[1] Where a minor requested property after abduction but did not acquire it, whether a person can be prosecuted as "an attempt to acquire property" under Article 5-2 (2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, not "the crime of taking property demand" (affirmative)

[2] The case holding that: (a) a person who requested property after the abduction of a minor but did not acquire such property was indicted as a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes due to the "Attempted Acquisition of Property after the minor"; and (b) the court recognized such person as a violation of the same Act without any amendment to the indictment and excluded attempted mitigation as a violation of the same Act

[1] Article 5-2(2)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes related to the Kidnapping and Inducement for Profit provides that "acquisition" and "request" shall be a separate form of action. Thus, in a case where a person who captures a minor requested the parent to acquire the property, but failed to obtain it, the prosecutor may prosecute him/her as "crime of the request for property", and the prosecutor may prosecute him/her as "an attempt to acquire property" with emphasis on "the acquisition of property".

[2] The case holding that: (a) a person who requested property after the abduction of a minor but did not acquire such property was indicted as a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes due to the "Attempted Acquisition of Property after the minor"; and (b) the court recognized the crime as a violation of the same Act without any amendment to the indictment and excluded attempted mitigation as a violation of the same Act without any amendment to the indictment, thereby causing a substantial disadvantage to

[1] Article 5-2(2)1 and (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 287 of the Criminal Act / [2] Article 5-2(2)1 and (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 287 of the Criminal Act, Articles 254 and 298 of the Criminal Procedure Act

Defendant 1 and two others

Defendants

Attorney Kim Sung-sung et al.

Busan High Court Decision 2007No858 decided April 23, 2008

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

Article 5-2 (2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”) provides that a person who captures or induces a minor shall be punished by imprisonment for life or for not less than ten years when he/she acquires “acquisition” or demands “request” any property or interest in property, taking advantage of concerns about the parents of the kidnapped or induced minor, or any other person who threatens the safety of the minor. Article 5-2 (2) 1 of the same Act provides that a person who has kidnapped or induced the minor shall be punished.

The summary of the facts charged of this case is as follows: (a) the Defendants conspired to capture Nonindicted 1 (the age of 15) who is a minor victim; (b) the Defendants requested KRW 300 million to the Nonindicted 2 who acquired the property by using his mother Nonindicted 2’s fear of his safety; (c) but did not bring about the help of the victim escape; (d) the prosecutor prosecuted the above facts charged as a violation of the Special Treatment Act pursuant to Article 5-2(2)1 and (6) of the Aggravated Punishment Act by applying Article 5-2(2) of the Aggravated Punishment Act and Article 5-2(2)6 of the Aggravated Punishment Act; (c) the first instance court applied Article 25(2) of the Criminal Act to the crime of attempted acquisition of the property after abduction of a minor; and (d) again sentenced the Defendants to the mitigation of self-denunciation for Defendant 2; and (e) to the extent of the term of punishment

The court below reversed the judgment of the court of first instance on the ground that it was unlawful for the court below to reduce each law against the Defendants, even though it is difficult to present an attempted crime, in the case where the Defendants were kidnapped by minors and demanded goods using it (the request reaches Nonindicted 2) as the crime of property demand under Article 5-2 (2) 1 of the Aggravated Punishment Act was already established. Thus, the court below reversed the judgment of the court of first instance and decided as per its reasoning after pleading.

However, it is difficult to accept such judgment of the court below for the following reasons.

First of all, Article 5-2(2)1 of the Aggravated Punishment Act provides for “acquisition” and “request” as a separate form of act. Thus, in a case where a person who kidnapped a minor, as in the instant case, demanded property to his parent but did not acquire it, the prosecutor may prosecute him as “the crime of taking property” or “the crime of taking property” with focus on not only the fact that he may prosecute him, but also the fact that he “the crime of taking property” may be prosecuted as “the crime of taking property.”

In addition, where there is no risk of actual disadvantage to the defendant's exercise of his/her right of defense, it does not violate the principle of no accusation even if the court recognizes some other facts or different applicable provisions of laws without the amendment process of indictment. However, whether substantial disadvantage is given to the defendant in exercising his/her right of defense should be determined by considering various factors such as the severity of statutory punishment and applicable sentences in addition to the basic identity of the facts charged, and whether it is obvious that there is obvious possibility that the defendant may have different judgments on his/her endeavor, time, and cost due to such differences (see Supreme Court Decision 2007Do4749 delivered on December 27, 20

In this case, whether the court below's measure is likely to actually disadvantage the defendants' exercise of their right of defense can be seen as having applied Article 25 (2) of the Criminal Act to mitigation, so there may be a difference in the minimum punishment according to the court's mitigation decision. According to the records, the defendants are expected to be sentenced to suspended sentence by means of attempted mitigation and discretionary mitigation as to the facts prosecuted as "an attempted acquisition of property after abduction of a minor" (the prosecutor also led to three years of imprisonment with prison labor for the defendant 3 within the scope of punishment and discretionary mitigation). As a result of the first instance court's decision, it can be seen that there was an agreement with the victim after the sentence of the court of first instance. Thus, in this case where the public prosecution was instituted as a violation of the Act on Attempted Acquisition of Property after Kidnapping of a minor, the court may recognize the defendant's actual disadvantage in the defendant's exercise of his right of defense other than the victim's attempted mitigation without any amendment to the Act.

Nevertheless, the court below erred in the misunderstanding of legal principles as to the modification of an indictment in punishing the Defendants for violating the Special Act by “the demand for property after a minor abduction” without any modification of an indictment, which affected the conclusion of the judgment. The appeal by the Defendants pointing this out is with merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)