Defendants are not guilty.

A. Defendants

(1) Even though the Defendants were not obligated to report under the former part of Article 3(1) of the Public Health Control Act (hereinafter “Act”), the lower court recognized the establishment of a joint principal offender against the Defendants. It was erroneous in the misapprehension of the legal doctrine of a joint principal offender of a crime by omission, which affected the conclusion of the judgment.

(2) Although the Defendants were merely workers of the Republic of Korea, the lower court determined that the Defendants engaged in beauty art business by misunderstanding the facts, and, in the case of Defendants 3 and 4, the lower court erred by misapprehending the facts, which found the Defendants differently from the facts of the date of commencement of their work at each of the small and medium stores and Samsung Points.

(b) Swords;

The sentence of the lower court (the suspended sentence of a fine of one million won per fine) is too unhued and unreasonable.

2. Summary of the facts charged in this case and the judgment of the court below

A. Summary of the facts charged in this case

Defendant 1 is jointly with (Trade Omission) Department Head of the Business Mobling Control Point, Defendant 2, Defendant 3, Defendant 4, Defendant 4, Defendant 5, Defendant 5, Defendant 1, the Head of the Business Mobling Point, the Head of the Business Mobling Point, and Nonindicted 1, the Head of the Business Mobling Control Point, the Head of the Business Mobling Control Office, the Head of the Business Mobling Office, the Head of the Business Mobling Office, the Head of the Business Mob

(1) Defendant 1, from October 2003 to April 11, 2006, installed at the pressure viscosa of the business (trade omitted) located in the pressure viscosa in Gangnam-gu Seoul, Gangnam-gu (Seoul), installed a marina room, etc., and managed the body's tension with the body that has caused telegraph by telegraph and hand to the customers who have left the place, such as cutting the tension with the body that has caused telegraph by telegraph, cutting down the face, face factoring, scream, etc., and as a result, provided money and valuables equivalent to KRW 100,000 per time, and provided beauty service for profit.

(2) From October 2003 to April 11, 2006, Defendant 2 installed at the new village of the company located in Seodaemun-gu Seoul Special Metropolitan City (trade name omitted), and installed a marina room, etc., and managed the body’s tension with the body of the body, which caused the telegraph to the customers who had been located there by a telegraph and hand, such as cutting the tension with the body of the body, cutting down the face, factoring, spamba, and cream, etc., and as a result, provided money and valuables of KRW 100,000 per piece of money and valuables, and provided cosmetic for profit.

(3) From October 2003 to April 11, 2006, Defendant 3 installed a small and medium-gu joint location (trade name omitted) business establishment, and installed a marina room, etc. to customers who have been located therein with a telegraph and a telecommunication to the customers by telegraph and hand, and managed the skin by hanging the tension of the body where the body was laid down, face, face, spons, cream, etc., and provided beauty services for profit by receiving money and goods equivalent to KRW 100,000 per time; and

(4) Defendant 4, from October 2003 to April 11, 2006, installed a mast, etc. at Samsungdong-gu Samsungdong-dong Samsung (trade name omitted), installed a utility-type room, etc. to customers who have been located therein, frighten the tension of body, such as cutting the body’s tension with the telegraph by telegraph and throwing the telegraph by hand, cutting the face, sticking the face, sprink, cream, etc., and operated cosmetic for profit by receiving money of 100,000 won per time; and in return, Defendant 4 is engaged in cosmetic business with money of 10,000 won per hour.

(5) From July 25, 2004 to April 22, 2006, Defendant 5 installed at the Busan-dong Busan-dong Busan-dong Busan-dong (trade name omitted) Busan-do Busan-dong-dong-gu Busan-si, and performed cosmeticing business for profit by receiving money equivalent to KRW 100,000 per time and receiving money from customers in return for the business of beautying for profit.

B. The judgment of the court below

The lower court found the Defendants guilty of the above charges by taking account of the Defendants’ respective legal statements and the written notifications of the violating business establishment.

3. Judgment of the court below

A. The former part of Article 3(1) of the Act provides that “a person who intends to run a public health business shall have facilities and equipment prescribed by the Ordinance of the Ministry of Health and Welfare for each type of the public health business and report to the head of the relevant Si/Gun/Gu.” Article 20(1)1 of the Act provides that “a person who fails to file a report under the former part of Article 3(1) shall be punished.” However, according to the above provision, the crime of violation of the Public Health Control Act due to a violation of the duty to report constitutes a criminal complaint which can be realized only by omission. The crime of violation of the duty to report constitutes a crime of omission. The co-principal among the crime of omission is established only when the elements of the crime are jointly liable to

B. In addition, according to the above provision, the obligation to report a public health business is granted to the “person who intends to run a public health business,” and the “person who runs the business” refers to the person who becomes the subject to whom the rights and obligations due to the business are attributed. Therefore, in the case of an employee or assistant of the business operator, it is difficult to regard

C. In full view of the following circumstances acknowledged by the lower court based on the evidence duly admitted and examined by the lower court, namely, (mutual omitted) Catho Korea operated the entire branch by the franchise store in operating each branch; (i) the branch office does not work only at one branch office, including the head office, but also at another branch office according to the personnel management of the branch office; (ii) profits accrued from each branch office belongs to both the head office and the head office of the branch office are not attributed to the head office; and (iii) the head office of the branch office received incentives from the head office as ordinary employees; (iv) although the head office received incentives according to the branch’s performance, it is difficult to treat only the head office of the branch office differently from the other employees; and (v) the head office of the branch office cannot be deemed to belong to the rights and obligations of the above Defendants.

D. As such, insofar as the Defendants did not have a duty to report common to the Defendants, co-principals of a violation of the Public Health Control Act due to a violation of the duty to report a crime of omission cannot be established. However, even when examining all the evidence of the submission of the inspection, it is insufficient to recognize the Defendants of this case as “a person who intends to conduct a public health business,” which is the subject of the duty to report a public health business,

4. Conclusion

Therefore, although the facts charged in this case constitute a case where there is no proof of criminal facts, the court below found the defendant guilty. Since the defendants' appeal pointing this out has merit, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged in this case is as shown in the above 2-A, and as stated in the above 3-A, it constitutes a case where there is no proof of facts constituting a crime for the same reason, and thus, a not-guilty verdict is rendered pursuant to the latter part of

Judges Kim Yong-soo (Presiding Judge)