Housing Daegu

Reference domicile Daegu

Defendant shall be punished by a fine of KRW 2,000,000. Where the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for the period calculated by converting KRW 100,000 into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

In light of the facility type, facility type, business type, etc. of the business establishment of this case operated by the defendant, it can be recognized that the defendant operated a business that provides services that are likely to cause sexual conduct or similar act in an educational environment protection zone. Nevertheless, the judgment of the court below which acquitted the facts charged of this case by misunderstanding the facts and affected the conclusion

2. Determination

(a) Relevant statutes;

[A person who commits any of the following acts or facilities in an educational environment protection zone in order to protect the health, sanitation, safety, learning, and educational environment of students shall not engage in any of the following acts or facilities (shortest omitted). A person who commits any of the acts or facilities prohibited in an educational environment protection zone in violation of Article 16 (Penalty Provisions) (1) and Article 9 shall be punished by imprisonment for not more than two years or by a fine not exceeding 20 million won, regardless of whether access and employment of juveniles are likely to be harmful to juveniles, but access to a business establishment (hereinafter referred to as "business establishment prohibited from employing juveniles") referred to in subparagraph 5 (a) (¥§ 8) or (a) (¥§ 9) and (b) 7 of Article 2 of the Juvenile Protection Act;

8) Business establishments providing services which are likely to engage in physical contacts or other acts, such as exposure to and exposure to unspecified persons, or to engage in similar acts, shall be determined by the Juvenile Protection Committee and announced by the Minister of Gender Equality and Family [Public Notice No. 2013-52 of the Ministry of Gender Equality and Family (Public Notice No. 2013 of August 13, 2013)] under subparagraph 5 of Article 2 of the Juvenile Protection Act, the Juvenile Protection Committee shall determine business operations operated in the form of each item of subparagraph 3 within the following type of facilities as "business establishments banned from access and employment of juveniles" and publicly announced as follows:

B. Specific determination

1) The purpose of Articles 9 and 16 of the Educational Environment Protection Act is to create a pleasant school environment by establishing a certain area around schools, which is a major activity space of students, as an educational environment protection zone within the minimum scope, so that juveniles can form a sound and harmonious personality, and ultimately to create an atmosphere that makes them able to learn by removing unexpected harmful factors from the surrounding environment, and by keeping them with an atmosphere that can concentrate on learning.

In addition, Article 9(13) of the Act on the Protection of Educational Environment, which applies to this case, prohibits businesses that provide services that are likely to cause sexual acts, etc. in educational environment protection zones, despite the Act prohibiting such acts itself as arranging sexual traffic or sexual traffic (the Act on the Punishment of Acts of Arranging Sexual Traffic, the Act on the Regulation of Amusement Businesses Affecting Public Morals, etc.). The purpose of this Act is to block "the possibility that harmful acts will be done to juveniles in the vicinity of schools where access by juveniles is frequent."

Therefore, in determining whether Article 9 subparag. 13 of the Educational Environment Protection Act is violated, it should be determined not by whether the relevant business establishment is a business that actually commits sexual acts, but by whether there is a possibility that sexual acts, etc. can be achieved. Furthermore, the relevant business establishment must meet the specific requirements of the type of facilities, type of facilities, and type of business as set forth in the notification of the decision on prohibition of access by and employment

On the other hand, there is room to regard the type of facilities and partial type of facilities as ordinarily equipped in a sound business establishment that does not engage in so-called compost business. Thus, it is necessary to strictly consider whether the business establishment of this case constitutes "business that is likely to cause physical contact, such as dancing, pet, compost, liquid shock, etc., or that is likely to cause sexual intercourse, or that is likely to cause sexual behavior or similarity," among the remaining requirements of the business establishment of this case separate from the facility type and facility type requirements. Thus, whether such sexual behavior is likely to be done should be objectively determined by considering whether the business establishment of this case's external business type, such as a signboard, etc., falls under or is likely to fall under the above business type, etc.

2) According to the above legal principles, first of all, according to the evidence duly adopted and examined by the court below, six rooms are partitioned into walls, and the entrance is installed on the side of the entrance. In addition to each room, it can be recognized that the shower room used by customers is installed separately. Thus, it is evident that the business of this case meets the requirements for the type of facilities and the type of equipment as stipulated in the above notice.

3) Next, in full view of the following facts and circumstances acknowledged by the court below based on the evidence duly adopted and examined, it is reasonable to view that the defendant was engaged in the business where physical contact was made at the instant business establishment, or sexually related body parts were exposed or similar.

① While the Defendant, at the time of the investigation by the police, primarily manages the skin at the instant establishment, he also manages the body flaps by using the ice flaps in addition to the management of the skin flaps. In managing the flaps, the Defendant stated to the effect that the flaps may occur when the flaps are administered, so that customers may come to the panty. In other words, even according to the Defendant’s statement, the instant establishment shall manage the customers who come to the flapse in the flapse, and in particular, when managing the flapse on the flaps, the body flapse is in contact with the customers. In light of the above business contents, each room of the instant establishment is partitioned into walls, and the entrance is opened to the outside, and thus, it is not entirely possible to open the door to the flapse.

② Also, at the time of the first detection, the Defendant directly stated in the statement that “I will receive 70,000 won from the son, guide him to show the shower, and guide him that I will go to the clothes of the body.” In addition, it is not ordinary to allow the Defendant to shower before receiving the skin management. Moreover, in light of the fact that the amount of KRW 70,00,000, which is the amount indicated in the statement, is not in conflict with the price posted inside the instant business, and rather is higher than the price for telegraph management, the Defendant does not seem to have operated only cosmetic for cosmetic purposes. In fact, it is more so if the settlement amount on the card sales slip discovered at the instant business establishment causes 90,00 won.

③ The Defendant asserted that the instant establishment was taken over to operate the skin management office, but the Defendant did not have the qualification of the assistant manager, but only registered the business as cosmetics and native retail businesses rather than the assistant management business, and it was confirmed that there was no assistant manager at the time when the police officer visited the instant establishment on March 27, 2018 after the initial detection, and that only female employees were stationed at the place of business, and that the said female employees did not know the name and contact information of the assistant manager. In light of the above, the above argument by the Defendant was insufficient.

④ It seems that the business district is not particularly developed around the instant business establishment, and the business establishment itself is located inside the building that appears as a tenement house, not a commercial building, in appearance. In addition, there is no signboard indicating the trade name of the instant business establishment or the skin management room, and only the signboard indicating the trade name of the instant business establishment, which is not the trade name of the instant business establishment, exists inside the first floor parking lot.

⑤ At the location of the instant establishment, two Red Seas were discovered, and this constitutes an adult product that can be used in the act of sexual intercourse or similarity. Considering the circumstances where the Rome was stored in the U.S. where the two Seas were stored in the U.S. where the two Seas were stored in the U.S., it is difficult to believe that the Defendant’s assertion that the Bame is the personal goods of the Defendant.

6) There is no circumstance that the instant business establishment has a phrase, such as “a dry field shop,” which is put up for the distinction from the so-called out-of-door business establishment.” Rather, there is only the circumstance that the instant business establishment appears to be prepared for regulating, such as where the entrance door is corrected, it is possible to divide the level into the entrance, and CCTV installed to monitor the outside of the business establishment is installed.

7) The first police officer found the instant business establishment upon receiving a report 112 that “the person who is engaged in the business of creating similarity between B and B in the instant place.” In light of the location, appearance, etc. of the instant business establishment, it is difficult to view the said report as a false report of a sound skin management business establishment, etc. in competition, and even considering the content of the report, it is likely that the instant business establishment might have been perceived as a place where sexual activity is conducted externally.

4) Therefore, the lower court erred by misapprehending the facts charged and adversely affecting the conclusion of the judgment, and the prosecutor’s assertion pointing this out is with merit.

3. Conclusion

Since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following is ruled again.

【Discretionary Judgment】

Punishment of the crime

No one shall conduct business in an educational environment protection zone, which is likely to cause sexual acts or similarity by dividing it by a smuggling, sealed space or partitions, or installing similar facilities.

On January 15, 2018, from around March 2, 2018 to around March 2, 2018, the Defendant: (a) at the 'A’ skin management business establishment operated by the Defendant in Daegu; (b) at the above place from '○ Middle School' to 178 meters away from '○ Middle School'; (c) at the inside the school environmental sanitation and cleanup zone, the entrance was partitioned by walls; (d) at the entrance, the entrance was installed, and (e) at the entrance, the entrance was installed, and (e) provided the marina service from 50,000 to 60,000 to the unspecified number of customers. Accordingly, the Defendant conducted business activities that are likely to cause sexual conduct or similarity within the educational environment protection zone.

Summary of Evidence

1. The defendant's partial statement in court below

1. Partial statement of the police suspect interrogation protocol against the defendant;

(a)A statement in each statement of the defendant, the competence and the preparation of the new statement;

1. On-site reports (in relation to educational environment protection zones), educational environment protection zones,GIS, internal investigation reports (in relation to disposable panty), control site photographs, investigation reports (in the on-site inspections, etc. of suspect operating establishments), and photographs taken outside and outside of the business places;

Application of Statutes

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

Articles 16(1) and 9 subparag. 13 of the Educational Environment Protection Act, selection of fines

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

In full view of the legislative purpose of the Criminal Procedure Act concerning the protection of the educational environment for sentencing under Article 334(1) of the Criminal Procedure Act, the period during which the defendant operates the business of this case, the size of the business of this case, the criminal records of the defendant, and other circumstances, including the defendant's age, character and conduct, environment, family relation, motive, means and consequence of the crime, etc., the punishment as set forth in the oral argument of

Judges Kim Jae-ho

Judicial Residence Support