Where the owner of an entertainment drinking club that is a business establishment harmful to juveniles employs an employee, the content of the obligation to verify the age of the employee, and whether the same legal doctrine applies to the case where a person who helps another person to purchase sex as his/her business employs a child or juvenile for the purpose of a business (affirmative)

In light of the legislative purpose of the Juvenile Protection Act, the proprietor of a business establishment harmful to juveniles, such as entertainment taverns, shall not employ juveniles for the purpose of protecting juveniles. As such, in a case where the proprietor of an entertainment drinking house employs employees at the relevant entertainment business establishment, he/she shall verify the age of juveniles based on resident registration certificates or evidence with public probative value of age to the extent similar thereto. If it is doubtful that the photographs and objects on resident registration certificates presented by the subject are different, the number of juveniles are concealed in their status and age, and employment of entertainment business establishments is reduced in light of the vulnerable employment circumstances of the entertainment business, etc., it is reasonable to deem that the proprietor as a business owner is obliged to take additional age verification measures, such as making a detailed comparison of his/her resident registration certificate and objects on resident registration certificates, or making them open their addresses or resident registration numbers on resident registration certificates, and, if the age verification of the subject of employment is not easy due to the reason that he/she loses his/her identification cards, the act of employing children and juveniles for the purpose of protecting children and juveniles against sexual traffic should be acknowledged or applied to the Act.

Article 1, Article 29(1) and (3), Article 58 subparag. 4 of the Juvenile Protection Act, Article 1 and Article 15(1)2 of the Act on the Protection of Children and Juveniles against Sexual Abuse

Supreme Court Decision 2002Do2425 Decided June 28, 2002 (Gong2002Ha, 1896), Supreme Court Decision 2006Do477 Decided March 23, 2006, Supreme Court Decision 2013Do8385 Decided September 27, 2013 (Gong2013Ha, 2053)

Defendant

Defendant and Prosecutor

Attorneys Kim Jong-ok et al.

Seoul High Court Decision 2014No69 decided April 17, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

A. In light of the legislative purpose of the Juvenile Protection Act, since the proprietor of a business establishment harmful to juveniles, such as entertainment taverns, is highly seriously responsible for not employing juveniles for the protection of juveniles, the proprietor of the business establishment harmful to juveniles should verify the age of juveniles based on resident registration certificates or other evidence of public probative value sufficient to the extent that they are employed in the relevant business establishment. If there is doubt that the pictures and objects on resident registration certificates presented by the subject are different from those on real objects, it is reasonable to view that the employer of a business establishment harmful to juveniles as a business owner is obliged to take additional age verification measures, such as intentionally comparing the pictures and objects on resident registration certificates with those on resident registration certificates, or allowing them to open their addresses or resident registration numbers on resident registration certificates, and if it is difficult for them to verify the age of the subject of employment, such as failing to comply with the above age verification for the reason that he/she lost his/her identification cards, the act of employing juveniles on behalf of the subject of employment should also be deemed as 200 or 2500, 2008.

B. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

(1) The Defendant stated at an investigative agency that 000, 000, 000 employed by the employee of the business of arranging sexual traffic as an employee of the business of arranging sexual traffic, was not aware of the fact that he was a juvenile, and that 21 years of age was introduced from them, and that 00, 00, 00, 00, 00, and 100, 200 were viewed as 20 years of age when the job offer advertisement was first viewed as 0 years of age when the job offer advertisement was found. Although 00, 00, 00, which confirmed the identification card of 00, the Defendant confirmed the identification card, but 20 years of age when he was asked whether 00,000 were the same as that of the real, 00s of the identification card, and then he did not confirm that 0,000, 300,000 in person. In addition, the Defendant made a statement to be forgotten that the Defendant did not have a personal identity card.

Furthermore, the Defendant stated that there was little rumor from 000, ○, and ○○, that he was prepared to enter a university.

(2) The highest ○○ stated at an investigative agency that there was no statement that the Defendant shows his identification card, and the first instance court also asked the Defendant to 21 life by asking whether or not the Defendant did not confirm his identification card.

(3) At an investigation agency and a court of first instance, 00 also stated that there was no string the phrase "abscam" indicating that the first defendant was present at the time when the defendant was present, and that the second person was asked to present an identification card, but there was no string that he was asked to present an identification card, and that he was asked to present an identification card later. In the court of first instance, the court stated that the defendant was preparing to enter the university, and that he was not present an identification card from others to show the defendant, but did not actually show that he was the defendant.

C. Examining the above facts in light of the legal principles as seen earlier, in order to engage in the act of arranging commercial sex acts by using 000 and ○○○○, the Defendant was obligated to take additional age verification measures, such as failure to present or present his/her identification card with public probative value on the age, such as resident registration certificate, etc., if there is doubt that prior to the employment, the pictures and objects of his/her identification card are different from that of his/her resident registration certificate. Nevertheless, the Defendant did not confirm his/her maximum ○○○’s identification card with his/her adult or other words that he/she did not have any identification card, and even according to the Defendant’s statement that confirmed his/her identification card in the case of 00○, the Defendant did not take additional measures except for confirmation after confirming the age of his/her child and juvenile. Thus, it is difficult to view the Defendant as taking necessary measures for the confirmation of the age of his/her child and juvenile.

On the other hand, there is sufficient room to view that the defendant had an intention at least to do so on the fact that he/she has employed a child or juvenile white0, the maximum ○○, and the act of arranging to purchase his/her sex.

D. Nevertheless, the lower court erred by misapprehending the legal doctrine on the part of the Defendant, on the ground that there was no evidence to deem that the Defendant introduced the Defendant as 21 years of age, or that the Defendant transferred the Defendant’s age from the previous employer, even though the Defendant did not clearly grasp the actual age of 00 and ○○, the lower court did not err by misapprehending the legal doctrine on the part of the Defendant, i.e., whether it was proven that 000 and ○○ was aware of being a child or juvenile or that the Defendant knew of being a child or juvenile, or attempted sexual traffic even for a child or juvenile.

Therefore, such determination by the court below is erroneous in the misapprehension of legal principles as to the duty to verify the age for children and juveniles who are employees of a person who acts as a broker of buying sex, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. Scope of reversal

Of the lower judgment, the part of the lower judgment on the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse is reversed as seen earlier, and the remaining part of the lower judgment convicting is within the scope of the same facts charged as the above reversed part or in relation to concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the lower court’s judgment should be reversed in its entirety without determining the Defendant’s grounds of appeal.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)