2011Gohap47 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (for-profit abduction and inducement)

2) thief

신 ▼ ▼

Seoul Central Residential Jung-gu

Seoul District Court in charge of the former North Korea in its original domicile

Kim Chang-woo

Attorney Kang Jin-ho (National Ship)

April 8, 2011

A defendant shall be punished by imprisonment for not less than two years and six months.

Criminal facts

On October 10, 2007, the Defendant was sentenced to imprisonment with prison labor for a violation of the Act on the Protection of Juveniles from Sexual Abuse at the Seoul Eastern District Court on October 10, 2007, and completed the execution of the sentence in the Ansan Prison on October 21, 2008.

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Kidnapping and Inducement for Profit);

On February 7, 2011: around 00: Internet*** * D site, the victim's 00 overcambling that found the place of locking by leaving home and engaging in sexual intercourse with the aim of reworking without sexual intercourse with the victim's home. "In order to engage in sexual intercourse with the victim's residence, the victim was induced for sexual intercourse with the purpose of sexual intercourse."

2. Larceny;

On February 8, 2011: around 00, at the defendant's house located in Jung-gu Seoul Metropolitan Government, 80,000 won in cash was stolen from the wall wall owned by the female by using the gaps of victim leaps.

Summary of Evidence

1. Partial statement of the defendant;

1. 증인 윤▦▦의 법정진술

1. 윤▦▦에 대한 경찰 진술조서 ( 제1회 )

1. Previous convictions in judgment: Criminal records and investigation reports (report on the confirmation of repeated crimes);

Application of Statutes

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

Article 5-2(4) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 288(1) of the Criminal Act (the purpose of inducing sexual intercourse, the choice of limited imprisonment), Article 329 of the Criminal Act (the thief and the choice of imprisonment)

1. Aggravation for repeated crimes;

Article 35 (Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Kidnapping for Profit)

1. Aggravation for concurrent crimes;

1. Discretionary mitigation of the penalty provided for in the former part of Article 37, Article 38(1)2, Article 50, and the proviso of Article 42 of the Criminal Act; 1. Discretionary mitigation of the penalty provided for in the crime of violation of the Act on the Punishment, etc. of Specific Crimes (Kidnapping, Inducement, etc. for Profits)

Articles 53 and 55(1)3 of the Criminal Act (The following extenuating circumstances in favor of the reasons for sentencing)

Judgment on the Defense Counsel's argument

1. Summary of the assertion

In order to establish the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Kidnapping, inducement, etc. for profit), it is true that the victim had sexual intercourse with the victim without having sexual intercourse with the victim's family for the purpose of sexual intercourse. However, in order to establish the crime of abduction and inducement for profit, the victim should have expressed clearly defective intent by deceiving the victim, and transfer the victim under his/her own or a third party's factual control. However, according to the defendant's proposal, the victim has taken the sexual intercourse with the defendant without any resistance at the time of sexual intercourse with the defendant, and he/she took the house without the defendant's restraint. In light of this, it is difficult to view that the defendant's act satisfies the requirements for the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Kidnapping, inducement, etc.).

2. Determination

The term "induction" under Article 288 of the Criminal Act means the act of moving a person to another person under the actual control of the person himself/herself or a third party by getting the person to leave from his/her free living relationship or protection relationship according to the defective intention by deception or cruel means. The term "real control" here refers to a physical and real control relationship with respect to the person (see Supreme Court Decision 2007Do2318, May 11, 2007). Here, whether the act of moving to a person under a factual control pursuant to a defective intention is determined by comprehensively taking into account all the circumstances, such as the victim's age and mental maturity, the relation before the victim and the offender, the circumstances leading to such act, the specific form of act, the circumstances at the time of crime, etc.

The following circumstances acknowledged by evidence duly adopted and examined at this court, namely, ① the victim was a male under 28 years of age at a high school with physical and mental knowledge at the time of the crime of this case, and the defendant and the victim were first male under 14 years of age on the day. ② The defendant and the victim were in need of sending them to the point until they seek her right, and the defendant did not want to do so until they seek her right. The victim was able to know. The victim did not want to do so. The victim was able to use her breathly, and the victim did not want to have her right to use breathly until her right to use breathly, and the victim was able to use breathly, and the victim was able to use breathly and breathly, and the victim was able to use breathly until she sought her right to use breathly, and the victim was able to use breathly.

The defendant's false statement appears to have expressed a defective expression of intent that the defendant will go to the telecom or reside in the defendant's office upon the defendant's solicitation, and in light of the circumstances in which the victim came to the defendant's office or went to the defendant's office, it is reasonable to view that the defendant moved the victim to another person under his/her factual control by escaping from free living relationship.

Therefore, the above assertion by the defense counsel is without merit.

The reasons for sentencing in this case are as follows: (a) imprisonment with prison labor for not less than 2 years and not more than 6 months but not more than 25 years; (b) the Defendant was sentenced on October 10, 2007 by the Seoul East Eastern District Court to a crime of violating the Act on the Protection of Juveniles from Sexual Abuse (sexual purchase) and again committed the instant crime within the repeated period even after the execution of the sentence was completed on October 21, 2008; (c) the instant crime was induced for the purpose of sexual intercourse with the aged and led to sexual intercourse; (d) the Defendant committed the instant crime to a sexual intercourse with the aged and went to a sexual intercourse; and (e) the Defendant committed the theft of the money owned by the victim by using the gap in the locking, it is extremely poor in the nature of the crime; and (e) the Defendant did not receive a written use from the victim, it is inevitable to sentence the Defendant to the effect that the Defendant used the tangible force after inducing or inducing the victim; and (e) the Defendant’s motive and motive of the Defendant’s environment, etc.

Judges Shin-ho

For the purpose of judge Yang Sung

Judges Shin Jae-young