Defendant

Defendant

Chohee-young

Attorney Yoon So-young

Seoul Northern District Court Decision 2009Ma1729 Decided October 16, 2009

The judgment of the court below is reversed.

Acquittal of the Defendant

1. Summary of grounds for appeal;

A. Legal principles

The above summary order was issued on January 15, 2009 by Seoul Northern District Court 2009 High Court Decision 2009 High Court Decision 118, and thereafter the above summary order became final and conclusive on July 1, 2009. The criminal facts of the above summary order and the facts charged of this case committed before the issuance of the above summary order are low under the single and continuous criminal intent in light of the place of business and the type of business, and the res judicata effect of the above summary order in the relation of a single comprehensive crime also affects the facts charged of this case, and thus, the court below erred in finding the Defendant guilty.

B. Error of mistake

After the Defendant’s control on August 29, 2008, the Defendant transferred the sports marina site (hereinafter “instant establishment”) located in Nowon-gu in Seoul Special Metropolitan City, Nowon-gu (hereinafter omitted), to the Co-Defendant 1 in the first instance trial, and thereafter, the Defendant did not operate the said establishment.

C. Unreasonable sentencing

The sentence of the court below is too unreasonable.

2. Determination

A. The summary of the facts charged of this case is as follows: “The defendant conspireds with the first instance court and the non-indicted 1 on January 8, 2009, equipped with five rooms in the sports marina place in the operation of the defendant in Nowon-gu in Seoul Special Metropolitan City, Nowon-gu (hereinafter omitted), and employed female employees, and notified the non-indicted 2, who is the employee, to receive KRW 179,000 in return for the act of similarity from the non-indicted 2, who was the customer, and let the female employee take the sexual organ of the non-indicted 3 and 4, including arranging the act of similarity with the non-indicted 2, who is the female employee, for the business of arranging the act of similarity, from August 30, 2008 to January 8, 2009, to arrange the commercial sex acts to arrange the commercial sex acts and sell approximately 45,94,50-9,500 in total for the same period.”

B. In light of the records, the defendant was sentenced to a summary order of 2,00,000 won on January 15, 2009 and the above summary order was finalized on July 1, 2009. The criminal facts of the above summary order are as follows: "The first instance court, in collusion with the non-indicted 1, had an employee engage in the act of arranging sexual intercourse for a certain period of time on August 29, 2008, and the defendant provided it to the above non-indicted 1 as a place for the business of arranging sexual intercourse, and the defendant knew that the above act of arranging sexual intercourse was conducted by the non-indicted 1, and the defendant was provided to the non-indicted 2,00,000 after being sentenced to a summary order of 2,00,000 won."

According to the above facts, although there is a little difference between the facts charged of this case for which the above summary order became final and the facts charged prior to its issuance, the facts charged of the above summary order also provide a place of commercial sex acts through sub-lease to "act of arranging commercial sex acts for a certain period of time," in light of the date, time, place, and mode of business, etc. of the crime, the defendant repeatedly committed the same kind of crime as the brokerage of commercial sex acts in the same or similar manner under the single and continuous criminal intent, and it is reasonable to view that there is a relation of a single comprehensive crime since the legal interests of the damage are the same and basic facts are the same. Thus, the effect of the above summary order shall also affect the facts charged of this case

Therefore, this part of the facts charged constitutes "when a final judgment is rendered" under Article 326 subparagraph 1 of the Criminal Procedure Act, and thus, the court below convicted the defendant of the facts charged in this case. The court below erred by misapprehending the legal principles, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the defendant's argument about the misapprehension of the legal principle is with merit, so the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the defendant's argument about mistake of facts and unreasonable sentencing, and the following decision is

The summary of the facts charged in this case is as stated in the above 2-A, which constitutes the time when a final judgment has been made as stated in the above 2-2-B, and thus, the defendant is acquitted pursuant to Article 326-1 of the Criminal Procedure Act.

Judges Ocheon-cheon (Presiding Judge)