Defendant 1 is a person who works for the head of the business office in the “○○ entertainment drinking club” located in the Bupyeong-gu Seoul Special Metropolitan City, Bupyeong-gu, Chungcheongnam-do. Defendant 2 is a business owner of the said business establishment. Defendant 2 is a business owner of the said business establishment, even though a business owner or employee who operates a food service business establishment does not receive money and valuables in return for time required beyond the business establishment.

A. On January 30, 208, at around 22:25, Defendant 1 had Nonindicted 2, an employee of the said business place, engage in the business of using a life pocket book with Nonindicted 1, who was a guest, in the above business place, at around 4, 2008, at the above ○○ entertainment drinking house No. 4, and received the consideration (the presumption as KRW 200,000),

B. Defendant 2 neglected his duty of care and supervision to prevent Defendant 1, an employee, from committing an offense such as the foregoing 1.

2. Determination:

A. The gist of the Defendants’ lawsuit

(1) Although there is a fact that Nonindicted 2, an employee, was sent to the outside with Nonindicted 1, a customer, this is not only a fact that Defendant 1, the head of the business office, as an independent act of Nonindicted 2, had Nonindicted 2 go to the outside of the customer, but also there is no fact that money was paid in return.

(2) Among the evidence submitted by the prosecutor, “The first police statement of Nonindicted Party 1, Nonindicted Party 2 and Nonindicted Party 1, and Nonindicted Party 2,” among the evidence submitted by the prosecutor, is the evidence obtained in the course of an illegal investigation beyond the limit of a voluntary investigation, so the admissibility of evidence shall be denied

B. Judgment of evidence

(1) The investigation process of the instant case

According to the records, the following facts can be acknowledged.

(A) On January 30, 2008, the Nansan Police Station’s Living Safety Book obtained intelligence that sexual traffic is being conducted at the “○○○ entertainment tavern” and confirmed that Nonindicted 4 and one of the affiliated slopes were engaged in diving work in front of the said entertainment tavern from around 21:30 on January 30, 208 to 22:25 on the same day, Nonindicted 1 and Nonindicted 2 were found to have accrued from the entrance of the said entertainment tavern at around 22:24 on the same day, and that the said male and female entered △△△△△△△ located at a distance of 10 meters from the said main point.

(B) The fourth police officer, such as Nonindicted 3, in the course of the dispatch after receiving the above contact from Nonindicted 4, was asked to ask for cooperation from the business owner who was in the female seathouse, as to whether the above male and female entered several heading rooms, and the female head opened the door of the female heading in which Nonindicted 1 and 2 entered by using the preliminary heat.

(C) At the time, Nonindicted Party 1 and Nonindicted Party 2 were left off her clothes and were influence. The police officers notified that “the arrest of a flagrant offender through sexual traffic” and “the right to appoint a defense counsel” (However, the aforementioned Nonindicted 3 appeared as a witness in this court and stated that “the principal was notified at the time, and the right to refuse to make a statement was not notified”) and the above two were separated from each other and investigated the relationship between them and the situation of entering the court.

(D) Nonindicted 1 and Nonindicted 2 determined that the police officer’s questioning was “not having committed a sexual act,” and that Nonindicted 1 and Nonindicted 2 did not discover cremations or mixed Seas, etc., which could prove that they were sexual intercourses in the room and toilets, etc., at the time, they did not arrest the above two as a sexual traffic (the attempted sexual traffic cannot be punished as a sexual traffic unless there is a penal provision on the attempted sexual traffic) and demanded the police officer to voluntarily move along as a sexual traffic district (the attempted sexual traffic may be refused, but may be forced to proceed with the sexual traffic even if the refusal was refused). Nonindicted 3 separated Nonindicted 1 and Nonindicted 2 from Nonindicted 1 and Nonindicted 2 at the time of investigation, and decided that the crime was a so-called “the fact that the sexual traffic had yet come into existence,” and that the police officer forced to refuse the sexual traffic as a sexual traffic.

(E) Nonindicted Party 1 and Nonindicted Party 2 prepared a written self-statement as a documentary evidence and was investigated by a witness. Nonindicted Party 1 stated in the written self-statement that “I had been talked with each other by entering in a female house, such as Yang 1 disease, and paid the price of KRW 4,50,000,000,000, which was known to be included in the second cost, although the confirmation of the details was not possible,” and when being investigated by a witness, the witness stated that “I knew of sexual conduct, sexual conduct was known, 2 illness, 450,000,000 won, and 4,50,000,000 won, which was known to be included in the amount of money.”

On the other hand, Non-Indicted 2 consistently stated that “Seong-ju 2 disease was mawned in Woo-ju 2, and was in Woo-man with each other, not in Woo-man, but in Woo-man’s sexual conduct.”

(F) Afterwards, the Defendants’ 4.50,00 won include only two disease values (200,000 won per disease) and 50,000 won per woman employees’ table service charges, but did not include so-called secondary service charges, and denied suspicion. The police summoned Nonindicted Party 1 and investigated Nonindicted Party 1, but Nonindicted Party 1 stated that “The content of the self-written statement prepared in the wife is erroneous and that it is against the order of two soldiers.” (The statement was maintained up to this court up to this court).

(G) Accordingly, the police conducted a supplementary investigation as to whether the payment was received in addition to the drinking value and the table table service charge, but the additional evidence was not found, and the prosecutor filed the instant prosecution with the statement of Nonindicted Party 1’s self-written statement that the two owners were only one disease (the facts of the prosecution are presumed to be about KRW 20,000,000,000,000,000,000 won for each of the two weeks’ 4.5,00,000,000 won for each of the two weeks’ 4.5,000,000 won as calculated by Nonindicted Party 1.).

(2) Whether the evidence of each of the self-written statements prepared by Nonindicted 1 and 2 and the first written statement made by the police against Nonindicted 1 and 2 is admissible

The above evidence among the evidences submitted by the prosecutor, as seen earlier, is the evidence collected after the voluntary movement of Non-Indicted 1 and Non-Indicted 2 into the capital zone, and where the above voluntary movement is not legitimate, the admissibility of evidence can be at issue. Thus, it is first considered whether the above voluntary movement is legitimate or not.

The legality of voluntary accompanying of a suspect to an investigative agency, etc. in the form with the consent of the parties during the course of an investigation is recognized only where it is clearly proved by objective circumstances that the voluntary accompanying of a suspect was made only by the suspect, such as where the investigator recognizes that he/she may refuse accompanying the suspect prior to accompanying, and that he/she could leave the place of accompanying at any time, etc., was accompanied by the suspect's voluntary intention (see Supreme Court Decision 2005Do6810, Jul. 6, 2005, etc.).

As seen earlier, the police officers at the time of the instant case notified Nonindicted 1 and Nonindicted 2 that “it may refuse to conduct the same” prior to voluntary operation of Nonindicted 1 and Nonindicted 2, but on the other hand, the police officers at the time notified that “it may refuse to conduct the same,” in addition to the notification that “it may be forced even if they refuse to conduct the same,” the police officers were to have arrested Nonindicted 1 and Nonindicted 2 as an offender in the form of sexual traffic, or, due to lack of evidence, could have taken the place into the district without arresting an offender in the form of voluntary movement. In light of the fact that Nonindicted 1 and Nonindicted 2 did not appear to have been able to have rejected Nonindicted 2’s request by Nonindicted 1 and Nonindicted 2 to accompany the police officers at the time of their voluntary operation, it was difficult to say that the police officers were forced to refuse to conduct the same during the police officer’s voluntary use of sexual traffic, and that it could not be said that they did not have been forced to do so even if they were forced to do so.”

Therefore, each of the above evidence collected through an illegal voluntary behavior is inadmissible as evidence of collection of illegality.

[Security Nonindicted 3’s statement to the effect that Nonindicted 1 and Nonindicted 2 at the time were recognized as “the fact that the act of sex was still known, but the so-called secondary vehicle was discovered,” and thus, the arrest of the criminal in the act of sexual intercourse does not have any particular problem. However, it is unclear whether the requirements for arresting the criminal in the act of sexual intercourse were satisfied in the situation where there was insufficient evidence as to the act of sexual intercourse at the time (in particular, up to Nonindicted 1, a customer).

In addition, even if the person to be polled was found to have been guilty of a crime and the investigation was commenced, if the investigation agency examines the person to be polled in relation to the crime, the person to be polled should be notified of the right to refuse to make statements prior to the examination. According to the court statement of Nonindicted 3 in the slope, there is no prior notification of the right to refuse to make statements to Nonindicted 1 or Nonindicted 2 who appears to have actually been the suspect at the time, and there is no evidence that there was prior notification of the right to refuse to make statements prior to the preparation of the self-written statement or the investigation of the witness. Thus, each of the above evidence is inadmissible as illegally collected evidence in this regard (see Supreme Court Decision 92Do682 delivered on June 23, 1992).

(3) Whether some of Nonindicted 4, 3, and 5’s legal statements and investigation reports on Nonindicted 4 were admissible as evidence

Next, there are some of the statements in the court and the investigation reports on Nonindicted 4, 3, and 5, which correspond to the facts charged, but some of the statements in the investigation reports on Nonindicted 4, 3, and 5 and Nonindicted 4 were written. However, the statement was made by Nonindicted 1 and Nonindicted 2 to the effect that the contents were “the two-way vehicle” from Nonindicted 1 and Nonindicted 2, and it did not meet the requirements of Article 316(2) of the Criminal Procedure Act, and thus, it is not admissible as evidence since it did not meet the requirements of Article 316(2) of the Criminal Procedure Act.

C. Sub-committee

In addition, the evidence submitted by the prosecutor alone is insufficient to acknowledge the facts charged of the instant case (in particular, whether the Defendants received money and valuables in return for the so-called pocketet business in addition to the drinking value from Non-Party 1, the customer, and there is no other evidence to acknowledge it. Thus, even if there is suspicion of guilt against the Defendants, it is inevitable to determine it as

3. Conclusion

Therefore, the facts charged in this case constitute a case where the proof of a crime is insufficient, and thus, the defendant is acquitted pursuant to the latter part of Article 325

Judges Na Jin-jin