In a case where a civil petition was filed on a national newspaper and Internet website that “a man-dice show of obscene breath of male dance in a bat club,” and a police officer was indicted on charges of violating the Act on the Regulation of Amusement Businesses Affecting Public Morals with the content that the operator of the bat club, Defendant A, Defendant B, and Defendant C et al. were engaged in obscenity business in collusion, the case holding that the judgment of the court of first instance which found the Defendants guilty, erred by misapprehending the legal principles or misapprehending the legal principles.

When a civil petition was filed on a national newspaper and Internet website that “a man’s dance is obscene balcons in a bale club,” it is a case prosecuted for violation of the Act on the Regulation of Amusement Businesses Affecting Public Morals with the content that police officers conspired with Defendant A, the head of entertainment, and the employees of the bale club to engage in obscenity business in collusion.”

The case holding that, although it is difficult for police officers to view such pictures as unlawful collection evidence solely on the ground that police officers conducted compulsory investigation by pretending to use them to use them as evidence collected by the Defendants and their defense counsel in violation of due process under the Constitution and the Criminal Procedure Act, even if they did not use them as evidence for the use of evidence in violation of due process, and Article 9 of the Act on the Regulation of Amusement Businesses Affecting Public Morals is applicable to the cases where police officers enter public morals places of business for administrative investigation, which collects data necessary for administrative disposition as administrative investigators, and thus, they do not produce identification of their authority under Article 9 of the same Act. However, it is difficult to view that such pictures were made as unlawful collection evidence solely on the ground that police officers conducted compulsory investigation by pretending to use them as visitors to their age clubs without presenting identification of their authority, and thus, there was no fact that police officers issued a prior or ex post warrant. However, even if the CD and the site photo taken by them as above were recorded in the process, it cannot be seen that the remaining evidence and evidence obtained by the police officers and defense counsel were insufficient to use of evidence and evidence.

Article 30 of the Criminal Act, Articles 3 subparag. 2, 6, 9, and 10(2) of the Act on the Regulation of Amusement Businesses Affecting Public Morals, Article 11 of the Framework Act on Administrative Investigations, Article 18 of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc., Article 307, 308-2, and 325 of the Criminal Procedure Act

Defendant 1 and two others

Defendants

Gohoho et al. and one other

Attorney Go Jong-hee

Jeju District Court Decision 2016Gohap819 decided January 25, 2017

The judgment of the court below is reversed.

Defendants are innocent.

1. Summary of grounds for appeal;

The police officers, who pretended to be a guest at the age club at the time of the instant case, and the evidence obtained based on the images and the evidence acquired by Defendant 1, as all illegally collected, are inadmissible as evidence. Although Defendant 1’s performance at the stage of the instant age club does not constitute obscenity, the lower court erred by misapprehending facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2. Determination

1) The circumstances and the nature of the investigation

According to the records of this case, when a civil petition was filed on a citizen newspaper and Internet site that "the e-mail of man dances continue to show obscene physical shocks at this case's e-mail," the police officers belonging to the Jeju Western Police Station, including Nonindicted 1, et al. enter the e-mail club as a customer at the time of this case, and use the e-mail small camera, thereby photographing Defendant 1's performance, and then, it can be acknowledged that the investigation of the facts charged by the Defendants was conducted on the basis of the photograph taken.

The police officers’ act of gathering evidence to be used in criminal proceedings related to the instant facts charged by the Defendants as an investigative agency, which entails restrictions on the Defendants’ freedom of choice and performance of their occupation without their consent or consent.

2) Relationship to Article 9 of the Act on the Regulation of Amusement Businesses Affecting Public Morals

Article 9 of the Act on the Regulation of Amusement Businesses Affecting Public Morals provides that the chief of a police station may, if particularly necessary, have a national police officer enter the public morals business place to inspect whether the person operating the amusement business affecting the public morals complies with any of the matters to be observed, and accordingly have a national police officer entering the public morals business place to produce a certificate indicating his authority to the persons concerned

However, in full view of the following circumstances, Article 9 of the Act on the Regulation of Amusement Businesses Affecting Public Morals does not apply to the entry of a police officer into a customs office for compulsory investigation as an investigation agency, but also to the entry of a customs office to conduct an administrative investigation collecting data necessary for administrative disposition, etc. as a police administrative investigator.

① Article 9 of the Act on the Regulation of Amusement Businesses Affecting Public Morals has almost the same provisions as Article 9 of the Act on the Regulation of Amusement Businesses Affecting Public Morals, as well as the Framework Act on Administrative Investigations and the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc.

(2) Article 6 of the Act on the Regulation of Amusement Businesses Affecting Public Morals shall require the chief of a police station to inform the permission-granting agency, etc. of any violation of the matters to be observed by the amusement business operator, etc., and require the permission-granting agency notified of such violation to take punitive administrative dispositions according to

③ In relation to a compulsory investigation by an investigative agency, a warrant shall be issued in advance and executed after being presented. exceptionally, if a compulsory investigation is conducted without a warrant in advance at the request of the necessity of preservation of evidence and urgency, separate procedural provisions that require an immediate issuance of a warrant are provided for in the Constitution and the Criminal Procedure Act.

Therefore, it is difficult to view such pictures as illegally collected evidence solely on the ground that the police officers belonging to the Jeju Western Police Station, including Nonindicted 1, did not produce a certificate indicating their authority at the time of the instant case, and entered the club as a customer, and made a forced investigation to photograph Defendant 1’s performance.

3) Relationship with warrant requirement

A) Whether to recognize the admissibility of CDs and on-site photographs

As seen earlier, the police officers belonging to the Jeju Western Police Station, including Nonindicted Party 1, pretended to be customers and taken Defendant 1’s performance as seen above constitutes compulsory investigation. According to the records of this case, it can be acknowledged that police officers did not have obtained a prior or ex post facto warrant in the process. As such, on-site photographs involving the recording of the recording of the recording of the recording of the recording of the CD and its images are all collected in violation of due process under the Constitution and the Criminal Procedure Act, and even if the Defendants and their defense counsel consented to the use of evidence, they cannot be used as evidence of guilt.

B) Whether the admissibility of the part concerning Defendant 1’s specific performance in the police interrogation protocol against the Defendants, the police protocol against Defendant 2, and the protocol of witness examination against Nonindicted Party 1 (part of the third protocol of trial) is recognized among the witness’s statement in the protocol of witness examination against Nonindicted Party 1, and the part concerning Defendant 1’s specific performance in the protocol of trial against Defendant 1, Defendant 2, and Defendant 3

Comprehensively taking account of the following circumstances acknowledged by the records of the instant case, each of the aforementioned evidence is a secondary evidence obtained based on CDs and field photographs constituting illegally collected evidence, and cannot be deemed as having been dissolved or cut off with the causal link with CDs and field photographs, a primary evidence. As such, as in the CDs and field photographs, even if the Defendants and their defense counsel consented to the use of evidence, it cannot be used as evidence of guilt.

① At the time of the police investigation with respect to the Defendants, Defendant 1’s specific performance was investigated in the form of questioning the Defendants on the basis of CDs containing the above-mentioned images and the on-site photographs capturing the images.

② All of the statements made by Defendants 1, 1, 2, and 3 on the specific performance of the witness’s testimony in each legal testimony is merely a short answer to each question of the questioners based on CDs and images recorded in the court at the time when one year has elapsed since the witness was present at the court of a trial and the video recorded therein at the time when one year has passed since the witness’s testimony was in this case.

C) Whether to recognize the admissibility of the parts of Defendant 1’s written opinion, criminal place, investigation report (if any), investigation result report, and notification of business violating the Act on the Regulation of Amusement Businesses Affecting Public Morals, on the contents of the specific performance

All of the above evidence are derived from CDs and field photographs, and the causal relationship cannot be deemed as dilution or severed. Thus, even if the Defendants and their defense counsel consented to the use of evidence, they cannot be used as evidence of guilt.

4) Whether the instant facts charged are proven based on the remaining evidence

For the above reasons, it is insufficient to recognize that Defendant 1 performed the same performance as stated in the facts charged at the time of the instant case only with the remaining evidence except for each evidence that cannot be used as evidence of guilt, and there is no other evidence to acknowledge it.

In the end, the facts charged against the Defendants constitute a case where there is no proof of a crime without examining the remaining points, and thus, the lower court should have pronounced innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act. In so doing, the lower court erred by misapprehending the legal doctrine or rendered a judgment of conviction against the Defendants, and thus, the Defendants’ assertion pointing

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

The summary of the facts charged in this case is the same as the facts charged at the time of the original trial, and the facts charged in this case constitutes a case where there is no proof of crime as stated in the reasons for reversal, and thus, the defendant is acquitted under the latter part of Article 325

Judges Lee Jin-soo (Presiding Judge)

(1) Article 11 (1) (1) In the event that an investigator enters a household, office, workplace, etc. and conducts a field investigation, the head of the administrative agency shall send to the person subject to investigation a letter of access to the site stating the following matters or a document that requires him/her to be presented in the course of the field investigation under the Acts and subordinate statutes, etc. (2) No on-site investigation under paragraph (1) shall be conducted before sunrise or after sunset: Provided, That this shall not apply in any of the following cases:

(2) Article 18 (Entry, Inspection) (1) The Commissioner General of the National Police Agency or the Commissioner of the Local Police Agency may, where particularly necessary, require a business operator and manufacturer or seller of speculative instruments (hereinafter referred to as "business operator, etc.") to make a necessary report, or require a relevant public official to enter the place of business to inspect the compliance status of the matters to be observed by the business operator, etc., business facilities, speculative instruments, relevant documents, account books, etc. In such cases, the inspection may be conducted in respect of speculative business utilizing the information and communications network, such as the Internet.