Whether a crime of child trade under the Child Welfare Act is established by transferring or taking over the body of a child in return for payment (affirmative), and whether the circumstance where a child does not express his/her explicit dissenting opinion or expresses his/her consent or consent affects the establishment of a crime of child trade (negative)

"Act of trading children" under Article 17 subparagraph 1 of the Child Welfare Act refers to a crime committed by transferring or taking over a child to another person in return for remuneration or consideration, and "child" refers to a person under 18 years of age under Article 3 subparagraph 1 of the same Act.

Since it is difficult to expect a child to voluntarily and seriously exercise his/her right to self-determination because he/she has not yet been fully able to values and judgment ability, it is difficult to expect a child to voluntarily and seriously exercise his/her right to self-determination without his/her guardian’s physical and mental ability to protect himself/herself, and it is extremely vulnerable to society and economy without his/her guardian, the crime of child trafficking is established by transferring and taking over the child’s body in return for payment as the goods, etc.

Article 3 subparag. 1 and Article 17 subparag. 1 of the Child Welfare Act; Article 71(1)1 and Article 73 of the former Child Welfare Act (Amended by Act No. 12361, Jan. 28, 2014);

Supreme Court Decision 2014Do7998 Decided November 27, 2014

Defendant

Defendant

Attorneys Park Jong- Shipping et al.

Changwon District Court Decision 2015No573 decided April 16, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. “Act of trading children” under Article 17 subparag. 1 of the Child Welfare Act refers to a crime committed by transferring or receiving a child in return for remuneration or consideration to another person (see Supreme Court Decision 2014Do7998, Nov. 27, 2014); and “child” refers to a person under 18 years of age under Article 3 subparag. 1 of the same Act.

Since it is difficult to expect a child to voluntarily and seriously exercise his/her right to self-determination because he/she has not yet been fully able to values and judgment ability, it is difficult to expect a child to voluntarily and seriously exercise his/her right to self-determination without his/her guardian’s physical and mental ability to protect himself/herself, and it is extremely vulnerable to society and economy without his/her guardian, the crime of child trafficking is established by transferring and taking over the child’s body in return for payment as the goods, etc.

2. According to the reasoning of the judgment below and the evidence duly admitted by the court below, while the defendant provided accommodation and meals to the victimized child who was the first-class student of the 13-year old middle school living in his/her house, he/she was going to receive money equivalent to the amount of money from another person who was physical colored on the Internet, and he/she was arrested on the ground of the police officer. At the time, the victimized child was arrested by the police officer. Although he/she was unaware of the fact that the victimized child was to receive the money, he/she did not express his/her objection to the fact that he/she would go to the house of another person, but instead did not express his/her contrary intent to the contrary.

3. Examining these facts in light of the legal principles as seen earlier, the Defendant’s above act does not affect the establishment of the above crime solely on the ground that the Defendant did not use violence or intimidation at the time of transferring the victimized child, or consented to the transfer of the victimized child to another person’s house.

Therefore, the court below is just in its conclusion that it found guilty of the charge of attempted child trafficking of this case. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the crime of

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

Justices Kim Yong-deok (Presiding Justice)