2017No4367

(a) Violation of the Punishment of Arrangement of Commercial Sex Acts;

(b) Abetting an offender;

(c) Violation of the Punishment of Arranging Sexual Traffic Act;

(d) A criminal escape;

1. A.

2.(a) B

3.c. D. C

4.(a)D

Defendant A, C, D and Prosecutor (as to the whole of the Defendants)

Yellow Britain, Kim Won-won (prosecution), and insular stone (public trial)

Attorney AH (the national election for the defendant A and B)

Attorney AI (the central office for defendant C)

Seoul Central District Court Decision 2017Da4491, 2017 Decided November 17, 2017

6277(Joint Judgment) Judgment

January 26, 2018

The judgment of the court below is reversed.

Defendant A and B shall be punished by imprisonment with prison labor for a year and six months, and by a fine of ten million won, and by imprisonment with prison labor for a period of six months, respectively.

When Defendant A and B fail to pay each of the above fines, each of the above Defendants shall be confined in a workhouse for the period calculated by converting 100,000 won into one day.

However, with respect to Defendant D, the execution of the above sentence shall be suspended for two years from the date of the final judgment.

To order Defendant D to be put on probation.

Seized evidence Nos. 1 through 4 shall be confiscated from Defendant A.

6010,000 won from Defendant A and 1.3 million won from Defendant B shall be collected respectively.

To order the defendant A and B to pay an amount equivalent to the above fines.

1. Summary of grounds for appeal;

A. Defendant A, C, and D

Each sentence of the court below is too heavy.

B. The prosecutor (as to the defendant)

Each sentence of the court below is too weak.

2. Determination

A. The lower court, on account of all the circumstances indicated in the reasons for sentencing, sentenced Defendant A to a fine of KRW 10 million, including one year of imprisonment and a fine of KRW 7 million, and sentenced Defendant B to a suspended sentence of two years and a fine of KRW 7 million for one year of imprisonment, and sentenced Defendant C to a fine of KRW 10 million, and a fine of KRW 5 million for Defendant D.

B. The scope of recommended sentencing guidelines set by the Supreme Court Sentencing Committee is as follows.

1) Defendant A: Imprisonment with prison labor of one year to four years and six months;

The actual substance of sexual traffic arrangement, etc.

【Scope of Recommendation】

Type 2 (Mediation, etc. of Commercial Sex Acts due to Business, Price Giving and Receiving, etc.) shall be aggravated (one year to three years of imprisonment).

【Special Convicted Persons】

Advertisement or mediation by using a medium with high radio wave;

The actual tax amount shall be 1 year to 4 years and 6 months by imprisonment.

2) Defendant B: Imprisonment with prison labor of one year to four years and six months;

The actual substance of sexual traffic arrangement, etc.

【Scope of Recommendation】

Type 2 (Mediation, etc. of Commercial Sex Acts due to Business, Price Giving and Receiving, etc.) shall be aggravated (one year to three years of imprisonment).

【Special Convicted Persons】

Advertisement or mediation by using a medium with high radio wave;

The actual contents of the crime: No sentencing criteria shall be imposed.

The actual tax amount shall be reduced by imprisonment with prison labor for not less than one year nor more than four years and six months.

3) Defendant C: Imprisonment with prison labor for a period of four months to one year

Doz. Assistance to arranging sexual traffic: None of the sentencing criteria.

Doz. Doz.

【Scope of Recommendation】

Conception of, and escape from, an offender (one year of imprisonment or more than four months);

4) Defendant D: Imprisonment with prison labor for up to three years;

The actual substance of sexual traffic arrangement, etc.

【Scope of Recommendation】

Type 2 (Mediation, etc. of Commercial Sex Acts due to Business, Price Giving and Receiving, etc.) shall be aggravated (one year to three years of imprisonment).

【Special Convicted Persons】

Advertisement or mediation by using a medium with high radio wave;

C. Considering all of the following circumstances revealed by the scope of recommendations and records on the above sentencing criteria, the sentence imposed by the court below to the Defendants is too uneasible and unreasonable.

(1) Defendant A and C: Cumulative offense

On October 22, 2013, Defendant A was sentenced to three years of imprisonment with prison labor for fraud using computers, etc. at the Seoul Western District Court on February 29, 2016, and the execution of the sentence was terminated on April 29, 2016. Defendant C was sentenced to one year and two months of imprisonment with prison labor at the Jungbu District Court on November 28, 2013 and completed the execution of the sentence on May 6, 2014. Accordingly, each of the instant crimes committed by Defendant A was wholly committed, and all of the parts related to aiding and abetting arranging sexual traffic by Defendant C were committed during the period of each repeated offense, and thus, the crime is very poor.

2. Defendant A and B: Possibility of criticism due to the continuation of the same crime

From March 16, 2017 to April 4, 2017, the Defendants engaged in the business of arranging sexual traffic in the name of N from the second floor of the Seoul Special Metropolitan City FF Building, which was controlled by the police, and operated the business of arranging sexual traffic again from May 1, 2017 to May 10, 2017. At the same time, the Defendants moved the place at this time to the third floor of the Seoul Special Metropolitan City, Seoul Special Metropolitan City, and operated the business of arranging sexual traffic from May 28, 2017 to June 13, 2017. In light of the fact that the above Defendants continued to conduct the same business again for a certain period of time or change the place of the same business, there is a high possibility of criticism against the above Defendants in light of the fact that each criminal period is not established, and thus, the Defendants were subject to warning of illegality of the police, and that the Defendants were subject to continuous criminal investigation.

(3) Defendant B and C: Helping an offender to commit an offense and attempting to commit an offense.

Defendant B instigated Defendant C to commit an offense. Defendant C, upon undergoing the police investigation three times a month between Korea and a month, made a statement as if the principal was the owner of a sexual traffic business establishment, and made a statement that the actual owner was at the stage of interrogation prior to the detention of the court on July 6, 2017, thereby deceiving an investigation agency for a considerable period of time and causing interference with the investigation by actively deceiving Defendant B. The act of attempting to be subject to punishment on a minor basis by using a person who has no criminal record of the same kind of type of crime or wanting to be subject to punishment on a certain condition is difficult or impossible to function as a criminal justice act, such as investigation, trial, and execution of punishment, and thus, it is extremely poor to the nature of the crime. Thus, the court should punish such crime with strict punishment.

(4) Defendants A, B, and D: The balance of sentencing.

With respect to the act of arranging sexual traffic between March 16, 2017 and April 4, 2017, and from May 1, 2017 to May 10, 2017, M who worked as an employee at the instant sexual traffic business establishment, was sentenced to imprisonment for eight months in this court. Even when considering the fact that M is strictly punished as it is during the period of suspension of the execution of the same kind of occupation, the sentencing for M as well as the sentencing for Defendant A and B, who is an employee, should be considered.

⑤ Criminal history of the Defendants

Although the Defendants did not have the same criminal records, they have a number of criminal records including those who were sentenced to a sentence or a suspended sentence.

3. Conclusion

Since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed, and the judgment is delivered as follows (Unless the judgment of the court below is reversed and the punishment is re-determined, the judgment on each of the grounds for appeal by the defendant A, C,

【Discretionary Judgment】

Criminal facts and summary of evidence

The summary of this court's criminal facts and their evidence has terminated the execution of the sentence of "the crime of the court below [criminal records] second sentence," and the defendant C was sentenced on November 28, 2013 to 1 year and 2 months and completed the execution of the sentence on May 6, 2014." The summary of the evidence changed to 1. "the last day of 2017 Highest 6277" in the part of 1. "the previous day of the court below" as stated in the corresponding column of the court below's judgment except for adding "the second day of release of the suspect C, second day of the disposition, report on the result of confirmation, and judgment" as stated in the corresponding column of the court below's judgment. Thus, it is accepted as it is in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

○ Defendant A: Article 19(2)1 of the Act on the Punishment of Acts of Arranging Sexual Traffic, Etc.; Article 30 of the Criminal Act (Provided, That Article 2017 type No. 79536 of the Criminal Act)

○ Defendant B: Article 19(2)1 of the Act on the Punishment of Acts of Arranging Sexual Traffic, Article 30 of the Criminal Act (the above 1.-A., but the above 1.-A., b.), Article 151(1) of the Criminal Act, Article 31(1) of the Criminal Act (a) of the Criminal Act

○ Defendant C: Article 19(2)1 of the Act on the Punishment of Acts of Arranging Sexual Traffic; Article 32(1) of the Criminal Act; Article 151(1) of the Criminal Act (a person who assists in arranging sexual traffic)

○ Defendant D: Article 19(2)1 of the Act on the Punishment of Acts of Arranging Sexual Traffic, Article 30 of the Criminal Act

1. Selection of punishment;

Defendant A: Imprisonment with prison labor and fines pursuant to Article 24 of the Act on the Punishment of Acts of Arranging Sexual Traffic

Defendant B: Imprisonment with prison labor and fines under Article 24 of the Act on the Punishment of Acts of Arranging Sexual Traffic shall be concurrently imposed on the crimes of violation of the said Act, and a choice of imprisonment shall be made on the crimes of aiding and abetting an offender.

○ Defendant C and D: Selection of each imprisonment

1. Aggravation of repeated crimes (Defendant A, C);

Article 35 of the Criminal Code (Provided, That in the case of Defendant C, as to the crime of aiding and abetting sexual traffic in violation of the Act on the Punishment of Acts of Arranging Sexual Traffic)

1. Mitigation and mitigation (Defendant C);

Articles 32(2) and 55(1)3 of the Criminal Act (the crime of aiding and abetting another in violation of the Act on the Punishment of Acts of Arranging Sexual Traffic, Etc.)

1. Aggravation for concurrent crimes (Defendant A, B, and C);

○ Defendant A and B: the former part of Article 37, Article 38(1)2 and 3, and Article 50 of the Criminal Act

○ Defendant C: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (within the scope of the sum of the long-term punishments of two crimes)

1. Detention in a workhouse (Defendant A and B);

Articles 70(1) and 69(2) of the Criminal Act

1. Suspension of execution (Defendant D);

Article 62(1) of the Criminal Act

1. Probation (Defendant D);

Article 62-2 of the Criminal Act

1. Confiscation (Defendant A);

Article 48(1)1 of the Criminal Act, Article 25 of the Act on the Punishment of Acts of Arranging Sexual Traffic

1. Collection (Defendant A and B);

Article 25 of the Act on the Punishment of Acts of Arranging Sexual Traffic

○ Grounds for calculating additional charges against Defendant A: Investigation report (calculated of additional charges)

○ Grounds for calculating additional collection charges on Defendant B: suspect interrogation protocol of Defendant B (Evidence No. 253 pages of evidence record)

1. Order of provisional payment (Defendant A and B);

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

The sentencing criteria set by the Supreme Court Sentencing Committee and the reasons for reversal, together with all the various kinds of sentencing conditions shown in the records, shall be determined as per the order (in the case of Defendant D, the sentence of suspended execution exceeding the lower limit of the sentencing criteria shall be imposed in light of the fact that Defendant D participated as an employee).

The judge of the presiding judge;

Judges Song Jae-Gyeong

Judges Park Jong-young

1) The lower court deemed that Defendant A and B violated the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. (the Act on the Punishment of Commercial Sex Acts, Etc.) was an all-inclusive crime; however, the crime committed from May 28, 2017 to June 13, 2017 was controlled at a place different from the existing commercial sex acts establishment, another trade name, and the employee was changed to Defendant D. Therefore, it is reasonable to deem that the act of arranging commercial sex acts on the third floor of the Seoul Special Metropolitan City, Gwanak-gu, Seoul Special Metropolitan City, was a renewal of criminal intent in light of the circumstances, such as the change of place, trade name, and employee change. From March 16, 2017 to May 10, 2017, the concurrent crime of arranging commercial sex acts committed on the second floor of the Seoul Special Metropolitan City FF building was committed.

2) As seen in Section 1 of each week, it is reasonable to view the business whose place has changed as a new crime due to the renewal of the criminal intent.