[1] The meaning of "employment" under Article 24 (1) and Article 50 subparagraph 2 of the Juvenile Protection Act, the establishment of a crime of violating the prohibition of employment by juveniles, and the standard for determining the criminal intent

[2] The case holding that the judgment of the court below which acquitted the defendant as to the facts charged against the violation of the Juvenile Protection Act that the defendant employed the defendant as the juvenile Gap (the age of 17) in his own entertainment tavern operated by him, was erroneous in the misapprehension of legal principles as to the interpretation and application of the "employment" under Article 24 of the same Act

[1] Article 24(1) of the Juvenile Protection Act provides that “the owner of a business establishment harmful to juveniles shall not employ juveniles.” Article 50 Subparag. 2 of the same Act provides that “The employer of a business establishment harmful to juveniles shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding twenty million won, in violation of Article 24(1).” In this case, the term “employment” is a contract under which one of the parties agrees to provide services to the other party and the other party agrees to pay remuneration therefor (Article 655 of the Civil Act). Likewise, as other typical contracts under the Civil Act, it is established only with the agreement of the parties, and may not require any special method, and may also be established by implied agreement. On the other hand, a violation of the duty to prohibit the employment of juveniles has the substance of continuous crime in that the continuous demand for the provision of labor, and as such, the crime of violation of the duty continues to exist unless the employment of juveniles is suspended, the establishment of such crime and the period of continuous employment shall be determined by considering the overall period of the juvenile.

[2] The case holding that the judgment below which acquitted the defendant of the violation of the Juvenile Protection Act that the defendant employed the juvenile as the juvenile Gap (the 17-year-old employee) in the entertainment tavern operated by the business owner of a business establishment harmful to juveniles was erroneous in the misapprehension of legal principles as to the interpretation and application of the "employment" under Article 24 of the Juvenile Protection Act, on the ground that the defendant was not directly employed by the business owner and the manager of the above main office was deemed to have employed Gap and the above main office was merely employed by Gap

[1] Articles 24(1) and 50 subparag. 2 of the Juvenile Protection Act, Article 655 of the Civil Act / [2] Articles 24(1), 50 subparag. 2, and 54 of the Juvenile Protection Act

[1] Supreme Court Decision 2005Do3801 Decided July 29, 2005 (Gong2005Ha, 1475), Supreme Court en banc Decision 2005Do6455 Decided November 25, 2005, Constitutional Court en banc Decision 2008Hun-Ga10 Decided July 30, 2009 (Hun-Ga154, 1395)

Defendant

Prosecutor

Suwon District Court Decision 2010No361 decided July 8, 2010

The judgment of the court below is reversed, and the case is remanded to the District Court Panel Division.

We examine the grounds of appeal.

According to the reasoning of the judgment below, as to the facts charged in this case that the defendant employed the non-indicted 1 (the non-indicted 17 years old) as his employee at the ○○○○ entertainment drinking house located in the Gyeonggi-Gun, which is a business establishment harmful to juveniles from June 1, 2007 to the 14th of the same month, although the business owner of a business establishment harmful to juveniles was not employed, the court below found the defendant not guilty on the grounds that the manager of the above entertainment drinking club was paid 50,00 won every month on June 1, 2007 and employed the non-indicted 1 as his employee, and that the non-indicted 1 was employed as his employee from around the above entertainment drinking club, and the defendant was also employed with the non-indicted 1 who worked for the above entertainment drinking club, but the above facts alone are insufficient to recognize that the defendant directly employed the non-indicted 1. Rather, the defendant was found not guilty on the grounds that the non-indicted 21 was employed by the above non-indicted 21.

Article 24(1) of the Juvenile Protection Act provides that "the owner of a business establishment harmful to juveniles shall not employ juveniles," and Article 50 Subparag. 2 of the same Act provides that "the owner of a business establishment harmful to juveniles shall not employ juveniles," and Article 24(1) of the same Act provides that "the owner of a business establishment harmful to juveniles shall be punished by imprisonment for not more than three years or by a fine not exceeding twenty million won."

At this time, the term “employment” is a contract under which one of the parties agrees to provide services to the other party and the other party agrees to pay the remuneration therefor (Article 655 of the Civil Act). Likewise, as other typical contracts under the Civil Act, it is established only by the agreement of the parties, and it does not require any special method, and may also be established by the agreement of the implied will.

On the other hand, a violation of the duty of prohibition against employment by juveniles generally requires the continuous state of providing labor, and as long as it does not discontinue employment for juveniles, the crime of violation of the duty of prohibition against employment by juveniles continues to be committed. Thus, the establishment of the crime of violation and the intent of the crime should be determined by considering the whole period during which the employment by juveniles is continued.

In light of the above legal principles, it is difficult to accept the judgment of the court below that in this case, the manager Nonindicted 2 only employed Nonindicted 1, a juvenile, in the above entertainment tavern.

As acknowledged by the lower court, even if Nonindicted 2 visited Nonindicted 1 and notified Nonindicted 2 of how much remuneration was, and in fact, decided whether to employ Nonindicted 1, as the employer, the right to finally determine whether to employ Nonindicted 2 as the said entertainment tavern. As such, in principle, the party to the instant employment contract ought to be deemed as the Defendant and Nonindicted 1, who is the owner of the entertainment tavern business.

In addition, according to the records, for the two weeks from June 1, 2007 to the 14th day of the same month, Non-Indicted 1 entered into an employment contract with the defendant in accordance with the implied agreement between the defendant and Non-Indicted 1, and the defendant appeared to have been employed directly by Non-Indicted 1, a juvenile for a considerable period of time. As such, the juvenile employment continued not temporarily but for a considerable period of time, and the defendant knew that Non-Indicted 1 had been employed for a considerable period of time. In light of the fact that Non-Indicted 1 had been urged to perform his duties, such as the defendant and Non-Indicted 1 going through a short period of time, it is reasonable to deem that the employment contract was established through an implied agreement between the defendant and Non-Indicted 1, and thereby the defendant directly employed Non-Indicted 1, a juvenile.

In addition, even though Non-Indicted 1 was demanded by Non-Indicted 2 to present his/her resident registration certificate at the time of interview, he/she did not withhold or refuse the employment of the Defendant (the page 50 of the trial record) even though he/she belonged to his/her age without presenting his/her resident registration certificate from Non-Indicted 2, it is reasonable to view that Non-Indicted 1 had dolusent intention as to the employment of Non-Indicted 1, even though Non-Indicted 1 worked in the above entertainment drinking house for two weeks.

Nevertheless, the court below found the defendant not guilty of the facts charged in this case on the grounds that the defendant could not be deemed to have directly employed the non-indicted 1. Thus, the court below erred by misapprehending the legal principles on the interpretation and application of "employment" in Article 24 of the Juvenile Protection Act, which affected the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)