In order to establish a violation of Article 15(1)2 of the Act on the Protection of Children and Juveniles against Sexual Abuse by arranging the purchase of sex by a child or juvenile as a business, whether a person who has engaged in buying sex of a child or juvenile shall be aware that he/she is a child or juvenile (negative)

The legislative purpose of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “Juvenile Protection Act”) is to protect and relieve children and juveniles who are subject to sexual traffic, and using the term “act of purchasing the sex of children and juveniles” other than “act of purchasing the sex of children and juveniles” in the Juvenile Sex Protection Act is that children and juveniles are subject to protection and they cannot be subject to sexual traffic, and thus expressed the people who purchase the sex of children and juveniles as the subject of sexual traffic. In addition, if a person who acts as a profession of arranging the purchase of sex of children and juveniles commits an act of arranging the purchase of sex of children and juveniles while recognizing that they are children and juveniles subject to mediation, there is no reason to affect the responsibility of the person who act of arranging the purchase of sex of children and juveniles as the counterpart of the act of arranging the purchase of sex of children and juveniles.

Therefore, in order to establish a crime of violating Article 15 (1) 2 of the Juvenile Sex Protection Act by arranging the purchase of sex of a child or juvenile as a business, a person engaged in the act of arranging the purchase of sex of a child or juvenile must be aware that the person engaged in the act of arranging the purchase of sex of a child or juvenile is the object of mediation, but in addition, it cannot be said that a person who has purchased sex of a child or juvenile as a broker should be aware that he/she is a child or

Article 2 subparag. 4, Article 13(1), and Article 15(1)2 of the Act on the Protection of Children and Juveniles against Sexual Abuse

Defendant 1 and one other

Defendants

Attorney Kim Jong-soo

Busan High Court (Chowon) Decision 2015No163, 180 decided September 23, 2015

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.)

A. The lower court determined that Defendants jointly engaged in the act of arranging the purchase of sex of children and juveniles as a business, and found Defendants guilty of this part of the facts charged by applying Article 15(1)2 of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “Juvenile Protection Act”), and Article 30 of the Criminal Act. The gist of the grounds of appeal is that in order to recognize “the act of arranging the purchase of sex of children and juveniles” as “the act of arranging the purchase of sex of children and juveniles,” where Article 15(1)2 of the Act on the Protection of Juveniles against Sexual Abuse applies, the lower court should recognize that sexual purchaser is a “child and juvenile” and the lower court omitted the deliberation thereon, and did not arrange sexual traffic as business, so the Defendants do not constitute a crime of violating the Act on the Protection of Juveniles against Sexual Abuse

B. Article 2 Subparag. 4 of the Act on the Protection of Juveniles from Sexual Abuse provides that "the act of buying sex of a child or youth" means that a person arranging the purchase of sex of a child or youth, or a person who substantially protects and supervises the child or youth, etc., provides or promises to provide money, goods, or other property benefits, job, convenience, etc., or allowing a child or youth to do any of the acts falling under any of the following items, such as sexual intercourse, against a child or youth. In addition, Article 13(1) of the Act on the Protection of Juveniles from Sexual Abuse provides that "the person who has purchased sex of a child or youth" shall be punished by imprisonment with labor for not less than one year but not more than 10 years or by a fine not less than 20,000 won but not more than 50,000 won, and separately, Article 15(1)2 of the Act provides that "the person who has assisted the purchase of sex of a child or youth as a business of arranging the purchase of sex."

The purpose of the Act is to protect and relieve children and juveniles who are the object of sexual traffic. The use of the term "the act of purchasing the sex of children and juveniles" rather than "the act of purchasing the sex of children and juveniles" under the Act on the Protection of Juveniles from Sexual Abuse is that children and juveniles fall under the object of protection and do not become the subject of sexual traffic, and thus expressed the person buying the sex of children and juveniles as the subject of sexual traffic. In addition, if a person acting as a business of arranging the purchase of sex of children and juveniles commits the above act of arranging the purchase of sex of children and juveniles while recognizing that they are children and juveniles, the issue of whether the person buying the sex of children and juveniles was aware that they are children and juveniles, does not have any reason to affect the liability of the person acting as a broker.

Therefore, in order to establish a crime of violating Article 15 (1) 2 of the Juvenile Sex Protection Act by arranging the purchase of sex of a child or youth as a business, a person engaged in such referral act should be aware that he/she is the object of mediation and arrange the purchase of sex of a child or youth. However, in addition, it cannot be said that a person who buying sex of a child or youth by such referral act should be aware that he/she is a child or youth.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, it is justifiable for the lower court to find the Defendants guilty of this part of the facts charged by applying Article 15(1)2 of the Juvenile Sex Protection Act and Article 30 of the Criminal Act. In so doing, it did not err by misapprehending the legal doctrine on Article 15(1)2 of the Juvenile Sex Protection Act, thereby failing to exhaust all necessary deliberations or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, as otherwise alleged in the grounds of appeal

2. As to the remaining grounds of appeal

Article 3(1) of the former Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014); Article 3(1) of the same Act on Punishment of Violences, etc. (amended by Act No. 12896, Dec. 30, 2014); Article 366 of the Criminal Act on “a person who commits a crime under Article 366 of the Criminal Act by carrying a deadly weapon or other dangerous object with a deadly weapon or other dangerous object,” and Article 3(1) of the Punishment of Violences, etc. Act on “a person who commits a crime under Article 366 of the Criminal Act by carrying a deadly weapon or other dangerous object with a deadly weapon or other dangerous object,” the Constitutional Court rendered a decision of unconstitutionality on the part concerning “a person who commits a crime under Article 366 of the Criminal Act” (see, e.g., Constitutional Court Decision 2014HunBa154, Sept. 24, 2015).

In addition, according to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years is imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where Defendant 1 was sentenced to a minor sentence, the argument that the punishment is too unreasonable is not a legitimate ground for appeal.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)