2017No2839 Violation of the Act on the Control of Narcotics, etc. (franking) and the Act on the Protection of Children and Juveniles against Sexual Abuse (franking, etc.)

A

Defendant

Maximumheading (prosecutions) and Rooflines (public trial)

Attorney Park F (Korean National Assembly)

Suwon District Court Decision 2017Gohap128 Decided August 30, 2017

February 9, 2018

The part of the judgment of the court below against the defendant is reversed.

A defendant shall be punished by imprisonment for four years.

To order the accused to complete a program to prevent sexual traffic for 80 hours. Each 4 points for injection (No. 5) with a trace of use seized, and 10k color solid lives (No. 10 m.) with a color of 10k shall be confiscated.

250,000 won shall be additionally collected from the defendant.

The defendant shall be ordered to pay an amount equivalent to the above additional collection charge.

The period of the registration of personal information against the defendant shall be 15 years.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

1) The point of violation of the Act on the Control of Narcotics, etc. (fence) by the administration of phiphonephones to minors B andO

The Defendant was unaware of the fact that B and B were minor at the time when he administered phiphones with B and B. Nevertheless, the lower court erred by misapprehending the legal doctrine on each of the facts charged, thereby adversely affecting the conclusion of the judgment.

2) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse

The Defendant was unaware of the fact that B was a juvenile at the time of soliciting B to sell sex. Nevertheless, the lower court erred by misapprehending the legal doctrine on the facts charged and misapprehending the legal doctrine.

B. Unfair sentencing

The punishment of the court below against the defendant (limited to four years of imprisonment, 80 hours of completion of a sexual traffic prevention program, confiscation, collection, and provisional payment order) is too unreasonable.

2. Determination

A. Ex officio determination

The defendant shall be considered ex officio prior to his judgment on the grounds for appeal.

As to the Defendant, the term of registration is determined in accordance with Article 38 of the Criminal Act, which is the cause of the registration of personal information under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and other crimes. The term of registration of personal information resulting therefrom is 20 years based on the entire sentence under Article 45(1)2 and (2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. However, in light of the seriousness of the punishment of the crimes of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (sexual purchase, etc.) and the remaining crimes of violating the Act on the Control, etc. of Narcotics, etc., it is unreasonable to determine the term of

Meanwhile, pursuant to Article 45(4) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the part of the judgment setting the longer short-term period as the registration period among the periods under the subparagraphs of paragraph (1) of the same Article is an incidental disposition simultaneously with a conviction of a sex offense case subject to registration, and thus, all of the judgment below should be reversed, even if there is no illegality in the remaining part of the defendant's case (see, e.g., Supreme Court Decision 2016Do1822, Jan. 12, 2017). Of the judgment below, the part against the defendant among the judgment below was unable to be maintained as it is.

B. Regarding misapprehension of facts and misapprehension of legal principles

1) The point of violation of the Act on the Control of Narcotics, etc. (fence) by the administration of phiphonephones to minors B andO

Comprehensively taking account of the following circumstances acknowledged by the evidence duly admitted and examined by the lower court, the fact that B and B administered phiphones to B and B with knowledge of a minor fact is sufficiently recognized. Therefore, the lower court’s judgment that found the Defendant guilty of each of the charges is justifiable, and there was no error of mistake of facts or misapprehension of legal principles as alleged by the Defendant. The Defendant’s allegation in this part is without merit.

① At the court of the court below, B stated that “At the time of the first arrival of the Defendant and the J, there was a little us to say that the Defendant was a minor at the time of the first arrival of the Defendant and the J, and that there was a defendant at that place.” (The trial record 211-212 pages), and the J also stated in the court of the court below that “B made a statement to the effect that it was consistent with B’s above statements (the trial record 128 pages) by stating that “B was aware that it was an ex post facto and ex post facto a middle school like the Defendant.”

② In the prosecutor’s investigation, theO stated, “The JJ reported the AG between B and B, and the Defendant was aware that he was a minor (Evidence No. 619 pages).” The court below stated, “The Defendant was accurately said that he was attending a high school,” and “the Defendant was aware that he was a minor even before he administered phiphones (the trial record No. 330, 332 pages).”

③ The aforementioned statements by J, B, andO are specifically and consistently reliable, and there is no other special circumstance to deem that maintaining the lower court’s judgment that recognized the credibility of the statements by J, B, andO is significantly unfair.

2) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse

A) The judgment of the court below

In full view of the following circumstances acknowledged by the evidence duly admitted and investigated, the lower court determined that the Defendant could fully recognize the fact that P knew of the fact that P was a juvenile, thereby soliciting P to sell sex.

① Around May 2016, the Defendant came to know of the J through mobile phone hosting fluor, and was aware of the fact that the J was a minor.

② Prior to the crime of this part, the Defendant met either P and B obtained cell phone hosting P and B through Nel, and there was also J on the job. At the time of the lower court’s trial, J stated that “B was aware of the fact that it was a minor as his middle school and notified the Defendant of the fact that P was a minor, and that P is also a child’s friendship (the trial record 128 pages), and the content of the statement is specific to the extent that it is impossible to know that the Defendant did not directly experience it. In addition, each of the statements made by the investigation agencies and the lower court in the investigation agencies and the lower court are consistent with the J’s above statements, thereby supporting the credibility of the statement.

③ Meanwhile, in light of the 'V’ dialogue between the Defendant and P before and after the crime in this part, the Defendant seems to have known that the P, who recommended him to sell sex, was the friendly relationship between the Defendant and P, a minor.

B) The judgment of this Court

Examining the evidence duly admitted and examined by the court below, the above judgment of the court below is just, and there is no error of misconception of facts or misapprehension of legal principles as alleged by the defendant. Therefore, this part of the defendant's assertion is without merit.

3. Conclusion

Therefore, the court below reversed the part of the judgment below against the defendant under Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, on the ground that there is a ground for ex officio reversal as seen earlier.

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

The summary of the facts constituting an offense and the evidence acknowledged by this court is the same as the entries in each corresponding column of the judgment of the court below, and such facts are cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Articles 58(1)7, 4(1)1, and 2 subparag. 3(b) (Article 60(1)2, and 4(1)1, and 2 subparag. 3(b) of the Narcotics Control Act (Article 58(1)7, Article 4(1)3(b) of the Act on the Management of Narcotics, Etc., Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) (Article 3(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse (Article 58(1)7, Article 4(1)1, and

1. Aggravation for concurrent crimes;

The first sentence of Article 37, Article 38(1)2, Article 50 of the Criminal Act, and Article 50 of the Criminal Act, shall be deemed the most severe judgment on February 20, 2017, subject to concurrent crimes with punishment prescribed in the crime of violation of the Act on the Control of Narcotics, etc. (compacting) due to the administration of philopon on February

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for 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. Confiscation;

The main sentence of Article 67 of the Narcotics Control Act

1. Additional collection:

The proviso of Article 67 of the Narcotics Control Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. The registration period of personal information;

Article 45(4) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (as seen in Article 2(1) above, it is deemed unfair to determine the registration period in accordance with Article 45(2) and (1)2 of the Act on the Punishment, etc. of Sexual Crimes, and therefore, the registration period shall be 15 years, which is a short term period, pursuant to paragraph (4) of the same Article).

Reasons for sentencing

The circumstances favorable to the defendant are that the defendant recognizes the facts of each of the crimes of this case as a substitute and reflects them, and that the defendant appears to have cooperated with the investigation in arresting a drug offender.

On the other hand, each of the crimes of this case is a situation unfavorable to the defendant in that the defendant solicits the defendant to sell sex to juveniles, receives, purchase, and possess phiphones, and administers them to minors, and the crime is very poor in light of the content, method, frequency, etc. of the crime, if phiphones are administered to minors, the physical and physiological function of the minor is damaged, and the physical and mental post-treatment of the minor is highly dangerous, and the crime of sexual purchase of the juvenile is highly likely to be subject to criticism in that the perception of sex is not completely established, and the crime of sexual purchase of the juvenile can have a serious adverse effect on the juvenile who is not completely established.

In addition, the punishment as ordered shall be determined in consideration of all the sentencing factors shown in the pleadings of this case, such as the defendant's age, character and conduct, environment, family relationship, motive, means and result of the crime, and circumstances after the crime.

Registration and submission of personal information

Where a judgment of conviction is finalized against a defendant with respect to a crime of violation of the Act on the Punishment, etc. of Sexual Crimes against Children and Juveniles against Sexual Abuse, 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 agency pursuant

The presiding judge, senior judge;

Judges Hong Sung-sung

Judges Gin-dong