[1] The meaning of "inducing" under Article 288 of the Criminal Code

[2] The case reversing the judgment of the court below which acknowledged a profit-making inducement crime against the defendant who has sexual intercourse with the minor's consent, on the ground that there was no inducement

[1] The term "induction" under Article 288 of the Criminal Code means the movement of a person from a free living relationship or a protection relationship to a person's or a third party's factual control.

[2] The case reversing the judgment of the court below which recognized a profit-making inducement crime against the defendant who has sexual intercourse with the minor's consent, on the ground that there was no inducement.

[1] Article 288 of the Criminal Code / [2] Article 3 subparagraph 1 of the Act on the Regulation of Amusement Businesses Affecting Public Morals, Article 10 (1), Article 288 of the Criminal Code, Article 364 (2) and (6), and Article 369 of the Criminal Procedure Act

[1]

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gong1996Sang, 1186 others, Counsel for plaintiff-appellant)

Defendant

Defendant

Attorney Choi Jin-jin

Suwon District Court Decision 95Gohap7 delivered on June 9, 1995

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

One hundred and sixty days out of the detention days before the judgment of the court below is rendered shall be included in the above sentence.

The charge of violating the Act on the Aggravated Punishment, etc. of Specific Crimes is acquitted.

1. Summary of grounds for appeal;

A. Fact-finding or misunderstanding of legal principles (inducing for profit-making)

The court below acknowledged the fact that the defendant inducedd the victim for the purpose of profit-making by misunderstanding the fact or inducing the victim, and thereby adversely affecting the conclusion of the judgment by misunderstanding the legal principles as to the mistake of fact or inducing the victim to do so. The judgment of the court below is erroneous in the misapprehension of legal principles as to the act of inducing the victim to do so.

B. Unreasonable sentencing

Considering the various circumstances of this case, the sentencing of the court below against the defendant is too unreasonable.

2. Judgment on misconception of facts or misapprehension of legal principles

A. Summary of the facts charged

Around December 12, 1994, the defendant sent out to the Gyeonggi-do Do-Eup (hereinafter omitted) in Gyeonggi-do (hereinafter omitted) in which he runs, and had the victim (the 13 years of age), who spawn spawn, spawn at the above boarding house, and spawn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn s

B. The judgment of the court below

The court below found the defendant guilty on the grounds that the defendant's statement at the prosecutor's office, some of the statements at the court, the police of the victim, and the statements at court.

C. Judgment of the court below

The term "induceivement" in Article 288 of the Criminal Code means the movement of a person from a free living relationship or a protection relationship to a person's or a third party's factual control.

In the instant case, there is room to regard that the Defendant’s expression as the substance of the facts charged that the Defendant would force the victim to drink even if she boomed and satisfed, if she had satisfly satisf.

However, in light of the records, including the statement of the defendant and the victim found guilty of the defendant and the victim, the defendant's statement that the victim moved from his or her own or a third party's factual control from the free living relationship or protection relationship as above, the victim went home and returned to his or her father around October 1994. On December 8, 194 of the same year, the defendant was aware that the victim was a woman released from his or her house on the same day, and the non-indicted was refused to go home as the summary of the facts charged, but the victim refused to go home, but the victim had already been detained in his or her opinion to go home to the 205 room, and the victim did not come back to his or her house after his or her refusal to go home to do so, and the victim did not go home from his or her house, but he or she did not go back to his or her house without his or her refusal to go home.

If so, at the time of the victim's appearance, the victim was in the state of protection of his/her guardian, and he/she was accommodated in his/her care with his/her house, and it does not move the victim who was free living conditions of the defendant to his/her own factual control. Even though the victim was made by his/her proposal, if the victim was found to have been under his/her own factual control because he/she was brutly and continuously under his/her own factual control to allow the victim to do so, the inducement for profit may be problematic. However, in light of the victim's age, living behavior, and friendship with the victim's proposal, the victim's statement, such as the summary of the facts charged by the defendant, cannot be viewed as having been harshed by the victim, and it cannot be viewed that the victim was under his/her own control, considering the victim's free living at the meeting of the victim as seen earlier, etc.

Nevertheless, the judgment of the court below which recognized that the defendant induceds the victim for profit is erroneous in matters of law by misunderstanding the legal principles as to the act of inducing the victim, and thus, the reversal is not exempted, and the fact of violation of the Act on the Regulation of Amusement Businesses Affecting Public Morals which sentenced one order for concurrent crimes is no longer maintained.

3. Conclusion

Therefore, the judgment of the court below is reversed under Article 364(2) and (6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing.

In addition to deletion of the criminal facts of paragraph (1) in the original trial, the criminal facts of the judgment of the court below are the same as the statement in each corresponding column of the judgment of the court below.

Application of Statutes

1. Article applicable to criminal facts;

Articles 10(1) and 3 subparag. 1 of the Act on the Regulation of Amusement Businesses Affecting Public Morals (Determination of imprisonment, respectively)

2. Aggravation for concurrent crimes;

Articles 37(former part), 38(1)2, and 50 of the Criminal Act (an aggravated punishment prescribed in the Act on the Regulation on Regulation on Amusement Businesses Affecting Public Morals to the effect that a person has engaged in prostitution on December 13, 1994, with the heavier penalty)

3. Calculation of the number of detention days before judgment is rendered;

Article 57 of the Criminal Act

The acquittal portion

The facts charged as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes are shown in the above 2-A, and as determined in the preceding grounds of appeal, it constitutes a case where there is no proof of crime and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure

It is so decided as per Disposition for the above reasons.

Judges Son Ji-yol (Presiding Judge)