The case holding that it cannot be evaluated that the social factual relations, which form the basis of the facts charged, cannot be evaluated as identical to the facts charged that the crime of violation of the Medical Service Act, which is established by the summary order, is "unqualified persons act" and "act of arranging sexual traffic."

Articles 298(1) and 326 subparag. 1 of the Criminal Procedure Act

Defendant

Defendant

Attorney Park Han-young

Seoul Southern District Court Decision 2008No405 Decided September 24, 2008

The appeal is dismissed.

The grounds of appeal are examined.

According to Article 326 subparagraph 1 of the Criminal Procedure Act, "when a final judgment has already been rendered," a judgment of acquittal should be rendered for the facts charged. The identity of the facts charged or the facts charged in this context is maintained as it is if the social facts, which form the basis thereof, are the same in the basic point of view. However, in determining the identity of the basic facts, the basic facts of the defendant's act and the social factual relations are based in mind, and such normative elements should also be taken into account (see Supreme Court Decisions 2002Do2642, Jul. 11, 2003; 2004Do6390, Jan. 13, 2005).

After compiling the adopted evidence, the court below acknowledged the facts as stated in its decision, and judged that the "unqualified persons act" of the crime of violation of the Medical Service Act, for which a summary order has been finalized, does not include any act of causing sexual entertainment because it takes the body, takes the body for the purpose of promotion of health, or causes sexual entertainment. However, the "similar sexual intercourse act" of the facts charged in this case means that a male guest's sexual organ is damaged in order to cause sexual entertainment, and the contents and act of the facts charged, such as the means and method, are separate, and the form of the act and damage legal interest are different, and there is a wide difference in the nature of the crime, so it cannot be evaluated that the social factual relations, which form the basis thereof, are the same. In light of the aforementioned legal principles and records, the above recognition and judgment of the court below is just, and there is no error of law in the misapprehension of legal principles as to acquittal, etc.

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

Justices Kim Nung-hwan (Presiding Justice)