[1] Requirements for establishing a crime of inducing minors

[2] The case holding that it is difficult to deem that a minor was placed under a factual control by inducing him/her to leave the school

[1] The crime of inducing a minor under Article 287 of the Criminal Code refers to the act of inducing a minor by deceiving him/her from his/her free living relationship or his/her protection relationship with his/her own or a third party by means of deception or suspicion and moving the minor to another person under the factual control of him/herself or the third party. Here, the factual control refers to the physical and practical control relationship with respect to the minor. The latter part of Article 5-2 (2) 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes provides for the aggravated punishment against the person who committed the crime of inducing a minor. Thus, in order to establish the crime in any of the above crimes, the defendant must be proved by evidence that he/she misleads or harshs the minor with the intent of moving the minor to his/her or the third party's physical and factual control.

[2] The case reversing the judgment of the court below which found guilty of the crime of inducing minors on the ground that it is difficult to view the case as having been under factual control by inducing minors to leave the school

[1] Article 287 of the Criminal Act, Article 5-2 (2) 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes / [2] Article 308 of the Criminal Procedure Act, Article 287 of the Criminal Act, Article 5-2 (2) 3

[1] Supreme Court Decision 76Do2072 delivered on September 14, 1976 (Gong1976, 9357), Supreme Court Decision 82Do186 delivered on April 27, 1982 (Gong1982, 546), Supreme Court Decision 95Do2980 delivered on February 27, 1996 (Gong196Sang, 1186)

Defendant

Defendant

Law Firm Slun Law Firm, Attorneys Seo Jong-woo et al.

Gwangju High Court Decision 97No605 delivered on February 25, 1998

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

1. Summary of the judgment below

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which found the following facts charged and convicted the Defendant based on the evidence of employment.

즉 피고인은 '캐스팅' 잡지사의 기획실장으로 근무하면서 사진모델로 응모하여 알게 된 박○현(여, 16세)이 가족들의 반대에도 불구하고 모델이나 영화배우로 활동하기를 원한다는 사실을 알고, (1) 1997. 4. 13. 14:30경 박○현을 모델이나 영화배우로 활동하게 할 의사나 능력을 갖고 있지 아니함에도 박○현에게 "내가 알고 있는 영화사 사람에게 너의 사진을 보여주니 좋은 반응을 보였다. 그 쪽에서 너의 사진을 원하니 만나서 사진을 찍어야겠다. 금수장여관으로 나와라."라고 속여 그 날 15:00경 광주 북구 중흥동 소재 금수장여관 방에서 박○현을 만나 그에게 "우선 사진을 찍고 그 사진을 영화사로 보내자. 영화배우가 될 수 있도록 도와 주겠다."라고 속여 박○현의 나체사진을 찍은 후 귀가시켰다가, 1997. 4. 19. 토요일 오후에 전화로 박○현에게 "그 사진을 영화사 사람에게 보여 주었더니 금년 5월에 영화 한 편을 만드는데 조연급으로 출연시켜도 되겠다고 오케이를 하였다. 그러니 내일 오후 4시에 금수장여관 방에서 만나자."라고 박○현을 속여 그로 하여금 다음날 15:30경 광주 북구 용봉동에 있는 집을 떠나 16:00경 위 금수장여관으로 오게 한 다음 그 곳에서 박○현에게 "우선 할 일이 있으니 목포로 가자. 내일 서울로 보내 주겠다."라고 속여 그 때부터 1997. 4. 24. 02:00경까지 목포시 소재 피고인의 자취방, 전남 영암군 독천면 소재 동아전문대학 등지로 박○현을 데리고 다녀 미성년자를 유인하고, (2) 1997. 4. 24. 02:00경 피고인이 잠자고 있는 동안에 박○현이 서울에서 모델 등으로 활동할 생각으로 피고인의 급우인 공소외 1을 따라 서울로 간 사실을 알고 다음날 10:00경 공소외 1을 호출하여 전화로 "빨리 박ㅇ현이를 데리고 목포로 와라. 박ㅇ현이를 데리고 오지 않으면 죽여 버리겠다."라고 말하고, 이어서 그 전화로 박○현에게 "집에 들어가면 엄마와 오빠가 가만 두지 않을 것이다. 학교에서도 최소한 정학이다."라고 말하여 그 날 17:00경 위 공소외 1과 박○현을 목포 버스터미널로 오게 한 다음 그 때부터 박○현을 피고인의 자취방에서 기거하게 하면서 같은 달 26. 16:00경 위 공소외 2에게 전화로 "내가 박ㅇ현이를 데리고 있는데 박ㅇ현이가 집에 들어가지 않는다."라고 말하여 공소외 2로부터 만나자는 요구를 받자, 다음날 17:00 목포터미널 근처의 '소금창고' 카페에서 만나기로 약속하고 이를 박○현에게 알려 그로부터 "엄마를 만나러 약속장소로 가겠다."라는 말을 듣고 "네가 엄마를 만나면 무슨 일이 일어날지 모르니 너는 엄마를 만나지 말아라. 내가 알아서 엄마를 설득해서 만나도 좋으면 너를 데리러 오겠다."라고 말하고, 같은 달 27. 17:00경 위 '소금창고' 카페에서 공소외 2와 박○현의 오빠인 공소외 3 등에게 " 박ㅇ현이가 목포에 없고 서울에 있다."라고 거짓말을 하면서 박○현을 호출하여 박○현으로부터 걸려 온 전화를 받으면서 일방적으로 "나 목포에 있는데 너 어디에 있느냐? 응, 서울에 있어? 그럼 내가 서울에 가서 연락을 할 테니 꼼짝 말고 기다려라."라고 말하여 공소외 3 등을 속인 다음 그 날 22:00경 공소외 3 등과 함께 목포를 출발하여 다음날 03:40경 부천시 소재 피고인의 집으로 가서 공소외 3에게 " 박ㅇ현이를 호출하여 데려오겠다."라고 말하여 공소외 3 등을 그 곳에서 기다리게 한 다음 07:00경 부천을 출발하여 11:00경 목포의 자취방에 도착하여 박○현에게 "이제 서울로 가자. 우선 부천에 형님집이 있으니 그 곳으로 가자."라고 말하여 피고인의 차량에 박○현을 태우고 같은 달 29. 04:00경 부천시 원미구 작동 소재 피고인의 형인 공소외 4 소유 빈 집의 방으로 데리고 가 박○현을 유인한 다음, 그 곳에서 박○현에게 "모델이 되려면 이 정도는 참아야 한다."고 말하면서 박○현의 옷을 벗기려다가 박○현이 두 손으로 가슴을 가린 채 옷을 붙잡고 발을 구르고 소리를 지르면서 반항하자 주먹으로 얼굴을 때릴 듯한 태도를 보이며 "야, 네가 더 힘이 세냐, 내가 더 힘이 세냐. 나를 그렇게 못 믿느냐."라고 말하면서 박○현을 넘어뜨린 다음 박○현의 몸을 짓누른 채 옷을 모두 벗기고, 박○현이 이불을 안고 웅크리자 "여기 집에는 아무도 없다. 악을 써 보아야 아무 소용이 없다."라고 말하면서 상체로 박○현의 가슴을 누르고 왼팔로는 박○현의 목을 감고, 발로 박○현의 양다리를 벌리고 오른손의 손가락을 박○현의 질에 집어 넣고, 그 손가락으로 박○현의 음부를 할퀴고 1회 간음하여 위계 및 위력을 행사하여 미성년자인 박○현을 간음하고, 유인한 미성년자에게 가혹한 행위를 가하였다는 것이다.

2. Judgment on the grounds of appeal

(1) The crime of inducing a minor under Article 287 of the Criminal Code refers to the act of inducing a minor by deceiving him/herself or a third party from his/her free living relationship or protection relationship with his/her intention by deception or her suspicion, and moving the minor under the factual control of himself/herself or the third party (see, e.g., Supreme Court Decisions 76Do2072, Sept. 14, 1976; 95Do2980, Feb. 27, 1996). Here, the factual control refers to the physical and practical control relationship with the minor. The latter part of Article 5-2 (2) 3 of the Aggravated Punishment, etc. of Specific Crimes Act provides for the aggravated punishment against the person who committed the crime of inducing a minor. Thus, the defendant's attempt to establish the crime should be proved by the evidence that the minor had the intent to move the minor to his/her or the third party's physical and empirical control and by deceiving or treating the minor under the above control.

As to the above facts charged, the defendant did not go home under his own judgment on his own will to be a model or motion picture match, and the defendant, who, after soliciting his home to his home to his home on several occasions, made his home to contact his family, and eventually, did not have sexual intercourse with his home. The defendant consistently argued that the evidence of the judgment, including the contents of his statement of Park ○-o, employed as evidence of guilt, in this case, is reliable, and whether the defendant is under a factual control of his Park ○-o, should be examined in order to prepare for the circumstances and records revealed.

(2) At the time, the Defendant, as 29 years of age, opened a house, opened a theater under the name of a wedding, operated a theater. On the other hand, the Defendant, who acquired the qualification for an assistant nurse, had worked at the mother’s father and mother’s clinic operated by Nonindicted 5. On the other hand, in 197, the Defendant was able to have English lectures and the operation of a private teaching institute in the 1997, when entering the East Asia’s junior college industry and the 1997.

Around August 196, 196 when he was enrolled in the Gambol High School in Gwangju-si, the Defendant was aware of the fact that he was elected as a photographic model of the above magazine and published his photograph in the above magazine. Meanwhile, at that time, the Defendant was a private right by introducing his mother Nonindicted 6 of Gamburi-gu around that time. He asked the Defendant to help him enter the entertainment community while continuing telephone contact with the Defendant.

(3) On April 13, 1997, the Defendant, on his own view, presented three copies of his photograph to the filmer who was aware of himself, stating that she was shot in the gold sn't gymn's sym sym sym sym sym sym sym sym sym sym sym sym sym sym sym sn's photograph

However, the statement of the above Park Jong-ok stated that the police had the front and rear at least several times after the front and rear body was marked at the police (the 11th page of the investigation record), that the defendant had the clothes affixed and affixed one film and affixed one copy with nuddd (57 pages of the investigation record), that the prosecutor made a statement only when he had the nudic photo affixed (148 pages of the investigation record) (148 pages of the investigation record). In the court of first instance, the court of first instance made a statement that 3 and 4 were placed in the baldic photo and the baldic photo was displayed in the baldic body, and 3 copies were taken in the baldic body (350 pages, 364 pages of the trial record), and that the contents and quantity of the baldic body photograph clearly stated in the baldic body record is very probable to suspect the truth.

(4) The Defendant asserts that on April 19, 19, the Defendant did not have had a telephone conversation with his own home, and did not encourage him to leave the home as a promise to give a film, and on April 13, 200, as he promised in advance, on April 20, as he promised in advance, he met on April 13, 200, and on that day, ○○ was a member of his family, and that she was going to go to Seoul, and that she was going to go to her home, and that she was trying to get a film distribution.

First of all, as a result of the investigation of the details of the out-of-the-spot telephone number on the home page on April 19, 200, it appears in the records that there was no one who had been the defendant in the area of YY and the out-to-date telephone call on April 19, 200. On April 13, 200, it is doubtful as to whether there was a telephone conversation to induce the out-to-date as shown in the facts charged on April 19, 200.

In addition, the statement of Park ○-hwan made by the defendant as if the defendant were to make a motion picture in 5 months, and there is no mention about whether the defendant was entitled to leave the house, and there is no explanation about whether the defendant would make a motion picture by resolving the board and lodging in the future and by going through any channel after the lapse of 10 days, and there is no reason to see that the gambling ○○ demanded that the defendant comply with such a commitment.

In addition, even if the defendant was in existence, who had opened the curriculum of a university and the day of a private teaching institute at the time when he left the house of fathercheon, and actually left the house, the defendant seems to have been in good faith in the work of a school and the day of a private teaching institute as before. It is recognized that the defendant had sexual intercourse with him or had no intention to see such intention even if he had sent a variety of nights at the same home or in the inn and in the same place as ○○, and there is no other motive for the defendant to commit any crime that may attract the ambry.

(5) The Defendant, on April 20, 200, proposed that 10 years of gambling, she returned to her house after she went on a prisoner of war on several occasions, but she did not hear her house on the ground that she did not interfere with her omission, etc., and she argued that she had been extremely free living at her place.

According to the Defendant’s statement and the Defendant’s statement, it is recognized that the following facts are established. Since April 20, 200, Park Jong-ok introduced that he was locked with the Defendant at his own house, and that he was the Defendant’s blind village according to the Defendant’s university. Even in the absence of the Defendant, he was able to attend and play a party room, singing room, or singing room, etc., and even if he did not want to do so, he went to his house because he did not want to do so, and he was able to do so at the same time. ○○○ stated that he want to show a shower, and that he was able to do so at the same time with the Defendant’s house: He was 0 times in Seoul, and that he was able to do so with the Defendant’s house-to-door. The Defendant was 1,000,000, and that he was 4,000,000.

According to the above facts, it is difficult to recognize the credibility of the statement of Park Il-sik, which corresponds to the facts charged, inasmuch as Park Il-sik's statement was not under the defendant's real control due to the threat or deception of the defendant, because it was made by the free will of Park Il-sik's free will, and the attitude of family members, such as the omission, was hard to see that it was not even under the influence of the defendant's real control.

(6) On April 24, 200, the Defendant called on the house of ○○○○○, and asked Nonindicted 2 to take measures so that ○○○○○ might not have his mother go to the school due to the regular study at school. On April 26, 200, the Defendant called on April 27, 200, and met Nonindicted 2 and 3, etc. on the said ○○○○ House. At the time, the Defendant, as Nonindicted 3 and her relatives are seriously threatened with the Defendant, was frighten, and made a false statement that she was contacted with the Defendant. At the request of Nonindicted 3, etc., Nonindicted 3, etc., directed him as the Defendant’s office, sent him to the so-called her to the so-called her so-called her to the so-called her husband and she had come to the said situation, and she did not have sexual intercourse with him on the face of 040 hours, and thus, she did not have his clothes.

First, it is difficult to understand that 00 00 p.m., 00 p.m., at the place of the above promise, her mother was willing to leave, but the Defendant was unable to have, but if her f.m., her f. and her f.m., her f., her f.m., and her f.m., her f.s., her f., and her f., her f.s., her f., and her f., her f.

Next, it was intended for the Defendant to take the Park ○-dong to go from the ambry to the ambry, and the fact that Park ○-do had heard the horses of the Defendant and recognized the ambry according to the ambry. Thus, it cannot be deemed that the Defendant had induced Park ○-do to do so.

On the other hand, as seen earlier, the Defendant had been working as an assistant nurse at a mountain clinic, and two times in the room of 00 and gold scambling room, and scambling with the scambling room, and two times in the scambling room in the scambling room, even though he was scambling with the scambling room, prior to the instant case, it is evident by the statement at scambry. In addition, the Defendant was scheduled to start the Defendant’s house at 05:0 after 1 hour from scambling to scam and put scam to scam for Nonindicted 3. In light of the above facts, it is difficult to readily conclude that the Defendant had been forced to scam and scambling with the Defendant, even though he was under the influence of scambling with the Defendant, and thus, it is difficult to conclude that the Defendant had sexual intercourse with 4 scambambal.

Therefore, the credibility of the statement on the part of the defendant's sexual intercourse with Park Il-ok is also doubtful.

(7) The fact that Park Jong-tae was sexual intercourse with the Defendant was made by Park Jong-tae, on April 29, 200, after coming back to the Gwangju House on April 29, 200, the police officer came to hear such remarks at the end of his interrogation and finding out that the Defendant, who was a police officer, was sexual intercourse with the Defendant, was aware of the fact that he was sexual intercourse with the Defendant, and then he was aware of the fact that he was sexual intercourse with the Defendant. He stated that Park Jong-ok was sexual intercourse with the Defendant for 3,4 days, even though he was found that he was sexual intercourse with the Defendant, and that his blood was continued for 3,4 days, and it is difficult to think that he was sexual intercourse with the Defendant, while it was difficult to think that the possibility that the blood transfusion occurred due to the influence of halogen, which was taken on April 20, 200, is medically widely recognized.

In addition, the Defendant was subject to serious intimidation from Nonindicted 3, etc. on April 27, 27, and was subject to serious intimidation on April 29, 200 after being transferred to his family. On April 30, 200, the Defendant was suspected of having sexual intercourse with the said Nonindicted 7, Nonindicted 3, and their relatives, and was seriously under suspicion that he had sexual intercourse with the said Nonindicted 7, Nonindicted 3, and her relatives, and suffered from the 6th left side of the Republic of Korea.

In light of the situation before and after such a delay, Park Jong-dae cannot completely exclude the possibility that he made a false statement in order to look at the responsibility of the defendant because he was seriously asked the cause of blood transfusion from his family, such as Nonindicted 7, etc.

(8) In a criminal trial, the finding of guilt must be based on evidence with probative value that can lead a judge to feel true beyond a reasonable doubt. If there is no such evidence, even if there is suspicion of guilt against the defendant, it shall be judged as the benefit of the defendant. If there is no such evidence, it cannot be said that the statement of Park Jong-dae, which is doubtful points, cannot be used as evidence of guilt, and other adopted evidence cannot be sufficient evidence to acknowledge the facts charged, and the fact that 00 ambambry and come together with the defendant cannot be readily concluded that the defendant moves to his de facto control by deceiving or harshing ○○, but the court below found the defendant guilty by the above evidence. Accordingly, the court below erred in the misapprehension of legal principles as to the crime of inducing minors, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out has merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)