activities or good offices using high radio wave media

[Scope of Recommendation] One year to Three years (Aggravated Field)

3. Determination of sentence;

The crime of this case is an act of arranging sexual traffic and arranging the act of purchasing the sexual identity of a juvenile by Defendant A as a business. The business of arranging sexual traffic is a serious illegal act that undermines the sound sexual culture and good morals by commercializing the female sex. In particular, the business of arranging sexual traffic of children and juveniles, which is subject to protection by being called sound members of our society, has a significant adverse social effect on the society. Defendant A even though they are at the age and location to protect the juvenile, even though they are at the age and location to protect the juvenile, up to the business of arranging the juvenile to engage in sexual traffic. Since there is a significant adverse effect that may affect the juvenile who is a juvenile who has formed sexual identity and values, it is highly necessary to prevent such act from being socially.

However, Defendant A did not have any record of punishment in addition to those subject to punishment once as a suspended sentence, and Defendant B is the first offender. In particular, Defendant B led to confession and reflects all the crimes of this case, and Defendant A also recognized and reflected most of the overall facts. In addition, the period of each of the crimes of this case is not much more than a day and a short period of time, and the amount of profit acquired by the Defendants is relatively small.

In addition, the defendants' age, occupation, character and conduct, environment, motive, means and result of each of the crimes of this case, and the circumstances after the crime are committed, etc., shall be determined by deviating from the lower limit of the recommended sentencing guidelines and by the order.

Registration of Personal Information

Where a conviction becomes final and conclusive on a crime committed in violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (a brokerage business, etc.), the defendant shall be 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 be obligated to submit personal information to the competent agency pursuant to Article 43

It is so decided as per Disposition for the above reasons.