(영문) 창원지방법원 2015.4.16.선고 2015노573 판결

In order to establish the "act of selling and selling children" under Article 17 subparagraph 1 of the Child Welfare Act, the "transfer of real control over children" is required. In light of the following circumstances, the defendant cannot be deemed to have controlled children as real force, and the court below found the defendant guilty on the ground that the defendant attempted to sell and sell children and attempted to sell and sell children, thereby affecting the conclusion of the judgment by misapprehending the legal principles on the sale and purchase of children.

① The Defendant reported this article and contacted the victimized child with the victimized child, and there was no assault or intimidation in the first process. The Defendant had a sexual intercourse with the victimized child while drinking the victimized child at the her mother, and had a sexual intercourse several times with the F, the Defendant’s will. However, during the process, there was no assault or intimidation with the victimized child, and there was no assault or intimidation with the victimized child. The Defendant had a sexual intercourse with the victimized child at the her mother’s house, and had a sexual intercourse with the victimized child at the her mother’s house. However, during the process, there was no assault or intimidation against the victimized child, and the victimized child could leave the F, at any time, depending on her will.

③ Even in the process of selling a victimized child to E, the Defendant knew in advance that the victimized child will move to another person’s house, consented to the victimized child, and if the victimized child does not want it, the Defendant did not attempt to send the victimized child to E.

④ The Criminal Act does not punish a sexual intercourse by agreement with a minor under 13 years of age or older. This is due to the recognition of the right to sexual self-determination that allows a minor under 13 years of age or older to choose the other party to sexual intercourse and the other party to sexual intercourse. The victimized child also has the right to self-determination that allows a minor to choose whether to engage in sexual intercourse with the defendant at the age of 13 and in the process with the F’s house. Thus, the series of acts in this case should be deemed to be based on the victim’s own decision.

B. Unreasonable sentencing

The defendant asserts that the punishment sentenced by the court below (one year of imprisonment) is too unreasonable.

2. Determination

A. Judgment on the misapprehension of legal principles

1) The facts charged in this case

The defendant, around June 14, 2014, became aware of a smartphone dump dump dump dump cumping child C (n, 13 years old) is placed in a poor situation, such as sumping and sumping, etc., and if he/she wants to go to the telecom and introduces another male, he/she will go to the telecom, and if he/she intends to go to do so.

By using the fact that they will have sexual intercourse, they had sexual intercourse with their her mother, had her natives, have had sexual intercourse continuously, and have her sexual intercourse with the victimized child, and had the victimized child buy and sell the victimized child.

피고인은 2014. 6. 19. 12:30경 김해시 D아파트 506동 1002호 피고인의 집에서, PC를 이용하여 인터넷 토크온상에 "김해 15세 ㄱㅊㄴ(가출녀) 데려가실 분, 제시"라는 채팅방을 만들고, 방에 들어와 "80만 원에 가출녀를 데려가겠다."라고 하여 피고인의 아동매매 제안을 받아들이는 E에게 "오후 2시까지 김해 외동 부산은행 내에 기다리고 있으면 그 장소로 찾아가 80만 원을 받고 그 즉시 가출녀를 넘겨 주겠다."고 하였다. 피고인은 같은 날 14:00경 김해시 외동에 있는 부산은행 부근에서, 피해 아동을차에 태워 그곳으로 데리고 온 후 E에게 피해 아동을 매도하려고 하였으나, E의 신고를 받고 현장에 출동한 경찰관에게 체포됨으로써 미수에 그쳤다.

2) The judgment of the court below

The lower court found the Defendant guilty of the instant facts charged.

3) Determination of the immediate deliberation

A) Relevant provisions

The legislative purpose of the Child Welfare Act is to guarantee the welfare of children so that children can be born healthy and happyly and safely (Article 1), Article 3 Subparag. 1, and Article 3 of the Child Welfare Act is prohibited (Article 17 Subparag. 1), and Article 17 of the former Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014) prohibits the sale and purchase of children (Article 71(1)1) and the former Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014) from imposing imprisonment for not more than 10 years or a fine not exceeding 50,000 won (Article 71(1)1); and Article 73 of the Child Welfare Act amended by Act No. 12361, Jan. 28, 2014 provides that a person who has traded a child shall be punished by imprisonment for not more than 10 years (Article 71(1)1) and Article 73 of the previous Act).

Meanwhile, the Criminal Act provides that "a person who has purchased or sold another shall be punished by imprisonment with prison labor for not more than seven years (Article 289(1)), and "a person who has kidnapped or induced a minor" shall be punished by imprisonment with prison labor for not more than ten years (Article 287).

B) Determination

The crime of selling children under Article 17 subparagraph 1 of the Child Welfare Act is established when a child is transferred or transferred to another person in return for remuneration or consideration (see, e.g., Supreme Court Decision 2014Do7998, Nov. 27, 2014). Here, the term “the transfer or transfer of a child” means that the transfer of a child’s body is performed under the control of a child with real force. However, the Child Welfare Act stipulates that a child is under 18 years of age and does not limit the child, and thus, the crime of selling children is determined by comprehensively considering the relevant child’s age, recognition ability, relationship with the offender (seller or buyer), situation at the time, etc.

In full view of the following circumstances revealed by the evidence duly adopted and examined by the court below, it is reasonable to view that even if the defendant did not exercise direct assault or intimidation against the victimized child, the defendant had control over the victimized child who was only 13 years old at the time of the instant case as sufficiently as a real force. Thus, the court below's judgment convicting the defendant on the ground that the defendant attempted to trade and attempted to trade the victimized child, is justified.

Therefore, Defendant’s assertion of the misapprehension of the legal doctrine is not accepted. The victimized child was living together with his grandparents, etc. at the house located in the Gyeong-gun M in the Gyeong-gun in the Gannam-gun. The victimized child was divorced from 6 months after the victimized child was born, and his grandparents continued to grow up with the victimized child. The victimized child was born on June 14, 2014 on the ground that the victimized child was playing in the friendship Nan-gun’s home located in the Yan-gun-gun-gun-gun-gun-gun-gun-gun-gun-gun-gun-gun-gun-gun-gun-gun-si, and was playing by singing in the singing room at the same time. The victimized child was divided into the Defendant’s conversation with the victimized child, and the Defendant was divided into the Defendant’s one’s own child and the Defendant’s one’s one’s own child and the other’s one’s one’s one’s one’s own child and the other’s one’s one’s one’s own child.

② On June 14, 2014, the Defendant asked F (1980s) of whether the victimized child was sent to F (30,000 won) and asked F (30,000 won) of his own bank account number, and F (18:00 on June 14, 2014, the Defendant agreed to F (F) of F (F) of F (F) of F (F) of F (F) of F (F) of F (18:21 of the same day to contact the victimized child with F (1980s) when the victimized child was sent to F (F) and the victimized child was sent to F (F) of F (F) of F (F) of F (30,00 won, and F) of F (F) of F’s intent to take care of the victimized child.

③ On June 14, 2014, around 18:00, the Defendant and G moved the victimized child and N, or the vehicle driven by the Defendant, into the convenience store to drink immediately from the convenience store, and the Defendant had sexual intercourse with the victimized child, and the victimized child was drunkly drinking at the night at the night. As a result, the victimized child was under the influence of alcohol, and the victimized child was under the influence of alcohol, so that the victimized child could not have his body properly classified into the victimized child, by using the state where the victimized child could not have properly classified the victimized child, the Defendant sent F the care room to the mother room of the victimized child, and the F arrived at the mother room where the victimized child was under the influence of alcohol, so that the victimized child could easily get the victimized child to take the victimized child, and the Defendant sent F the word “the victimized child” to F so that the victimized child was under the influence of alcohol, and “the victimized child was under the influence of alcohol”.

④ At the time when the victimized child was f from the her mother to the her mother, the time was later than 12:00 p.m., the victimized child was in the situation where the body was unable to be properly divided due to the her drinking, and the distance from the her mother Kim Sea to the Gyeong-gun M where the victimized child was living at the her mother Kimhae-si, where she was in the her motherel, was about 60km, and the victimized child was in a situation where it was very difficult for her mother to return to the house on her own at that time, and there was no way other than the F to go through the her mother. Since the Defendant tried to use this point from the beginning to go over the victimized child to F without any resistance, it is reasonable to deem that the Defendant used the difficult situation of the victimized child, even if she had come to go through F without any resistance.

⑤ A victimized child was her f to move F to the studio located in F Kimhae-si, and stayed for about 5 days from the place to June 19, 2014. The Defendant found the studio of F for about 3 days, excluding 2 days out of 5 days, and had sexual intercourse with victimized children, and continued contact with victimized children through mobile phones.

6) At the time of stay in F’s studio, it appears that it was difficult for the victimized child to find his house alone, and the Defendant and F appear to have prevented the victimized child from leaving F’s studio by providing accommodation to the victimized child by taking advantage of these circumstances. Therefore, it cannot be deemed that the victimized child stayed in F’s studio based on her genuine intent. (7) The victimized child was contacted by F’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s h.

The facts of this case are recognized and reflected by the defendant, and the defendant has no record of punishment in the past, and the crime of this case is committed in the attempted crime, and deposit money for the recovery of damaged children in the trial.

However, it is difficult to view that the Defendant committed a crime by using the vulnerable places of the victimized child under the age of 13, who was born at the age of 13, and recognized the Defendant’s attitude as a precious personality body while committing the crime. The crime that abused the poor state of born children is going across society as a whole, there is a need to strictize the instant crime, and the Defendant’s past record of a protective disposition is considered as disadvantageous to the Defendant. In full view of other circumstances, comprehensively taking into account the Defendant’s age, character and behavior, environment, motive and background of the crime, means and method of the crime, and the circumstances after committing the crime, etc., as well as various circumstances that are conditions for sentencing and sentencing specified in the arguments and records of the instant case, it is not recognized that the lower court’s punishment is excessively unreasonable.

Therefore, the defendant's assertion of unfair sentencing is not accepted.

3. Conclusion

Since the appeal by the defendant is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition. [However, it is clear that the "Child Welfare Act" in the application of the law of the court below is an error of the former Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014). Thus, it is corrected ex officio in accordance with Article 25 (1) of the