[1] The method of interpreting "a victim's express intent" as stipulated in the proviso of Article 16 of the Act on the Protection of Juveniles against Sexual Abuse, which is an anti-presidential provision

[2] The number of crimes committed in violation of Article 12(2)3 of the Act on the Protection of Juveniles against Sexual Abuse and the method of stating the facts charged in the case where juvenile sex trafficking has been mediated several times

[3] The method of indicating the order in a case where a crime prosecuted for an inclusive crime is recognized as concurrent crime, and only some of the facts charged are specified

[1] Considering the principle that limits the validity of a minor’s legal act, the purport that the previous interpretation or provision was amended as an offense subject to victim’s complaint, and the content of Article 3 of the Act on the Protection of Juveniles against Sexual Abuse, etc., it is reasonable to interpret the “victim’s explicit intent” under the proviso of Article 16 of the above Act in cases where the legal representative’s consent is obtained, barring special circumstances such as the death of the legal representative or other reasons.

[2] Unlike the crime of violating Article 12 (2) 3 of the Act on the Protection of Juveniles against Sexual Abuse, it is reasonable to view that in principle, "an act of arranging the act of buying sex" is established for each act of arranging sex, unlike the crime of violating Article 12 (1) 2 of the same Act. Thus, the facts charged should be stated so that it can be distinguished from other facts by specifying the date, place, and method

[3] In a case where a crime prosecuted for a single comprehensive crime is recognized as concurrent crimes, and only a part of the facts charged is specified, the prosecution for an unspecified part of the public prosecution constitutes null and void in violation of the provisions of the law, and thus, the prosecution should be dismissed. However, as long as the indictment is found guilty due to such a single comprehensive crime, the order does not separately dismiss the prosecution.

[1] Article 16 of the Act on the Protection of Juveniles against Sexual Abuse / [2] Article 12 (2) 3 of the Act on the Protection of Juveniles against Sexual Abuse, Article 254 (4) of the Criminal Procedure Act / [3] Articles 254 (4), 323, and 327 of the Criminal Procedure Act

Defendant 1 and one other

Ethiopis

Attorney Scarfeng et al.

Defendant 1 shall be punished by imprisonment for one year and by imprisonment for three years, respectively.

The number of detention days prior to the issuance of this judgment shall be 26 days per defendant 1, and 52 days shall be included in the above punishment against defendant 2.

However, the execution of the above punishment shall be suspended for two years for Defendant 1, and for four years for Defendant 2, from the date this judgment became final and conclusive.

To order the Defendants to provide community service for 120 hours each time.

1. Defendant 1

피고인 1은 2008. 10. 말경 인터넷 채팅을 통해 알게 된 가출 청소년인 공소외 1(여, 14세)에게 사귀자며 접근한 뒤 안산시 단원구 고잔동에 있는 ‘중앙모텔’ 210호실에서 공소외 1과 함께 장기 투숙하면서 ‘버디버디’라는 채팅사이트에 “안산 만남하실 분, 15녀”라는 채팅방을 개설해 놓고 이에 접속한 성명불상의 남자를 상대로 “조건합니다. 나이 15살, 키 155, 몸무게 45, 1시간 15만 원, 2시간 25만 원, 횟수 제한 없구요, 사진 없구요, 짱 귀여우니까 걱정마셈”이라며 채팅하여, 공소외 1로 하여금 이에 응하는 성명불상의 남자들을 상대로 같은 동에 있는 ‘매가넥스 12’ 극장 앞에서 만나게 한 뒤 위 ‘중앙모텔’로 함께 가 화대 명목으로 1시간에 15만 원, 2시간에 25만 원을 받고 성매매를 하도록 하는 방법으로 성매매 알선행위를 하기로 마음먹었다.

At around 16:00 on December 16, 2008, Defendant 1: (a) had Nonindicted Party 1, a juvenile, receive 2.50,000 won from a male on his name in the same way as the sex, and arranged the act of buying the sex of the juvenile.

2. Defendant 2

Defendant 2: (a) at around 19:00 on December 1, 2008, at the home of the Sinsan City, Defendant 2: (b) sent the victim Nonindicted Party 1 (the victim Nonindicted Party 14 years of age) to his home to take KRW 2.50,00 in return for commercial sex acts by accessing the hosting site, “Burdi,” “Iurdi, 15 women,” and sent the victim Nonindicted Party 1 (the victim Nonindicted Party 1) to his home; and (c) demanded the victim to take priority of his house to stop so as to stop, stop, and stop so, the victim’s desire to take the part of the victim’s seat with his hand, “Iurdi, I are the police,” and then, I do not want to take the victim out of his house and take the police, and then I do not agree with the victim’s attitude to do so.”

[Fact 1]

1. The defendant 1's partial statement

1. The second written statement of the suspect examination protocol prepared by the prosecution against the defendant 1;

1. The first written statement of the police suspect interrogation protocol against Defendant 1

1. Statement of the first police statement against Nonindicted Party 1

1. Each description and image of the “Burdiditing and Receiving Details” and each “Burdidiing and Receiving Details”;

[Judgment of the court below]

1. The defendant 2's partial statement

1. Legal statement of Nonindicted 1’s witness

1. The second written statement of the suspect examination protocol prepared by the prosecution against Defendant 2;

1. Partial statement of the police suspect interrogation protocol against Defendant 2

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

(a) Defendant 1: Article 12 (2) 3 of the Act on the Protection of Juveniles against Sexual Abuse (Appointment of Imprisonment);

B. Defendant 2: Article 7(1) of the Act on the Protection of Juveniles against Sexual Abuse and Article 297 of the Criminal Act

1. Discretionary mitigation;

Defendant 2: Article 53 and Article 55 (1) 3 of the Criminal Act (hereinafter referred to as the following circumstances in favor of the reasons for sentencing);

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Code

1. Suspension of execution;

Article 62(1) of the Criminal Code (The following circumstances considered in favor of the reasons for sentencing)

1. Social service order;

(a) Defendant 1: Article 62-2(1) of the Criminal Act, the main sentence of Article 59(1) of the Act on Probation, etc.;

(b) Defendant 2: Article 16 (2) of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof, the main sentence of Article 59 (1) of the Act on Probation, etc.

1. Defendant 1

Defendant 1 and his defense counsel asserted to the effect that Defendant 1 did not arrange for Nonindicted 1 to engage in commercial sex acts, by holding a string on behalf of Nonindicted 1, and by notifying Nonindicted 1 of the setting time, location, etc. to the effect that Nonindicted 1 had a sexual intercourse with his male. However, at the time, Defendant 1 and Nonindicted 1 used the said money by taking a “original intercourse” as the name of Nonindicted 1’s living expenses, etc. due to lack of living expenses, etc. while living together with the said person.

In light of the following circumstances acknowledged by the evidence mentioned above, i.e., (i) Defendant 1 opened a hosting site under his mother’s name and set a promise on his own with men; (ii) Nonindicted 1, at the time of Defendant 1 doing so, was unaware of the specific contents of the conversation; (iii) Nonindicted 1, who was engaged in a game, was called “original assistant system”; (iv) Defendant 1 had Nonindicted 1 had Nonindicted 1 made a statement to the effect that he was able to receive KRW 100,000 per hour and KRW 20,000 for two hours; and (v) had Nonindicted 1 made a statement to the effect that he was able to receive money from Nonindicted 1, 150,000 won and KRW 2,50,000 for two hours; and (v) had Nonindicted 1 made a statement to the effect that he was able to receive money from Nonindicted 1, 200,000 won, and even had been able to have been able to receive money from Defendant 1.

Therefore, the defendant 1 and his defense counsel's above assertion are not accepted.

2. Defendant 2

A. Defendant 2 and his defense counsel asserted to the effect that Defendant 2’s desire to take the victim Nonindicted 1, sealed the victim’s shoulder, and sexual intercourse with the victim, but at the time Defendant 2 did not state the victim’s statement that he was the police, and even if Defendant 2 made the victim’s statement to the above purport, the victim did not believe that Defendant 2 was the police, and thus, Defendant 2 did not have a situation where the victim’s resistance was impossible or considerably difficult.

However, considering the following circumstances acknowledged by the second statement of the police and the statement of the prosecutor's office about the non-indicted 1, i.e., since the second investigation into the police, the victim consistently demanded money from the defendant 2, but the defendant 2 attempted to go back to the sexual intercourse, and the defect that the defendant 2 would go back to this point and prevented the victim from being pushed off. At the time, the victim was able to go back to the police station because he did not want to go to go back to the victim, and the victim was able to go off to the victim without wanting to go back to the police station. Accordingly, the victim was able to go back to the victim, and the victim did not appear to go back to the police station that "It is difficult for the victim to go back to the victim," and the victim was able to go back to the victim, and the victim did not appear to be able to go back to the police station that stated that "the defendant 2 was able to go off to the police station."

Therefore, the defendant 2 and his defense counsel's above assertion are not accepted.

B. Defendant 2’s defense counsel asserts to the effect that the prosecution against Defendant 2 should be dismissed insofar as the victim appeared as the victim appears as a witness in this court and withdraws his previous wish to punish Defendant 2.

The above criminal facts are crimes falling under Article 7 (1) and Article 297 of the Act on the Protection of Juveniles against Sexual Abuse, and cannot be prosecuted against the victim's express intent under the proviso of Article 16 and subparagraph 1 of the same Article of the Act on the Protection of Juveniles against Sexual Abuse. According to the records, it is recognized that the victim has been present in this court as a witness and has withdrawn his/her wish to punish Defendant 2, but on the other hand, Nonindicted 2, the legal representative of the victim's father, who is the victim's father, wanted to escape strong punishment against Defendant 2. Thus, it is problematic whether the victim who is a minor of 14 years of age can independently express the above intent without the consent of his/her legal representative, and in this case, whether the court should dismiss the prosecution under Article 327 subparagraph 6 of the Criminal Procedure Act

① The principle of restriction on the effect of a juristic act by a minor shall also be respected in light of its ideology. Inasmuch as procedural stability is not friendly, it is reasonable to view that a legal act by a minor’s sole act is null and void, unless the Act specifically permits for the sake of his/her own interest. ② The reason why a legal act is interpreted or was previously prescribed as an offense subject to victim’s complaint is to strengthen the punishment purpose, rather than to protect the sexuality of a juvenile. The purpose of the amendment is to simply leave the existence of punishment for the victim’s own will, and to exclude his/her legal representative’s guardianship, such as a person with parental authority, etc. (see, e.g., Supreme Court Decision 200Du1600, supra., Supreme Court Decision 2000Du15489, Sept. 1, 2009). The legislative intent of the amendment is to prevent a legal representative from being subject to victim’s complaint under the proviso of the Criminal Procedure Act from being excessively subject to victim’s punishment, and thus, it can be interpreted as an independent provision of a juvenile’s complaint.

Thus, in this case without the consent of the non-indicted 2, the legal representative of the victim, it cannot be dismissed only by the expression of the victim's intent not to punish the victim. Thus, the defendant 2's defense counsel cannot be accepted.

1. Defendant 1

Considering the fact that Defendant 1 was an adult of 25 years of age, but did not return Nonindicted 1, who was a withdrawn juvenile, to the house, and that there is no need to strictly punish Defendant 1, taking into account the fact that: (a) Nonindicted 1, who was merely 14 years of age, whose sexual values had not yet been established on the ground that the money was needed; (b) it is not good that the crime was committed; (c) Nonindicted 1 was managed by Defendant 1; and (d) it is doubtful that Nonindicted 1 could grow with a correct sexual values as a woman of a person who was a female by Defendant 1; and (d) there is a need to strictly punish Defendant 1.

However, Defendant 1 does not have any previous conviction except for those who have been punished for violating the Military Service Act; currently, Defendant 1 and Nonindicted 1 agree with each other; Defendant 1 does not require Nonindicted 1 to make a forced term "original guidance"; Defendant 1 repents his mistake in depth; Defendant 1 is taking into account various sentencing conditions indicated in the instant pleadings, such as the Defendant's age, character and conduct, environment, and circumstances after the crime.

2. Defendant 2

In light of the fact that Defendant 2 raped the victim who is only 14 years of age, and the nature of the crime is not good. In particular, Defendant 2 is an adult of 23 years of age, and Defendant 2 was trying to “original guidance” with his age to satisfy his own sexual desire, and Defendant 2’s act seems to have suffered a considerable mental shock, and there is no need to strictly punish Defendant 2, taking into account the following: (a) it is necessary to protect the victim as an adult of 23 years of age so that he can have a correct sexual values and grow up; (b) it seems that Defendant 2 would have received a considerable mental shock; and (c) it is necessary to ensure that the victim can grow up with a correct sexual values as a female of one of the victims.

However, Defendant 2 was the first offender without any previous criminal record, Defendant 2 deposited a considerable amount for the victim, and the victim himself/herself does not want to be punished, taking into account various sentencing conditions as shown in the arguments of this case, such as the age, character and conduct, environment, specific circumstances and methods of the crime, and circumstances after the crime.

1. Summary of this part of the facts charged

피고인 1은 2008. 10. 말경 인터넷 채팅을 통해 알게 된 가출 청소년인 공소외 1(여, 14세)에게 사귀자며 접근한 뒤 안산시 단원구 고잔동에 있는 ‘중앙모텔’ 210호실에서 공소외 1과 함께 장기 투숙하면서 ‘버디버디’라는 채팅사이트에 “안산 만남하실 분, 15녀”이라는 채팅방을 개설해 놓고 이에 접속한 성명불상의 남자를 상대로 “조건합니다. 나이 15살, 키 155, 몸무게 45, 1시간 15만원, 2시간 25만원, 횟수 제한 없구요, 사진 없구요, 짱 귀여우니까 걱정마셈”이라며 채팅하여, 공소외 1로 하여금 이에 응하는 성명불상의 남자들을 상대로 같은 동에 있는 ‘매가넥스 12’ 극장 앞에서 만나게 한 뒤 위 ‘중앙모텔’로 함께 가 화대 명목으로 1시간에 15만 원, 2시간에 25만 원을 받고 성매매를 하도록 하는 방법으로 성매매 알선행위를 하기로 마음먹고, 2008. 11. 중순경부터 같은 해 12. 16.까지 사이에 위와 같은 방법으로 청소년인 공소외 1로 하여금 총 10여회에 걸쳐 성명불상의 남자들로부터 화대 명목으로 15만 원에서 25만 원까지 받고 성교하도록 함으로써 청소년의 성을 사는 행위를 알선하였다.

2. Determination:

Article 254(4) of the Criminal Procedure Act provides that "The description of facts charged shall specify the time, date, place, and method of a crime, so that the facts can be specified." The purpose of Article 254(4) is to clarify the object of the trial so as to seek the efficiency and speed of the trial by clarifying the object of the trial, and at the same time to facilitate the exercise of the defendant's right to defense by specifying the scope of defense. Thus, the prosecutor must include specific facts that meet the requirements for organizing a crime in order to distinguish facts from other facts (see Supreme Court Decision 2005Do3777, Jun. 15, 2006, etc.). Meanwhile, unlike Article 12(2)3 of the Act on the Protection of Juveniles against Sexual Abuse, it is reasonable to view that each brokerage act constitutes "the crime of arranging acts of purchasing sex" in principle, unlike Article 12(1)2 of the same Act, so that each brokerage act can be distinguished from the facts by specifying the date, place and method of each brokerage act.

However, since the above facts charged does not specify the place and method of each crime at all, and the time is also very general, it cannot be deemed that the court has limited the object of the trial to the extent that it does not interfere with the exercise of the defendant's right to defense.

Therefore, this part of the public prosecution should be dismissed pursuant to Article 327 subparagraph 2 of the Criminal Procedure Act because the procedure for indictment is null and void in violation of the provisions of the law. However, as long as the prosecution was instituted on December 16, 2008 due to a single comprehensive crime, the prosecution is found guilty of violating the Act on the Protection of Juveniles from Sexual Abuse (i.e., brokerage business), a separate dismissal of prosecution shall not be ordered in the disposition.

Judges Posckic fever (Presiding Judge)