[2] In a case where a general restaurant business operator actually conducts a business of cooking and selling mainly alcoholic beverages, whether it constitutes a business prohibited from employing juveniles under the Juvenile Protection Act (affirmative); and in a case where a business operator mainly conducts a business of cooking and selling mainly beverages during a week, whether it constitutes a business prohibited from employing juveniles under the Juvenile Protection Act (affirmative with qualification)

[3] The purport of Article 16 of the Criminal Code concerning mistake of law

[2] Article 21(2) of the Food Sanitation Act and Article 7 subparag. 8(b) of the Enforcement Decree of the Food Sanitation Act provide that general restaurant business is "business of cooking and selling food, which is a business of cooking and selling food, and of which drinking is allowed incidental to meals." However, Article 2 subparag. 5 of the Juvenile Protection Act provides that the classification of business establishments such as business establishments banned from employing juveniles shall be based on actual business activities, regardless of whether or not they are permitted, authorized, registered, reported, etc. required by other Acts and subordinate statutes in operating businesses. Thus, even if a business establishment which has obtained permission to operate general restaurants under the Food Sanitation Act is a business of cooking and selling food as well as cooking and selling food, it constitutes a business prohibited from employing juveniles under the Juvenile Protection Act if it is actually a business of cooking and selling food, and furthermore, among actual business types of general restaurants, it mainly prepares and sells food and alcoholic beverages during night hours, and in such a case, it constitutes a business establishment that mainly prepares and sells food and alcoholic beverages under the Juvenile Protection Act.

[3] Article 16 of the Criminal Code provides that an act of misunderstanding that one's act does not constitute a crime under the law shall not be punishable only when there is a justifiable ground for misunderstanding. It does not mean a simple legal ground, but it is generally accepted that it does not constitute a crime due to an act permitted by the law in the case of a general crime, but in its special circumstances, it is not punishable if there is a justifiable ground for misunderstanding.

1. Regarding ground of appeal No. 1

Article 2 subparagraph 5 (b) (1) of the Juvenile Protection Act provides that one of the business establishments banned from employing juveniles shall be prescribed by Presidential Decree among the food service businesses under the Food Sanitation Act. Article 3 (4) 2 of the Enforcement Decree of the Juvenile Protection Act provides that "business activities operated mainly in the form of business, such as cooking and selling mainly alcoholic beverages, rather than cooking and selling foods." Article 2 subparagraph 5 (b) of the Juvenile Protection Act provides that "business activities operated mainly in the form of business, such as cooking and selling mainly for cooking and selling alcoholic beverages, rather than cooking and selling foods," and Article 2 (4) 2 of the Juvenile Protection Act provides that "business activities of cooking and selling mainly in the form of business, such as cooking and selling mainly in the form of business, such as cooking and selling mainly for cooking and selling alcoholic beverages, shall be deemed business activities of cooking and selling mainly in the form of business prohibited from employing juveniles." Article 5 (2) of the Enforcement Decree of the Juvenile Protection Act provides that the act of cooking and selling mainly in the form of business prohibited from cooking and selling foods, etc.

In light of the adopted evidence, the court below acknowledged that the defendant's business establishment operated by the defendant was permitted to 'general restaurant' in the name of the defendant. The non-indicted 16 years old juveniles employed by the defendant as part-time work from 7:00 p.m. to 5:0 p.m. from 12:0 p.m. to 5:00 p.m. from 3:0 p.m. following the following day. In the absence of customers, the non-indicted 16 years old who operated the above business establishment is a juvenile from 16:0 p.m. to 11:0 p.m., the non-indicted 200 p.m., the non-indicted 200 p.m., the non-indicted 200 p.m., the non-indicted 200 p.m., the non-indicted 16 years old who operated the above business establishment and the non-indicted 3 employees of the above business establishment.

In light of the records and the legal principles as seen earlier, the fact-finding and decision of the court below is just, and there is no error of law such as misunderstanding of legal principles as to the Juvenile Protection Act or misunderstanding of facts.

2. Regarding ground of appeal No. 2

According to the records, the above businesses operated by the defendant mainly for cooking and selling food do not fall under business establishments banned from employing juveniles, so employment does not conflict with the Juvenile Protection Act even if the defendant employs juveniles, or the defendant merely claims the grounds for appeal, such as the lack of criminal intent or the improper sentencing, since the non-indicted did not recognize that the defendant was a juvenile. Thus, it cannot be said that there was an independent argument on legal mistake in the defendant's assertion. Thus, even though the court below judged only the grounds for appeal to the above purport and did not make a separate decision on legal errors, it cannot be said that there was an error of omission of judgment, as otherwise alleged in the ground of appeal.

In addition, Article 16 of the Criminal Act provides that an act of misunderstanding that one's own act does not constitute a crime under the law does not mean just a site of law. It does not mean a simple act that is generally permitted under the law, but it is generally recognized that one's own act does not constitute a crime if there is a justifiable reason to mislead misunderstanding. (See Supreme Court Decision 2000Do3051 delivered on September 29, 200, Supreme Court Decision 2003Do451 delivered on April 11, 200, etc.). The defendant's ground of appeal is that the defendant was aware that one's act of misunderstanding that one's own act of cooking and selling foods would reduce the amount of fine if he was permitted by law, or that the defendant's act of misunderstanding and selling foods would not conflict with his own act of admitting that one's own act of misunderstanding and eating is not a legitimate reason to interpret that it does not conflict with the provisions of the Juvenile Protection Act.

3. Regarding ground of appeal No. 3

According to the records, the defendant employed a juvenile non-indicted on June 14, 2002 at the above business establishment operated by the defendant, and the non-indicted on July 6, 2002 at the time when the above business establishment was controlled was in operation in the above business establishment. Thus, the fact-finding by the court below that the defendant employed a juvenile non-indicted in the above business establishment from June 14, 2002 to July 6, 2002 is just and there is no error of law of misconception of facts due to a violation of the rules of evidence, as otherwise alleged in the grounds of appeal.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)