2017Gohap1205 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

[Judgment of the court below] Specific Crimes No. 5

Violation of the Act on the Punishment, etc. of Specific Crimes (Kidnapping, Inducement, etc.)

1. B

2. C

3. A;

Lee Jong-tae (Court) (Court of First Instance), Kim Jong-Un (Court of Justice)

Law Firm D (For the defendant)

Attorney E, F, and G

April 13, 2018

Defendant B and C shall be punished by imprisonment for five years, and by imprisonment for two years and six months, respectively: Provided, That with respect to Defendant A, the execution of the above sentence shall be suspended for three years from the date this judgment becomes final and conclusive.

Criminal facts

Defendant B is the owner of the ‘I' golf driving range in Gwangju City H, Defendant C is the wife of Defendant B, and Defendant C is the birth of Defendant C.

1. Defendant B and C purchased shares of a specific company on June 1, 2017 with the victim’s 1st 7th 1st son of the 201st son of the 201st son of the 20th son of the 201st son of the 1st son of the 1st son of the 1st son of the Republic of Korea, and the 1st son of the 1st son of the 1st son of the 1st son of the 206th son of the 1st son of the 206th son of the 1st son of the 206th son of the 1st son of the 206th son of the 1st son on the 1st son of the 1st son on the 1st son of the 1st son on the 1st son on the 1st son of the 1st son on the 10th son of the 17th son of the son.

피고인 C는 2017. 10. 24. 저녁경 인천국제공항에서 서울 강남구 도곡동으로 오는 길에 피해자 M에게 "언니 남편이 추천한 주식을 샀는데 손해를 크게 보았다. 책임을 물을 생각은 없지만, 돈이 필요하니 4억 정도 빌려주어야 하겠다."라고 이야기하여 2017. 10. 25. 피해자 M으로부터 피고인 C의 하나은행 계좌로 5,000만 원을 송금받았다. 피고인 B은 피해자 M의 불안감을 가중시켜 피해자 M으로부터 돈을 더 받아내기 위해서 피해자 K과 피해자 M이 서로 연락을 하지 못하도록 피해자 K의 휴대폰을 뺏기로 마음먹고, 2017. 10, 30. 07:47경 인도네시아에 있는 A에게 'N아(A) K 전화기 주지 말고, 오늘 돈 못 받으면 누나1) 갈 거야, 연락 안 되게 갖고 있어요.'라는 문자메시지를 보내 A으로 하여금 피해자 K의 휴대폰을 빼앗고 피해자 K과 피해자 M이 연락을 할 수 없게 하였고, 피고인 C에게는 2017. 10. 30. 09:24경 '저번처럼 개지랄해야지, 여자한테 들이대야되, K 걸어, 지금 입금하라 하고, 틈을 주면 안돼, 절대 이 새끼는 안줘, 오천도 여자가 겁먹어서 그냥 준거야, 여자는 자식이 있어서 준다.'라는 문자메시지를 보냈으며, 이에 피고인 C는 2017. 10. 30. 서울 강남구 빌딩 1층 'P' 커피숍 및 2017. 10. 31. 13:00경 Q건물 B동 R에서 위와 같은 취지로 피해자 M에게 이야기하여 2017. 10. 31. 피고인 C의 하나은행 계좌로 1억 원을 교부받았다.

At around 22:00 on October 31, 2017, Defendant B continued to take part in the Victim K in Indonesia, and there is no need for the victim M. to do so. The principal and the share account are only given. In short, if it is impossible to repay by means of a bond, Defendant B may not be able to take advantage of the type of loan, but shall not take advantage of the type of scar scarcity, and shall not take any contact, after making the deposit, demand the victim M to pay additional money. Accordingly, the Defendants conspired to attract the victim K, followed the victim’s mother M. to demand money from the victim M. by using the risk of the safety of the victim K, and acquired KRW 150 million from the victim M.

2. Defendant A

On October 30, 2017, around 07:47, the Defendant: (a) took the words “N (A) K phone from B” as in the preceding paragraph; (b) took the words “B and C, in the event of any shortage of money, you need to come back and come to contact; and (c) provided, “B and C, despite being aware of the concern that the mother M of the victim would be at the risk of the safety of K, in order to commit a crime demanding money from the victim; and (d) provided, in response to B’s request, the Defendant aided the victim K’s cell phone and prevented contact between the victim K and the victim, thereby facilitating such crime.

Summary of Evidence

1. The Defendants’ partial statements in the first trial record;

1. The statements of witnesses M and K in the second trial records;

1. Statement by the prosecution concerning L;

1. Each police seizure record and the list of seizure;

1. A report on the analysis of digital evidence;

1. A copy of a specification of transactions or a loan certificate;

1. Domestic investigation reports (referring to Kakao Stockholm related to a suspect C), investigation reports (Attachment B text messages), investigation reports (referring to letters sent by B to the victim's mother in Indonesia), investigation reports (verification of the details of suspect's C Account), investigation reports (verification of the reservation details of air tickets), investigation reports (verification of the details of seized digital information), investigation reports (report on attachment of the details of victim's and suspect's entry into and departure from Korea), investigation reports (report on attachment of the contents of text from among the results of suspect's cell phone sirens);

Application of Statutes

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

A. Defendant B and C: Article 5-2(2)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 287 and 30 of the Criminal Act (generally, choice of each limited term of imprisonment)

(b) Defendant A: Article 5-2(2)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 287 and 32(1) of the Criminal Act

1. Aid and mitigation;

Defendant A: Articles 32(2) and 55(1)3 of the Criminal Act

1. Discretionary mitigation;

Defendants: Articles 53 and 55(1)3 of the Criminal Act (The conditions favorable to the reasons for sentencing below)

1. Suspension of execution;

Defendant A: Article 62(1) of the Criminal Act (The following consideration is made for the reason of sentencing)

Judgment on the Defendants and defense counsel's assertion

1. Summary of the assertion

A. The three children of Defendant B and C and the victim K left the Indonesia with Defendant A (hereinafter “the instant Indonesia trip”) are merely planned regardless of the purpose of inducing the victim K, and Defendant B and C do not induce the victim K to Indonesia in advance. Furthermore, Defendant B’s act of not returning the victim K to the Republic of Korea on the scheduled date is deemed as inducement by omission, and this cannot be deemed as unlawful. Thus, the crime of inducing minors by omission cannot be established.

B. The amount of KRW 150 million that Defendant C received from the victim M is merely a loan to Defendant C by the victim M, and Defendant B and C does not acquire KRW 150 million using the victim M concerns over the safety of the victim K.

2. Whether Defendant B or C conspireds to induce the Victim K

A. Relevant legal principles

In the case of joint principal offenders who jointly process two or more persons and commit a crime, the conspiracy or conspiracy does not necessarily need to be made explicitly, but may be made objectively and implicitly, but in any case, the combination of intent to jointly process and realize it. In a case where the defendant denies the criminal intent together with the conspiracy of the defendant, the facts constituting such subjective elements are to be proved by the method of proving indirect facts or circumstantial facts which have a substantial relation with the criminal intent due to the nature of the object, and what constitutes indirect facts should be determined by the method of reasonably determining the link of facts based on the close observation or analysis power based on normal empirical rule.

Supreme Court Decision 2005Do8645 Decided February 23, 2006, etc.

The crime of minor freedom under Article 287 of the Criminal Code refers to the act of moving a minor from the free living relationship or protection relationship to his/her or a third party under the factual control, by inducing the minor to escape from such relationship with the minor by deception or cruel means of deception. Here, a factual control refers to a physical and substantial control relationship with respect to the minor (see, e.g., Supreme Court Decision 98Do690, May 15, 1998).

B. Determination as to whether there is a public offering

In light of the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court, Defendant B and C can be confirmed as indicated in its reasoning that, if the Victim K leaves Indonesia before the departure of the Indonesia, Defendant B and C conspired to receive a return of the amount of damages upon L’s recommendation from the victim E of the Victim K, which is likely to ensure the safety of the Victim K at that time.

1) On June 2017, Defendant C knew that Defendant B, her husband, was aware of the purchase of the shares of the Company recommended by the Victim K’s father L, and he also purchased the said shares, separate from Defendant B, upon the recommendation of the Victim K’s Victim’s Ma. The her mother, her mother, her mother, and her mother, and Defendant A, who is the birthee, also purchased the said shares. Accordingly, Defendant C was well aware of the situation in which not only the her mother and her mother purchased the said shares due to the continuous decline of the share price, but also Defendant B was able to have a big loss.

2) In such circumstances, around October 2017, Defendant C asked whether a person close to Defendant A would receive money in question, and sought ways to receive money from Defendant C by arranging specific methods to receive money in the Kakakao Stockholm message, such as holding out the way to receive money (Article 772, 801 of the Investigation Records);

3) 피고인 C는 2017. 10. 24. 18:10경 피해자 K이 인도네시아로 떠나기 전까지는 피해자 M에게 돈을 요구하지 않다가, 피해자 K을 인도네시아로 떠나보낸 직후 피해자 M에게 'L이 추천한 주식을 사서 크게 손해를 봤으니, 4억 정도를 빌려달라'고 말하며 돈을 요구하였다. 이때 피고인 C는 피고인 B에게 '빨리 와', '돈 받게 1억이라도 챙겨', 'K 엄마 있고, 동생은 밖에 있는 듯' 등의 내용으로 계속 문자메시지를 보냈고, 피고인 B은 '지금 간다', 'ㅇㅋ(오케이)'라고 답을 하였으며, '난리 쳤다고 했다'는 피고인 C의 문자메시지에 대하여 '난 모르는 거지'라는 질문(피해자 M이 피고인 B이 관여되어 있다는 것을 모르는지 묻는 의미로 보인다)을 하자 피고인 C가 '아니', '너 다 아는 거야'라고 답변을 하는 등 당시 상황을 공유하였다(수사기록 제700~703쪽). 4) 피고인 B은 2017. 10. 30, 09:24경 피고인 C에게 '저번처럼 개지랄해야지, 여자한테 들이대야되, K 걸어, 지금 입금하라 하고, 틈을 주면 안돼, 절대 이 새끼는 안줘, 오천도 여자가 겁먹어서 그냥 준거야, 여자는 자식이 있어서 준다.'라는 문자메시지를 보내 피해자 M이 피해자 K의 안전을 염려하는 것을 이용하여 피해자 M에게 돈을 요구하도록 지시하였는바, 위 문자메시지의 내용에 비추어 보면, 피고인 C는 2017. 10. 24.경 피해자 K이 인도네시아로 떠난 직후 피해자 M에게 돈을 요구할 때에도 피해자 M이 피해자 K의 안전을 염려하는 상황을 이용하였던 것임을 추단할 수 있다.

5) On October 27, 2017, at around 08:54, Defendant B confirmed the text message sent and received by the victim K and the victim M through Defendant A, and identified whether the victim M knows a hotel with the victim K, and around 07:47 on October 30, 2017, Defendant B sent a text message “Na (A) K call to Defendant A,” and, at around 07:47, Defendant B sent the text message, “I need to keep the victim K’s cell phone and make it possible for the victim K and M to communicate by cutting off the victim K’s cell phone (Article 802-804 of the Investigation Record).

6) At the prosecution, Defendant C stated in the police investigation that “The Defendant B stated that “K would receive money from M at that time, if you go to Indonesia, and would be appropriate?” The Defendant stated that “I would like to say, I would like to say,” “I would like to answer?” (Article 627 of the Investigation Records).

C. Determination as to inducement

The following circumstances acknowledged by the evidence duly adopted and investigated by this court: (a) Defendant B and C were in the position to determine the schedule of the Indonesia trip or the victim K's wife, etc. through Defendant A, who is a family member; (b) The victim K, who is merely 11 years of age, is in fact impossible to freely return to the victim K's original living relationship or protection relationship; (c) the victim K's guardian is unable to protect and supervise the victim K without going through the victim K's implied hotel anywhere; and (d) the actual Defendant B could not monitor the text messages sent to and received by the victim K through the Defendant, or prevent contact with the victim M by taking the cell phone of the victim K; and (e) Defendant B and C could easily have decided whether to travel with the victim K by directly cancelling the victim's right to return to Korea; and in light of various circumstances, Defendant C and the victim's personal relationship may have been transferred to the victim or the victim's personal relationship with the victim, and thus, Defendant C and the victim's personal relationship may have been transferred to the victim.

D. Sub-committee

After all, Defendant B and C may recognize the fact that: (a) as Defendant B and C conspired to conceal the purpose of the above B B and had the victim M and K take over and let Defendant A take over the victim K while boarding the aircraft; (b) thereby inducing the minor victim K under the age of 13 by allowing the defendant to take over the victim K; and (c) thus, the Defendants and the defense counsel do not accept this part of the assertion (the Defendants and the defense counsel are merely acts of not having Defendant B return to the victim K on the scheduled date, and thus, they do not constitute a crime of inducing minors. However, even if it is deemed that Defendant B, C, by deceiving the victim M and K, had the victim K take over and had the victim K take over to the aircraft on board the aircraft, the above assertion is not accepted.

3. In light of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the court as to whether Defendant B and C obtained KRW 150 million using the victim M concerns over the safety of the victim K, and the fact that Defendant B and C received KRW 50 million from the victim M on October 25, 2017, using the victim M concerns over the safety of the victim K after inducing the victim K, and using the victim M concerns over the safety of the victim, the Defendants and the defense counsel’s allegation in this part is rejected.

1) As seen earlier, Defendant B and C conspired with the victim M to attract the victim M to India for the purpose of demanding money by using the risk that the victim M is likely to be safe, and Defendant C’s demand and acquisition of money from the victim K immediately after the victim K left Indonesia constitutes an act of realizing the above purpose.

2) Defendant C had a talk to the effect that Defendant C would be able to keep the victim M without giving money to Defendant B without giving money to the victim M in fact under the actual control by inducing the victim K. Even though Defendant C did not mention directly to the victim M, it seems that the victim M would have no choice but to put about a concern about the safety of the victim K, who is unable to directly protect and supervise the victim in Indonesia. The victim M also stated in this court that Defendant C could have seen the above horses from Defendant C and actually Defendant B might have been able to do harm to the victim K.

3) Even if Defendant C took the form of lending money from the victim M, insofar as the reason why Defendant C borrowed money is likely to cause the safety of the victim K, it does not interfere with the establishment of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (the crime of abduction and inducement for profit).

Reasons for sentencing

1. The scope of punishment by law;

(a) Defendant B and C: Imprisonment for each of five years to fifteen years;

B. Defendant A: Imprisonment of two years and six months to seven years and six months;

2. Scope of recommendations according to the sentencing criteria;

A. Defendant B, C

[Determination of Punishment] Request for property, etc. after the abduction and inducement of a minor as a result of the crime of abduction and inducement of a minor. The acquisition of property, etc. shall be made in the case of acquisition.

[Special Aggravation] Aggravations: Where the victim is under 13 years of age or is born due to physical or mental disability;

[Scope of Recommendation] Aggravation, 10 years to 15 years

B. Defendant A is a aiding and abetting offender, and the sentencing guidelines do not apply.

3. Determination of sentence;

In full view of the following circumstances and the Defendants’ age, character and conduct, environment, family relations, motive, means and consequence of the commission of the crime, degree of participation, and circumstances after the commission of the crime, all of the sentencing factors specified in the arguments in this case shall be determined by the lower limit of the recommended sentencing guidelines, and the sentence shall be determined as ordered by the order.

Defendant B and C conspired to attract the victim K, and subsequently, Defendant B and C committed a crime of demanding money from the victim M and acquiring KRW 150 million from the victim M by using a concern about the safety of the victim K, and Defendant A assisted and abetting the above crime. In light of the background and method of the crime, and the age of the victim K, etc., Defendant B and C do not seem to be less exceptionally liable for the crime. The victim K and M appears to have suffered considerable mental shock due to the instant crime, and the victim M intended to obtain a strict punishment against the Defendants in this court even though they had submitted the agreement.

The circumstances favorable to ○○: Defendant B and C purchased the shares recommended by the victim K’s father L and suffered damage due to the decline in the stock price, taking into account the motive of the crime. The Defendants do not seem to have committed the crime of this case in accordance with a clear prior plan, and the victim K did not directly harm the crime. Defendant A does not have a relatively much weighted degree of involvement in the crime of this case as an aiding and abetting, but it does not seem to have been easy to refuse Defendant B’s request, a type of the Defendant’s birth as Defendant C, which is a kind of sibling. In addition, the victim was returned KRW 125 million out of the amount of damage, and the Defendants did not bear civil liability against L and the victim for damage caused by the purchase of the shares. Meanwhile, Defendant B and Defendant A did not have any history of criminal punishment prior to the criminal punishment of this case, and Defendant C did not have any history of being supported by the minor.

The presiding judge, judges and assistant judges

Judges Park Jong-ro

Judges Park Jae-gu

1) The written indictment is written as a ‘Nun', but the report of investigation (the report on the attachment of text from among the suspect's cell phone sirens that is accompanied by the output of text from among the suspect's cellphones

According to Section 804 of this Act, it is apparent that this is a clerical error of "Nuna", and thus, it is corrected ex officio as above. The following cases are also subject to Paragraph 2 of this Article:

2) The statements made by the victim M to the same purport are consistent and specific, and include the contents that are disadvantageous to the victim's side without any increase or decrease.

In light of the fact that there is credibility.