Where the purport of additional collection and the scope of additional collection under Article 25 of the Act on the Punishment of Acts of Arranging Sexual Traffic / Where several persons jointly perform the acts of arranging sexual traffic, etc., the value of money and valuables and other property acquired as a crime shall be additionally collected.

Articles 19(2)1 and 25 of the Act on the Punishment of Acts of Arranging Sexual Traffic, Article 30 of the Criminal Act

Supreme Court Decision 2009Do2223 Decided May 14, 2009 Supreme Court Decision 2014Do7194 Decided August 20, 2014

Defendant

Defendant

Attorney Kim Jong-sung

Suwon District Court Decision 2018No901 decided May 14, 2018

The judgment of the court below is reversed, and the case is remanded to the Gu Government District Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The purpose of the additional collection under Article 25 of the Act on the Punishment of Acts of Arranging Sexual Traffic (hereinafter “the Sexual Traffic Punishment Act”) is to deprive an accomplice of unlawful profits from the said act in order to eradicate the act of arranging sexual traffic, etc. Thus, the scope of the additional collection is limited to the profits actually acquired by the offender. If it is impossible to confiscate money, goods, and other property acquired as a crime where several persons jointly engage in the act of arranging sexual traffic, etc., the amount of profits actually acquired by each accomplice shall be additionally collected. If an individual amount of profit is not known, the total amount of profit shall be equally divided and collected, and the entire amount of profit shall not be jointly collected from all accomplices (see, e.g., Supreme Court Decisions 209Do223, May 14, 2009; 2014Do7194, Aug. 20, 2014).

2. The summary of the facts charged against the defendant is as follows.

A. The Defendant is a business proprietor operating a marina business establishment (hereinafter “instant marina business establishment”) with facilities such as a marina room and shower room in Namyang-si ( Address omitted).

B. From June 1, 2017 to August 7, 2017, the Defendant employed illegal aliens of Thailand’s nationality as women to engage in sexual traffic, and found out the place of the instant marina business from many unspecified male customers, who received KRW 100,000 per capita KRW 1,80,000 as the price for sexual traffic, and allowed them to engage in sexual intercourse with women of sexual traffic, thereby violating the Immigration Control Act.

3. According to the record, the following facts are revealed.

A. Police officers at the △△△△ Police Agency obtained intelligence in which sexual traffic takes place at the instant marina business establishment, and arrested the Defendant at the time of the instant marina business establishment as flagrant offenders, including arranging sexual traffic, by controlling the instant marina business establishment on August 7, 2017.

B. The Defendant, at the police’s statement on the date of arrest, deemed “the person who works as an employee at the instant marina business establishment and who is the president,” but immediately reversed his/her statement, and was “the president.” On December 13, 2017, in the prosecutor’s statement, the Defendant called “the actual owner of the instant marina business establishment.”

C. On the other hand, at the time of the police control, women who were arrested with the defendant in the act of violation of the Immigration Control Act at the time of the police control were "the president of the instant marina business establishment" in most of the police statements on the day of arrest.

D. On January 25, 2018, the Defendant appeared on the first day of the first instance trial and recognized all the facts charged. On March 20, 2018, the first instance court sentenced the Defendant to imprisonment with labor for ten months and collected KRW 97,432,500 from the Defendant. In the investigation report (Calculation of criminal proceeds) of the evidence record 410 through 411, the amount of the total profit acquired by arranging sexual traffic from June 1, 2017 to August 6, 2017, calculated KRW 97,432,50,000, which deducts the consideration paid to the women of sexual traffic and the employee’s wage, based on the daily account books seized at the time of the crackdown.

E. On April 6, 2018, the Defendant appealed the judgment of the first instance on the ground of unfair sentencing. On the grounds of appeal submitted by a public defender to the lower court on April 6, 2018, the Defendant was not the Defendant but the Nonindicted Party, and the Defendant was limited to the extent of receiving the charge from the customers at the request of the Nonindicted Party, along with the written indictment against the Nonindicted Party.

F. The summary of the facts charged against the Nonindicted Party stated in the above indictment is as follows, and Article 25 of the Act on the Punishment of Commercial Sex Acts, which is the provision for confiscation and collection, was specified in the applicable provisions of law.

(1) The Nonindicted Party is the business owner operating the instant marina business, and the Defendant is the chief executive officer who is expected to be punished as a business owner if the instant marina business establishment is controlled.

(2) From February 2017 to August 7, 2017, the Nonindicted Party, in collusion with the Defendant, employed the instant marina business, and found the instant marina business place from many unspecified male customers, who received KRW 100,000 per capita KRW 1,80,000 from the price for sexual traffic, and had them receive KRW 180,000 from 10,000 per capita as the price for sexual traffic, thereby engaging in the act of arranging sexual traffic, etc.

G. On May 14, 2018, the lower court accepted the Defendant’s allegation of unfair sentencing on the grounds that “the person who led the commission of the instant act of arranging sexual traffic, etc. is the Nonindicted Party, and the Defendant is against the principal offender in the lower court’s disclosure,” and reversed the first instance judgment, and upheld the first instance judgment that recognized the Defendant’s additional collection amount of KRW 97,432,50 as it is, while sentencing six months of imprisonment.

H. Meanwhile, on May 24, 2018, the Nonindicted Party was sentenced to an additional collection of KRW 97,432,500, as well as one year and six months, by committing a violation of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. at the District Court of Jung-gu on the Punishment of Arrangement of Commercial Sex Acts, Etc. (Korean District Court Decision 2018Da1206, 823,906).

4. Examining the foregoing legal principles and the facts acknowledged in light of the records, it is difficult to accept the lower court’s determination that the entire amount of KRW 97,432,500, criminal proceeds from the arrangement of commercial sex acts, etc. conducted at the marina business establishment in the instant marina business from June 1, 2017 to August 6, 2017, is an additional collection charge against the Defendant. According to the reasoning of the lower judgment, the person who led to the crime, such as the arrangement of commercial sex acts, is the Nonindicted Party; thus, the actual owner of the relevant marina business establishment in the instant marina business establishment is highly likely to be the Nonindicted Party, not the Defendant. Accordingly, it cannot be ruled out that most of the profits from the arrangement of commercial sex acts were attributed to the Nonindicted Party, and that the amount of profit that the Defendant

The lower court should have deliberated on the amount of profit actually acquired by the Defendant at KRW 97,432,50 of the profits of the instant marina business establishment and recognized the amount of profit as an additional collection charge against the Defendant. Nevertheless, the lower court, without such deliberation, recognized the entire amount of profit of the instant marina business establishment as an additional collection charge against the Defendant, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal assigning this error is with merit.

5. The Defendant’s appeal is with merit, and this case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)