2005Do8130 Violation of the Act on the Punishment of Acts of Arranging Sexual Traffic

Justices Kim Young-ran (Presiding Justice), Kim Hwang-shik, Lee Hong-hoon (Justice in charge), Ahn Dae-hee

Main Issues

 * 1) The meaning of "acts that are similar to sexual intercourse" and the test for finding them under Article 2 (1) 1 subparagraph Na of the Act on the Punishment of Acts of Arranging Sexual Traffic
 * 2) The case holding that where a manager runs a massage parlor in a way that a female employee hired by him grabs and stimulates a customer's sexual organ with her hands and let him ejaculate, her act can be deemed as an act of bodily contact for gaining sexual satisfaction similar to a sexual intercourse

Summary of Decision

 * 1) Considering the purport of the legislation of the above Act which is to eradicate prostitution and to protect the human rights of the victims of prostitution and considering the above legal provisions that do not distinguish sexual intercourses from acts that are similar to sexual intercourses, "acts that are similar to sexual intercourses" as stipulated in the above Act shall be deemed to refer to acts of penetrating inside the body through the mouth or the anus or at least acts for gaining sexual satisfaction similar to a sexual intercourse, and whether an act constitutes an act for gaining sexual satisfaction similar to a sexual intercourse shall be judged through a comprehensive evaluation of the place where such act was conducted, the clothes the people were wearing, the body parts that were touched, the specific content of the act, and the degree of the resulting sexual satisfaction.
 * 2) The case holding that where a manager runs a massage parlor in a way that a female employee hired by him grabs and stimulates a customer's sexual organ with her hands and let him ejaculate, her act can be deemed as an act of bodily contact for gaining sexual satisfaction similar to a sexual intercourse

Reference Provisions

 * 1) Article 2 (1) 1 of the Act on the Punishment of Acts of Arranging Sexual Traffic
 * 2) Article 2 (1) 1 of the Act on the Punishment of Acts of Arranging Sexual Traffic


 * Article 2 of the Act on the Punishment of Acts of Arranging Sexual Traffic (Definitions)


 * (1) For the purpose of this Act, the definitions of terms shall be as follows:


 * 1. The term "sexual traffic" means performing the act falling under any of the following items in return for providing and receiving money and goods as well as property interest or for promising the provision and receipt of money and goods as well as property interest for unspecified persons or acting as their counterparts:


 * (a) The act of having sexual intercourse; and


 * (b) The act of performing similar sexual intercourse by making use of part of body, including mouth and anus, etc. or devices


 * Defendant: Defendant


 * Appellant: Defendant


 * Counsel: Law Firm Chang-gong Attorney Oh In-sup


 * Judgment of the Court Below: Seoul Central District Court Decision 2005No2338 delivered on October 12, 2005

Disposition
The appeal shall be dismissed.

Reasons
The Grounds for Appeal are examined as follows.

Article 2 (1) 1 of the Act on the Punishment of acts arranging sexual traffic stipulates, "Prostitution refers to receiving or promising to receive monetary reward or other property profit from a random person and engaging in any of the following or being the other party." It also stipulates, "sexual intercourse" (subparagraph Ka) and "acts that are similar to sexual intercourse using body parts such as the mouth or the anus or other devices" (subparagraph Na). Considering the purport of the legislation of the above Act which is to eradicate prostitution and to protect the human rights of the victims of prostitution and considering the above legal provisions that do not distinguish sexual intercourses from acts that are similar to sexual intercourses, "acts that are similar to sexual intercourses" as stipulated in the above Act shall be deemed to refer to acts of penetrating inside the body through the mouth or the anus or at least acts for gaining sexual satisfaction similar to a sexual intercourse, and whether an act constitutes an act for gaining sexual satisfaction similar to a sexual intercourse shall be judged through a comprehensive evaluation of the place where such act was conducted, the clothes the people were wearing, the body parts that were touched, the specific content of the act, and the degree of the resulting sexual satisfaction.

According to the evidence legitimately adopted by the court below, the defendant was running a massage parlor that has hidden rooms with beds where a male customer would be guided, and a young female employee who would usually be wearing a short skirt and a short-sleeved tee would massage the whole body of the customer including his feet to sexually excite him, undress him, grab his sexual organ with her hands with lotion on, go back and forth on the penis just like engaging in a sexual intercourse and ultimately let him ejaculate. In accordance with the above legal reasoning and the above recognized facts, the above sales activities conducted at the defendant's parlor are enough to be deemed as acts for gaining sexual satisfaction similar to a sexual intercourse, therefore the decision by the court below reached on the same purport is just, and there is errors in the misapplication of laws as asserted in the grounds for appeal.

Therefore, the appeal shall be dismissed, and this decision is delivered with the assent of all Justices who reviewed the appeal.

Source

 * Supreme Court Decision 2005Do8130 Delivered on October 26, 2006, Supreme Court Library of Korea

2005도8130