Defendant

Prosecutor

Madrified

Suwon District Court Decision 2006 High Court Decision 653, 2007 High Court Decision 168 (Consolidated) Decided November 9, 2007

The prosecutor's appeal is dismissed.

1. Summary of the grounds for appeal (misunderstanding of legal principles or factual errors);

In full view of the fact that Nonindicted 1, a juvenile, entered a harmful business establishment and ordered alcohol and alcohol and paid the price by card, and that Nonindicted 1 did not confirm whether the Defendant was a juvenile until Nonindicted 1 entered the room with an alcoholic beverage and alcohol, even though Nonindicted 1 did not actually drink the alcoholic beverage provided by the Defendant, it was in a situation where the Defendant could drink sufficient alcoholic beverage. However, the Defendant’s above act was in violation of the Juvenile Protection Act which regulates a juvenile’s access to a harmful business establishment for the purpose of protecting juveniles from various harmful environments, but it cannot be deemed that Nonindicted 1 was in a state where he could drink alcohol, and thus, the lower court acquitted him of the violation of the Juvenile Protection Act due to the sale of alcoholic beverage, among the facts charged in the instant case, on the ground that the lower court erred by misapprehending the facts or misapprehending the legal doctrine.

2. Determination

A. Summary of the facts charged

Around 00:50 on December 17, 2006, the Defendant sold 110,000 won of the drugs harmful to juveniles to juveniles, without verifying the age to Nonindicted 1 (Nam, 17 years old), at “the (name omitted),” which was located in the Ansan City (hereinafter omitted) around 00:50 on February 17, 2006, the Defendant sold 110,000 won of the drugs harmful to juveniles.

B. The judgment of the court below

Although calculating the drinking value, the Defendant attempted to verify Nonindicted Party 1’s identification card before providing two weeks of disease, and it cannot be deemed that Nonindicted Party 1 was arrested on the charge of larceny, etc., and Nonindicted Party 1 was in a situation where two weeks of injury. Therefore, it is difficult to readily conclude that the Defendant sold the two weeks of injury to Nonindicted Party 1 solely on these facts, and there is no other evidence to acknowledge it, and thus, this part of the facts charged constitutes a case where there is no evidence to prove a crime, and thus, the Defendant is acquitted.

C. Judgment of the court below

According to Article 2 subparag. 4 of the Juvenile Protection Act and Article 26(1) of the same Act, no person shall sell, lend, or distribute for juveniles alcoholic beverages that are drugs harmful to juveniles. Article 51 subparag. 8 of the same Act provides that a person who sells the alcoholic beverages pursuant to the Liquor Tax Act shall be punished against juveniles in violation of the above provision. The above provision aims to protect and relieve juveniles from various social environments harmful to juveniles and further to grow up into healthy personality by regulating the distribution of drugs harmful to juveniles. In full view of Article 51 subparag. 7 of the same Act, the crime of violating the Juvenile Protection Act by selling alcoholic beverages is insufficient to create a situation where juveniles are in danger of drinking, and actually, it is reasonable to interpret that the crime of violating the Juvenile Protection Act is established in a situation where juveniles are able to drink or drink alcoholic beverages by providing alcoholic beverages to juveniles.

The following facts are acknowledged according to the evidence duly adopted and examined by the court below.

(1) From December 5, 2005, the Defendant operated an entertainment tavern under the trade name “(name omitted) club” in Ansan-si (hereinafter omitted).

(2) At around 00:30 on February 17, 2006, Non-Indicted 1 was a minor, and around 00:30 on February 17, 2006, Non-Indicted 1 entered the above (name omitted), and ordered Non-Indicted 2 to provide alcohol and alcohol in the room of the place. The above age club was demanded to the mixed customer in advance, and accordingly, requested Non-Indicted 2 to pay the drinking value in advance, but the card settlement was not approved.

(3) When Nonindicted Party 1 went out of studio, Nonindicted Party 1 cited a stolen credit card and caused Nonindicted Party 2 to settle the drinking value, etc., and demanded that all Russia in the above age club be delivered.

(4) Nonindicted 2, who won the above action of Nonindicted 1, told the Defendant of this circumstance, and the Defendant, along with Nonindicted 2, demanded Nonindicted 1 to present his identification card to Nonindicted 1, who carried the alcohol and the share of the share of the share of the share of the share of the share of the share of the share of the share of Nonindicted 1.

(5) When Nonindicted 1 refused the Defendant’s request for presentation of his identification card, Nonindicted 1 was arrested by the police officers who arrived at the same time.

In full view of the above legal principles as seen earlier, since the defendant, who caused the non-indicted 1's behavior, was in the vicinity of Non-indicted 1 at the time of demanding his identification card to the non-indicted 1, but the non-indicted 1 was not in a situation where the non-indicted 1 could drink his drinking because he did not actually provide his identification card to him, the defendant cannot be deemed to have sold alcoholic beverages to non-indicted 1 who is a minor, and the non-indicted 1 paid the drinking value. This circumstance is an element to consider in determining whether the juvenile had sold alcoholic beverages. However, in this case, the payment of the drinking value is based on the settlement method that the non-indicted 1 would make the mixed customer pay the drinking value to the non-indicted 1 in the age club in which the defendant operated, and it cannot be deemed that the crime of violating the Juvenile Protection Act was established due to the circumstance that the non-indicted 1 actually paid the drinking value to the non-indicted 1 in advance, and there is no evidence that the defendant sold alcoholic beverages to the non-indicted 1.

Therefore, this conclusion is just, and it cannot be deemed that there was an error of law by misunderstanding the facts or by misunderstanding the legal principles, which affected the conclusion of the judgment, and therefore, it is without merit.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges in writing (Presiding Judge)