In a case where the defendant was indicted for violating the Act on the Punishment of Acts of Arranging Commercial Sex Acts, Etc. by arranging sexual traffic by receiving KRW 400,000 as the expenses for providing alcoholic beverages and engaging in sexual traffic, when a police officer pretended to be a customer and able to engage in sexual traffic in order to raise a control performance, the case affirming the judgment of the court of first instance which dismissed the prosecution on the ground that the above control by the police officer constitutes an induced naval investigation by a criminal intent, in case where the defendant was prosecuted for violating the Act on the Punishment of Acts of Arranging Commercial Sex Acts, Etc.

The defendant was indicted for violating the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. by arranging sexual traffic through receiving 400,000 won in terms of the cost of providing alcoholic beverages and sexual traffic, when he/she operated an entertainment drinking house and demanding police officers to pretend to be customers and engage in sexual traffic in order to raise the control performance.

The case affirming the judgment of the court below holding that since it is not permitted to arrest a person who does not have the original criminal intent by using deceptive means, schemes, etc. and arrest the criminal by inducing the arrest of the criminal, it is clear that commercial sex acts conflict with our personality and values, but it is not permitted to engage in commercial sex acts, and it is also permitted to engage in commercial sex acts, and whether it is illegal in a specific case, it shall be determined in full view of the type and nature of the crime, the status and role of the inducer, the background and method of inducing the inducer, the response of the inducer, the reaction of the inducer, the punishment power of the inducedr, and the illegality of the inducing act itself, etc., on the grounds that police officers ordered high-priced alcoholic beverages, so that the defendant would be subject to monetary suspicion and pressure by ordering the defendant, and that police officers used means, such as East administration and appraisal, etc., as it is necessary to contact with the promotion of work inside the workplace, while it is not a prosecutor's proof that it is not an illegal naval investigation.

Articles 19(2)1 and 23 of the Act on the Punishment of Acts of Arranging Sexual Traffic, Articles 308, 308-2 and 327 subparag. 2 of the Criminal Procedure Act

Defendant

Prosecutor

Shin Chang-ho et al.

Attorney Lee Jin-sung

Suwon District Court Decision 2017Gohap1477 decided April 26, 2018

The prosecutor's appeal is dismissed.

1. Summary of the grounds for appeal;

In full view of all the circumstances, including the developments leading up to the control of this case, the statement made by the control police officer, the defendant's attitude after receiving the request for sexual traffic, and the fact that the defendant arranged sexual traffic before the control of this case, the control of this case does not constitute a criminal intent-oriented naval investigation. Nevertheless, the court below erred by misapprehending the fact that the prosecution of this case was dismissed by deeming the control of this case as a criminal intent-oriented naval investigation.

2. Determination

(a) The permission or disapproval of the investigation of a vessel;

(1) Supreme Court precedents

Unlike the fact that a method of investigation, which simply provides an opportunity to commit a crime to a person who has the criminal intent or facilitates the commission of a crime, may be allowed depending on the case where there is a mere method of investigation that leads to the arrest of a person who does not have the original criminal intent by means of tricks, tricks, etc., and thus inducing the criminal intent, it cannot be exempted from the illegality of an investigation into a ship which arrests the criminal. A public action based on such a naval investigation constitutes null and void in violation of the provisions of Acts (see Supreme Court Decision 2005Do1247, Oct. 28, 2005, etc.).

Therefore, it is not allowed to arrest a person who does not have the original criminal intention to commit a crime by using a deceptive act or an attack, etc., thereby inducing the criminal.

(2) Whether the specificity of the crime related to sexual traffic is recognized (negative)

The Supreme Court of Japan ruled that "in the investigation of drug crimes without direct victims, sexual traffic crimes, etc., where it is difficult to detect the relevant crime only with the ordinary investigative method, it shall be interpreted that it is permissible to investigate a vessel against a suspected person who has the intention to commit the crime as a voluntary investigation (asym)." (The Supreme Court Order 7No. 5, 333 of July 12, 2004 (No. 7No. 5, 333). Hembling, "effective countermeasures against sexual traffic through transping," "effective countermeasures against juvenile sexual traffic through transping," No. 30 subparag. 1 (2017), and 101 of Juvenile Protection Research Act."

In Korea, there is a view that it is necessary to allow naval investigation on the grounds that there are many difficulties in regulating and punishing sexual traffic due to the legislation that does not punish the attempted commercial sex acts in practice [Article 24 No. 1 (No. 6, 2005), No. 275].

It is clear that sexual traffic conflicts with our personality and values. However, in order to regulate this, the people should not be induced as criminal. In a rule of law, an investigative agency’s act of investigating a vessel by attack and alcohol is not allowed even with regard to sexual traffic (Article 60(6), No. 660(6), 85).

(3) The prosecutor bears the burden of proving whether the ship was investigated (the prosecutor).

There is a conflict of opinion as to whom the burden of proof is to be borne if there is a defense of a naval investigation (see, e.g., Supreme Court Decision 2009Da15488, Apr. 1, 200).

The Supreme Court's position is not clear, and there are ① cases where there is a defendant as if there is a defendant (Supreme Court Decision 63Do190 Decided September 12, 1963, Supreme Court Decision 2010Do3111 Decided April 29, 2010), and ② cases where it seems that the prosecutor had the burden of proof (Supreme Court Decision 66Do152 Decided April 22, 197).

In light of the constitutional principle of presumption of innocence and presumption of innocence, for example, unless there are special provisions on the burden of proof, such as Article 310 of the Criminal Act, it cannot be said that the prosecutor has the responsibility to prove that he was not a naval investigation. Therefore, the prosecutor must prove that he was not a naval investigation.

(4) Effect of the investigation into a vessel (Dismissal of Public Prosecution)

There are opinions such as the theory of innocence, the theory of acquittal, the theory of acquittal, and the theory of acquittal, including the opinion that the prosecution that is based on illegal naval investigation should be dismissed (the majority opinion), and the opinion that the prosecution should be dismissed (the cambing, the cambling, the center of Supreme Court Decision 2008Do7362 Decided October 23, 2008, the cambling of Supreme Court Decision 2008Do7362 Decided October 23, 2008, the cambling of Law No. 12 (No. 20

The Supreme Court held that a prosecution based on an illegal naval investigation constitutes a case where the procedure is null and void in violation of the provisions of the Act (Supreme Court Decision 2005Do1247 Decided October 28, 2005, the violation of the Act on the Control of Narcotics, etc. (fence) and the Act on the Promotion of Music Industry, etc., Supreme Court Decision 2008Do7362 Decided October 23, 2008, and Supreme Court Decision 2009Do3934 Decided July 23, 2009).

In light of the legislative intent of the revised Criminal Procedure Act (amended by Act No. 8496, Jan. 1, 2008) Article 308-2 (excluding illegally collected evidence) of the Criminal Procedure Act (amended by Act No. 8496, Jan. 1, 2008), the opinion of the theory of the judgment of innocence is acceptable in that it is necessary to grant the final and conclusive power of the judgment of innocence to the accused accused case based on illegal naval investigation. However, prior to the entry into the substantive judgment, it is necessary to conclude the judgment of acquittal before the dismissal of prosecution is completed at an early stage, and it is necessary to effectively realize the suppression effect of illegal investigation, while Article 326 of the Criminal Procedure Act limits the grounds for acquittal and Article 326 of the Criminal Procedure Act limits the grounds for acquittal and the investigation of naval ships do not fall under it, it is necessary to support the previous Supreme Court decision that the judgment of the dismissal

B. Review of the instant case

Whether it constitutes an illegal undercover operation in a specific case ought to be determined by comprehensively taking into account the type and nature of the relevant crime, the status and role of the inducer, the details and method of the inducer, the response of the inducer, the history of the punishment of the inducer, and the illegality of the inducing act itself (see Supreme Court Decision 2015Do11423, Sept. 10, 2015).

On the other hand, the court below determined that the control of the police officer of this case constitutes a criminal intent-oriented naval investigation on the grounds as stated in its reasoning. The judgment of the court below is justified on the grounds that there was no prosecutor's proof that it was not an illegal naval investigation on the ground that ① the police officer ordered high-priced alcoholic beverages to have the defendant gain monetary suspicion and pressure by ordering it, ② the police officer used means, such as Dong administration, appraisal, appeal, etc. to the necessity of contact with his superior for promotion in the workplace. (See Supreme Court Decision 2006Do2339 delivered on July 12, 2007).

(c) Preliminary determination: The nature of a crime committed against a disguised police officer at the scene of crackdown (negative)

(1) Status of practice

A) The case of conviction

For example, according to the request of a male police officer who made a disguised crackdown on customers at a place of business, the entertainment drinking house business owner is immediately arrested by a police officer controlling the sexual intercourse and is convicted of the business owner (Seoul Central District Court Decision 2015Da3871 decided Jun. 20, 2016 (Dismissal of Appeal, Dismissal of Appeal), Ulsan District Court Decision 2016Da1178 decided Oct. 14, 2016 (Dismissal of Appeal), and dismissal of Appeal).

The Supreme Court affirmed the lower court's judgment that convicted the Defendant who was the operator of marina business who arranged sexual traffic by taking sexual traffic into a smuggling in order to have the same act of similarity after receiving KRW 100,000 in cash from the police officer who pretended to be a customer in return for the act of similarity and guide him/her to do the act of similarity (Supreme Court Decision 2015Do10759 Decided September 10, 2015).

B) Case dismissing public prosecution

On the contrary, in a case where a singing practice room business operator arranged a contact loan to a male police officer who caused a disguised crackdown on customers, and thereby arrested a flagrant offender at the business place and indicted a public prosecution, the Supreme Court affirmed the judgment dismissing the public prosecution of the first instance court by holding that the lower court was justifiable (Supreme Court Decision 2008Do7362 Decided October 23, 2008).

C) The case of not guilty

In the case similar to this case, a party member was found not guilty of employees of entertainment establishments indicted as an intermediary act on the ground that there was no possibility of commercial sex acts between a disguised police officer and a disguised police officer, etc. (Supreme Court Decision 2018No2290 Decided April 18, 2019).

(2) Legal principles concerning the act of arranging sexual traffic

The Supreme Court held that the arrangement of prostitution under Article 25 (2) 3 of the former Prevention of Prostitution, etc. Act (amended by Act No. 7196 of Mar. 22, 2004, the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc.) refers to arranging or promoting convenience among the parties who intend to do so. Thus, for the purpose of arranging the act of prostitution, the parties who intend to do so must not necessarily reach the level of actually engaging in or face-to-faceing with each other, but at least, the parties who intend to do the act of prostitution must do so even if they do not have any involvement in the act of prostitution even if they do not actually connected with each other (see Supreme Court Decision 2004Do808 of Feb. 17, 2005), and the punishment of the act of prostitution, etc. under Article 25 (2) 3 of the Act on the Punishment of Acts of Commercial Sex Acts, Etc. (see Supreme Court Decision 201Do2174, Feb. 17, 2012).

(3) Determination

There is no ground to regard the crime of violation of Article 19 of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. as an abstract dangerous crime to protect public morals. Rather, considering that there is a provision punishing attempted crimes under Article 23 of the same Act, the punishment provision on the premise of concrete and the possibility of realizing a realistic sexual traffic is the penal provision on the premise of the realization of a realistic sexual traffic. ② Furthermore, it is clear that the police officer was not the party who intended to purchase the sex in real place. Therefore, it is reasonable to deem that sexual traffic between the police officer in charge of

Ultimately, even if an entertainment drinking club proprietor arranged a contact loan to a police officer who has an intention of sexual sales, the crime of violation of Article 19(2)1 of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. is not established.

In this respect, it is not possible to accept the prosecutor's appeal.

3. Conclusion

Since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judge Oi-su (Presiding Judge)