(영문) 인천지방법원 부천지원 2019.5.24. 선고 2018고합232 판결

Defendant and B had a child and juvenile C (n, 16 years of age) engage in commercial sex acts and have the price divided. The Defendant and B conspired to operate the vehicle and move C to the place of commercial sex acts, and the Defendant intended to play the role of soliciting sexual buyers using the “U.S. F. F.P. F. F. F. F. F. F. F. F. F. F. F. F. F. F. F. F.,

At around 23:00 on October 28, 2017, the Defendant and B recruited sexual buyers via 'U.S.’ through 'U.S.’, and requested C to engage in commercial sex acts by receiving KRW 1.20,000 won from sexual buyers in the EMoel located in the lake located in Seocheon-si, Seocheon-si, the same day, around 23:30 on the same day, and through the same method from around that time to November 1, 2017, the Defendant and B assisted C to buy sex three times in total, such as the list of crimes No. 1 to 3.

As a result, the defendant and B conspired to arrange the act of buying sex of children and juveniles.

[2018Gohap293]

1. Violation of the Telecommunications Business Act;

No person shall recommend, arrange, mediate, or advertise a contract for the provision of telecommunications services necessary for the use of a mobile communications terminal on condition of providing or lending funds.

The defendant, together with F, purchased the victim G with the mental retardation disorder 3 in the name of the victim G with a cell phone in the name of the victim G with the mental retardation disorder, demanded the victim G to immediately sell the cell phone and prepare funds therefor, and let the victim purchase the cell phone in the form of a mobile phone, and conspired to sell the cell phone and divide the price into two parts.

On January 17, 2018, the Defendant introduced to F a mobile phone agent via which he/she can open his/her mobile phone using the foregoing method, and F provided funds to G around the same day by the foregoing method, and F provided G with a mobile phone agent near the IS located in Seoul H, which was introduced by the Defendant, that G opened his/her mobile phone in his/her name.

At around 12:00 on January 18, 2018, the Defendant received from Kwikset service and sold the opened mobile phone at the Seocheon-si, Seocheon-si, Seocheon-si, Seocheon-si, one by using Kwikset service, and then received KRW 700,000 from K Kset, which is in the sixth floor of Seocheon-si JA building, and is engaged in the business of purchasing mobile phones.

Accordingly, the Defendant solicited and arranged the contract for the provision of telecommunications services necessary for the use of mobile devices, in collusion with F, under the condition of providing or financing funds.

2. Fraudulent1);

around 12:00 on January 18, 2018, the Defendant: (a) sold KRW 700,000 mobile phone in the name of the victim G from the above K point, as described in paragraph (1), and (b) conspired with F by withdrawing KRW 500,000,000, which was left to the L account in the name of the victim following the death of the victim, by using the circumstance that F was unaware of the amount that the victim took out by deceiving the victim even though the victim was not aware of the amount that the victim took out under his/her name; and (c) withdrawing KRW 50,000,000,000, which was left to the L account in the name of the victim, without paying it to the victim; and (d) making it difficult for

According to the above public offering, F made a false statement that the sales proceeds were deposited into L account even if the victim sold the mobile phone at 700,000 won by telephone and received cash payment. From M around 16:41 on the same day, the Defendant withdrawn KRW 500,000 remaining in the victim’s L account in M around 16:41 on the same day, and then released KRW 50,000 from L account of the victim as if the victim was the money sold and received by the victim’s mobile phone in the name of the victim.

Accordingly, the defendant, in collusion with F, deceiving the victim and obtained 500,000 won from the victim, thereby deceiving the victim.

[2018Gohap295]

On June 30, 2018, the Defendant, using a computer drawn up by P from NO in Seocheon-si NT to "Internet Broadcasting", made the term of "R" and "S", and made the term of "T" an extreme pledge, using a computer drawn up by P, "V", "V" (a item with a value equivalent to 100 won per unit)", was received in return for the Defendant, from the visitors to the above channel.

As a result, the Defendant conspired with P to produce child or juvenile pornography for profit, and openly displayed it.

Summary of Evidence

[2018Gohap232]

1. Each legal statement of the defendant and B;

1. C’s legal statement;

1. A copy of Written statement;

[2018Gohap293]

1. Defendant's legal statement;

1. Copy of the prosecutor's statement concerning G;

1. A copy of the F Statement;

1. Details of loans deposited and certificates of opening of mobile phones;

1. CCTV image data;

1. Report on internal investigation (verification of details of transactions of credit accounts deposited);

[2018Gohap295]

1. Defendant's legal statement;

1. Copy of the protocol of examination of P by prosecution;

1. Copy of the written statement by the police of U;

1. Copy of the screen by cutting Q image images;

1. A copy of the investigation report (Arrest of suspects) and accompanying documents;

Application of Statutes

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

Article 11(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 30 of the Criminal Act, Article 11(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 30 of the Criminal Act, Article 30 of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 347(1) of the Criminal Act, Article 347(1) of the Criminal Act, Article 30 of the Criminal Act, Article 15(2)3 of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 30 of the Criminal Act, Article 95-2(3), and Article 32-4(1)2 of the Telecommunications Business Act, Article 30 of the Criminal Act (the solicitation and mediation of contracts concerning the provision of telecommunications services, the selection of imprisonment)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on the Protection of Children and Juveniles against Sexual Abuse (production, Distribution, etc. of obscenity) due to the production of obscenity by children and juveniles with the largest punishment]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., favorable circumstances, etc., for the following reasons for sentencing)

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. An employment restriction order;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Mar. 13, 2018); Article 56(1) main text and (2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Jan. 16, 2018)

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for a period of two years and six months from June to June 22;

2. Scope of recommended sentences according to the sentencing criteria;

(a) The first crime (the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (the act of mediating, etc.);

[Determination of Punishment] A sexual traffic crime subject to the age of 19 years; c. Mediation, etc. of sexual traffic subject to children and juveniles [Type 1] sexual traffic, or provision, etc. of known information in the information and communications network, etc.

[Special Aggravations] Aggravations: Intermediations using advertisements or high radio wave media

[Recommendation and Scope of Recommendation] Aggravation, 1-3 years of imprisonment

(b) Second crime;

[Determination of Punishment] Fraudulent Crime: General Fraud [Type 1] below 100 million won

[Special Sentencings] Reductions: If punishment is not granted or a significant damage is recovered;

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment from one month to one year

(c) Class 3 crime (Violation of the Telecommunications Business Act, and Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials): Whether the sentencing criteria are not set;

(d) Scope of recommending punishment according to the standards for handling multiple crimes: Imprisonment with prison labor for not less than one year (a concurrent crime with an offense for which no sentencing guidelines are set);

(e) Scope of recommended sentences revised by applicable sentences: Imprisonment with prison labor for two years and six months from June to June 22 (in cases where the scope of sentence recommended by the sentencing guidelines differs from the scope of applicable sentences in law, it shall be in accordance with the scope of applicable sentences in law);

3. Determination of sentence: Imprisonment with labor for three years, 40 hours, and 3 years restriction on employment;

◎ 불리한 정상

- Each of the crimes of this case shall be arranged three times to enable C to engage in sexual traffic, and the production of child and juvenile pornography, and show them via the Internet, etc. are not good.

- The Defendant introduced C in need of money to B so that C may engage in sexual traffic.

- The Defendant committed each of the crimes in this case during the period of suspension of execution due to special robbery and attempted special robbery with the effect that the Defendant received money from the victims by pretending to engage in sexual traffic.

◎ 유리한 정상

- The defendants fully recognize the facts charged.

- The Defendant voluntarily retired from committing a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.).

- C does not commence sexual traffic against his/her will or her U has contributed to child or juvenile pornography against his/her will.

- The child and juvenile pornography of this case were produced and shown by the co-offenders.

- The amount of defraudation of the crime of this case is not so large, and the victim does not want the punishment of the defendant by the original agreement with the victim.

◎ 그 밖에 피고인의 나이, 성행, 범행의 동기와 수단, 범행 후의 정황 등 이 사건 재판 과정에서 나타난 제반 양형 요소를 종합적으로 고려하여 주문과 같이 형을 정한다.

Registration of Personal Information

Where a conviction becomes final and conclusive against a person subject to registration of a sex offense against a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (a brokerage business, etc.) and a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (the production, distribution, etc. of obscene materials), the defendant is a person subject to registration of personal information pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and the defendant shall submit personal information to the competent authority pursuant to Article 43 of the same Act. Meanwhile, in full view of the crimes against the Act on the Protection of Children and Juveniles against Sexual Abuse (a brokerage business, etc.), the crimes against the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials), and the remaining crimes, the period of registration of personal information should not be reduced because it is determined that the period of registration of personal information is no longer necessary to be determined as a short-term period than the period imposed pursuant to

Parts of innocence

1. The summary of the facts charged [the violation of Article 15 (1) 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse]

As a result, the defendant and B conspired to arrange the act of buying sex of children and juveniles for business.

2. Determination

A. The elements of “business” refer to where a person continues to engage in certain business based on his/her social status, and in other words, a certain act is conducted repeatedly or repeatedly or by intention to continue to exist (see, e.g., Constitutional Court Order 2011Hun-Ga1, Oct. 25, 201). Whether such act constitutes “business” ought to be determined in accordance with social norms by comprehensively taking into account various circumstances, such as whether the act was repeated or continued, whether the act was conducted, whether the act was conducted, whether the act was conducted, and the purpose, size, frequency, period, and manner of the act, regardless of whether the person was simply equipped with human or physical facilities necessary (see, e.g., Supreme Court Order 2013Do8449, Sept. 27, 2013).

In particular, Article 15(1)2 of the Act on the Protection of Children and Juveniles against Sexual Abuse provides that a person who acts as a broker for purchasing sex of children and juveniles shall be punished by imprisonment for a limited term of at least seven years. On the other hand, Article 15(2)3 of the same Act provides that a person who acts as a broker for purchasing sex of children and juveniles shall be punished by imprisonment for not more than seven years or by a fine not exceeding 50 million won, and there is a significant difference in statutory punishment depending on whether a person who acts as a broker for purchasing sex of children and juveniles is engaged in business. As such, the reason why a person who acts as a broker for purchasing sex of children and juveniles is forcibly punished by force of arranging the purchase of sex of children and juveniles for a more convenient approach to the purchase of sex of children and juveniles, so that the child and juveniles can continuously become the counter-party to the purchase of sex of children and juveniles, and thus, the other party to the purchase of children and juveniles may continuously increase the form of criminal and sexual desire for the purchase of children and juveniles.

Considering the difference between the criteria for determining the relevant provisions of the Act on the Protection of Children and Juveniles against Sexual Abuse and the legislative intent thereof, it is necessary to strictly interpret whether “the act of arranging the purchase of sex of children and juveniles” is “the act of arranging the purchase of sex of children and juveniles.”

B. Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined by this court, it is difficult to deem that the evidence submitted by the prosecutor alone proves that the Defendant arranged the purchase of the child or juvenile sex as a business.

(1) The number of times the Defendant engaged in commercial sex acts is three times, and the period is only four days. C has stated that he/she engaged in commercial sex acts more than the number of days, but there is no evidence to acknowledge it.

(2) The defendant's total profits from sexual traffic in C shall not exceed 100,000 won.

③ The Defendant does not actively seek a child or juvenile who will engage in sexual traffic, and the Defendant does not seem to have directed and supervised C in the course of sexual traffic, and C voluntarily discontinued sexual traffic.

④ The Defendant’s crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.) committed sexual traffic is 31 children and juveniles who committed sexual traffic. Not only C and the Defendant’s will, but also W, as if there were more children and juveniles who engage in sexual traffic with the Defendant, W, who is sexually male and female, stated as if they were sexual traffic with the Defendant (see, e.g., Articles 362 and 591 of

3. Conclusion

Thus, since this part of the facts charged against the defendant constitutes a case where there is no proof of a crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the court found the defendant guilty of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (Good Offices, etc.), it is not judged not guilty in separate text, and the defendant does not consent to the public announcement of the verdict of not guilty pursuant to the proviso of Article 58

Judges

Termination of the presiding judge;

Judges Kim Su-soo

Judges Park Jae-young

Note tin

1) The gist of the facts charged in the instant fraud of the public prosecutor is that “the Defendant conspired with F to deceive the victim, thereby selling the mobile phone in the name of the victim, and by paying 500,000 won out of the paid amount.” However, according to the evidence duly adopted and examined by this court, F would not be deemed to have acquired property benefits of KRW 500,000,000,000,000,000 from the L account in the name of the victim, using the circumstance where the victim was unable to know that the amount was loaned to the victim, and then, the Defendant and F would not be deemed to have acquired property benefits of KRW 50,000,000,000,000,0000,000,000,000,000,000,000 won, which was kept in the victim’s account in the name of the victim. As such, the Defendant and F would not be deemed to have been acquired from the victim’s account in collusion with F.

However, the facts charged of the fraud of this case belong to the same scope, and even if recognized as such in light of the process of the deliberation of this case, it is deemed that there would be no substantial disadvantage to the defendant’s exercise of his right to defense. Therefore, the facts charged was revised ex officio without