beta
Text
The judgment below
The part against the defendant shall be reversed.
Defendant shall be punished by a fine of KRW 4,000,000.
The defendant above.
Reasons
1. Summary of grounds for appeal;
A. The benefit that the Defendant acquired through the operation of the instant sexual traffic establishment does not exceed 23,540,000 won.
Nevertheless, the court below's collection of the above amount against the defendant is unlawful.
B. In light of the various sentencing conditions in the instant case of unfair sentencing, the lower court’s sentence against the Defendant (a fine of KRW 4,000,000, confiscation, etc.) is too unreasonable.
2. First, we examine the Defendant’s assertion of misapprehension of the legal doctrine.
The purpose of the collection under Article 25 of the Act on the Punishment of Acts of Arranging Sexual Traffic is to deprive passengers of unlawful profits from the act of arranging sexual traffic in order to eradicate the act of arranging sexual traffic. Thus, the scope of the collection is limited to the profits actually acquired by the offender. Thus, in a case where half of the amount received from the offender, such as buying and selling mediation, is paid to the sexual traffic women, the scope of the collection is limited to the actual acquired portion (see, e.g., Supreme Court Decision 2009Do223, May 14, 2009). According to the evidence duly adopted and investigated by the court below, ① the defendant's act of arranging sexual traffic to customers on an average of 4-5 days from June 13, 2012 to August 30, 2012; ② the defendant already paid half of the amount received from the customer, such as buying and selling mediation, and ③ the fact that the Incheon District Prosecutors' Office No. 2052, Feb. 29, 2012.
Therefore, if the amount of collection is calculated in the most favorable to the defendant in light of the aforementioned legal principles, the profit actually acquired by the defendant in return for the referral of sexual traffic is KRW 15,580,00 [the gross profit of KRW 34,760,000 ( KRW 110,000 and KRW 4 x 79 days) - the amount paid to the sexual traffic women ( KRW 18,960,000 ( KRW 60,000 and KRW 4 x 79 days) - seized profit of KRW 220,00];
Nevertheless, 23,540,000 won from the defendant.