2019No1383 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.);

Fraud, Violation of Telecommunications Business Act, Protection of Children and Juveniles against Sexual Abuse

Violation of the Act (production, Distribution, etc. of obscenity)

A

Defendant and Prosecutor

Jindones room, knife quantity, Kim Jong-Un (prosecution), and Gangwon-ju (Public trial)

Attorney Kim Yong-soo (Korean)

Incheon District Court Decision 2018Gohap232, 2018 Decided May 24, 2019

Joint 293 (Joint), 2018 High 295 (Joint) Judgment

January 14, 2020

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

The defendant shall be subject to employment restrictions for each three years at child and juvenile-related institutions, etc. and welfare facilities for disabled persons.

1. Summary of grounds for appeal;

A. The defendant (e.g., unfair form)

The sentence of the original court (three years of imprisonment, etc.) is too unreasonable.

(b) Prosecutors;

1) Fact-finding (not guilty part)

In full view of the mediation period, frequency, earnings, statements of the target juvenile, etc., the defendant can be recognized as mediating the act of purchasing child or juvenile sex by "business". Nevertheless, the judgment of the court below that did not prove this point is erroneous in the misapprehension of facts.

2) Unreasonable sentencing

The sentence of the court below is too unjustifiable.

2. Determination

(a) Ex officio determination of an employment restriction order for welfare facilities for disabled persons;

The prosecutor's judgment of mistake is made ex officio prior to the judgment.

Article 59-3(1) of the former Act on Welfare of Persons with Disabilities (amended by the same Act as the following) provides that no person who has been sentenced to punishment or medical treatment and custody for sex offense shall operate welfare facilities for persons with disabilities, or provide them with employment or actual labor to persons with disabilities, and uniformly sets the period during which the operation, employment or actual labor is impossible, "ten years from the date on which the execution of all or part of the punishment or medical treatment and custody is terminated, or postponed or exempted." However, Article 59-3(1) of the Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018; hereafter referred to as "Act on Welfare of Persons with Disabilities" in this paragraph) provides that where the court issues a sentence of imprisonment or medical treatment and custody for sex offense, the period of restriction on employment of persons with disabilities shall not exceed 10 years prior to the date on which the execution of the punishment or medical treatment and custody is terminated or suspended or exempted (hereinafter referred to as "period of restriction on employment of persons with disabilities") shall not exceed 10 years.

Therefore, as the revised Act on Welfare of Persons with Disabilities enters into force after the sentence of the lower judgment, Article 59-3(1) of the revised Act on Welfare of Persons with Disabilities applies to the case, it is necessary to additionally examine and judge whether the "welfare facilities for persons with disabilities", other than the "child and juvenile-related institutions, etc." should be imposed an employment-restricted institution as an employment-restricted institution, and how the employment-restricted period should be set to a certain extent.

Furthermore, an employment restriction order under Article 59-3(1) of the amended Act on Welfare of Persons with Disabilities is an incidental disposition that is imposed simultaneously with a conviction of a sex offense case, and the judgment of the court below should be reversed in its entirety, even if

However, despite the above reasons for ex officio destruction, the prosecutor's assertion of misunderstanding of facts is still subject to the judgment of this court, and this is examined below.

B. Judgment on the prosecutor's assertion of mistake

Article 15(1)2 of the Act on the Protection of Children and Juveniles against Sexual Abuse refers to the continuous repeating of good offices, and whether it constitutes such act ought to be determined according to social norms, comprehensively taking into account various circumstances, such as the repetition and continuity of good offices, business nature, and purpose, size, frequency, period, mode, etc. of such act (see, e.g., Supreme Court Decision 2013Do8449, Sept. 27, 2013).

The court below duly adopted and examined the following circumstances, i.e., the defendant voluntarily arranged commercial sex acts within a very short period, i.e., the defendant himself/herself; ii) the defendant stated that he/she proposed commercial sex acts with the "person who has retired only once" (2018, 232, 837 pages); iii) he/she led the mediation of commercial sex acts by taking charge of role distribution, profit distribution; iv) the defendant was only 10,00 won at one time out of the profits from mediation of commercial sex acts; 6) the defendant lives with his/her parents at the time of mediation of commercial sex acts, but it seems that it was not necessary to continue commercial sex acts to arrange commercial sex acts; 6) the defendant's testimony that he/she had no reasonable contact with his/her child, i.e., B and the defendant's testimony that he/she had no contact with the above 30th day (20th day before commencement of commercial sex acts with B and the defendant); 7).

Even if the Defendant, as a co-principal, assisted the purchase of a child or youth’s sex in this business, and the Defendant’s participation in such act, pursuant to the proviso to Article 33 and Article 50 of the Criminal Act, the Defendant can only be punished for the punishment prescribed in Article 15(2)3 of the Act on the Protection of Children and Juveniles against Sexual Abuse, which is a general penal provision for a person arranging the purchase of sex of a child or youth, (see, e.g., Supreme Court Decision 2017Do7463, Jul. 18, 2017).

3. Conclusion

The judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining each of the alleged unfair sentencing by the defendant and the prosecutor, and the judgment below is reversed, and the following is again decided after pleading.

【Grounds for the Judgment of the Supreme Court】

Criminal facts and summary of evidence

The summary of the facts of the crime acknowledged by the court of this case and the summary of the evidence are as follows: 50,000 won from the L account of the victim" of the judgment of the court below 7 to 10,000 won among the facts of the crime as stated in the judgment of the court below. Accordingly, the defendant, in collusion with F and by deceiving the victim, and thereby, by deceiving the victim, was exempted from the payment of 50,000 won out of the amount received from the victim's cellular phone sales. Accordingly, the defendant, in collusion with F and by deceiving the victim and acquiring property profits equivalent to 500,000 won from the victim ( even according to the facts acknowledged by the court below, it is difficult to view that the defendant, even according to the facts acknowledged by the court of original instance, obtained 50,000 won from the victim's account and delivered the victim). The defendant, as if the money was sold and received from the victim's cell phone under the victim's name, the court below acknowledged the above facts of the crime ex officio.

Application of Statutes

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

Article 15(2)3 of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 30 of the Criminal Act, Article 30 of the Criminal Act, Article 95-2 Subparag. 3, and Article 32-4(1)2 of the Telecommunications Business Act, Article 30 of the Criminal Act, Article 30 of the Criminal Act (the solicitation, etc. of a contract to provide telecommunication devices and telecommunications services on the condition of fund provision, etc.), Articles 347(1) and 30 of the Criminal Act, Article 11(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 30 of the Criminal Act (the selection of a limited term, the production of child and youth pornography, the selection of a limited term), Article 11(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 30 of the Criminal Act (the selection of a contract to screen a child or youth pornography for the purpose of profit-making, the selection of imprisonment)

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 with punishment prescribed in the Act on the Protection of Children and Juveniles against Sexual Abuse (production, Distribution, etc. of obscenity)]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following circumstances considered in favor of 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. To issue an order to disclose and to refuse to notify;

The crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.) and the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials) are only sex offenses against children and juveniles, and they are not sex offenses against children and juveniles, thus not subject

1. An employment restriction order;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 15352, Jan. 16, 2018); Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 15452, Mar. 13, 2018); Article 2 and the main sentence of Article 59-3(1) of the Addenda to the Act on Welfare of Persons with Disabilities (Act No. 15904, Dec. 11, 2018)

Reasons for sentencing

The facts constituting the crime in the judgment of the Defendant are all recognized and against the will of the relevant juvenile. It does not seem to have arranged sexual traffic against the intention of the relevant juvenile, or produced and screened obscene materials. In particular, in the case of the crime of producing and screening obscene materials for children and juveniles, the Defendant did not perform his/her leading role. The Defendant voluntarily discontinued to arrange sexual traffic for children and juveniles within a short period. The benefit gained by the Defendant is the same as the crime of arranging sexual traffic against children and juveniles and the crime of producing and screening obscene materials for children and juveniles. The amount obtained by fraud is not so large that the amount of

On the other hand, in collusion with B, the Defendant assisted C, a female juvenile under 16 years of age, to become the counterpart to the act of purchasing child and juvenile sex, and solicited and arranged to enter into a contract for the provision of telecommunications services necessary for the use of mobile communications devices on condition of providing and melting funds to G, thereby inducing financial gains by deceiving G, and making adult broadcasting with U, a female juvenile under 13 years of age. Each of the crimes of this case is highly likely to be committed in light of the subject of the above crimes, circumstances, and methods, etc. In addition, the crime of arranging child and juvenile sex trafficking and the crime of producing and screening child and juvenile pornography is likely to have negative impact on the formation of personality of the target juvenile, and is likely to encourage awareness of sexual traffic distorted in our society. The Defendant was sentenced to suspension of the execution of sentence on February 15, 2017, and the judgment of the Defendant against the crime of this case becomes final and conclusive and conclusive on the 23th day of the same month, and each of the crime of this case was committed with the child and juvenile sex trafficking.

In addition to the above circumstances, the defendant's age, character and conduct, environment, family relationship, motive, background, means and consequence of the crime, the circumstances after the crime was committed, etc., and all the conditions of sentencing as shown in the argument of this case (including the sentencing data added in the appellate trial) shall be determined as per the order.

Registration of Personal Information

Where a conviction becomes final and conclusive on the criminal facts of a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (a brokerage business, etc.) and a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials), the 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 is obligated to submit personal information to the competent

The registration period of personal information of a defendant is 15 years in accordance with Article 45(1)3 and (2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes against each of the above crimes. In full view of the above crimes which cause the registration of personal information, the punishment of the above crimes and the other crimes which are the cause of the registration of personal information, the severity of the crimes, etc., in this case, it is not necessary to determine the registration period of personal information as a short-term period than the period according to the declaration type in accordance with Article 45(4) of the above Act.

The acquittal portion

The summary of this part of the facts charged is that the defendant, in collusion with B, assisted juvenile C to become the other party to the act of purchasing child or juvenile sex, such as the time of original adjudication.

As examined in Article 2-2(b), since this part of the facts charged falls under the case where there is no proof of crime, it shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the defendant is found guilty of a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.)

Judge Ma-gu of the presiding judge

Judge Oral Rule

Judges Cho Young-young

1) The victim was withdrawn with the victim and immediately delivered to the victim.