[1] In a case where a person engaged in another business and allowed a viewing of video products without compensation as incidental to the customer’s choice, whether it constitutes “business of providing video viewing,” which is regulated by the former Promotion of Motion Pictures and Video Products Act (negative)

[2] The case holding that it does not constitute a "video viewing service business" under Article 58 (1) of the former Promotion of the Motion Pictures and Video Products Act, in the case where a proprietor of a business operating a real estate sublease business, a rest-off business, a lodging business, etc., lends a VD to customers without compensation, and let them view it

[1] The term "video service providing business," which requires registration with the competent authority pursuant to Article 58 (1) of the former Promotion of the Motion Pictures and Video Products Act (amended by Act No. 9657 of May 8, 2009), refers to providing video products for public viewing continuously and repeatedly for profit-making purposes as prescribed by each item of Article 2 subparagraph 16 of the same Act. In a case where a video service is offered without compensation as incidental to the customer's choice while running the main business of different contents, it shall not be deemed that the business of providing video service is running a video service providing business under Article 58 (1) of the same Act.

[2] In a case where a person, who has completed business registration due to the sublease of real estate, the rest of business, the lodging business, etc., in the competent tax office, lends DoVD without compensation to customers while running his business, the case holding that the act of offering DoV does not constitute a "video viewing business" subject to the regulation of Article 58 (1) of the former Promotion of Motion Pictures and Video Products Act

[1] Articles 2 subparag. 16 and 58(1) of the former Promotion of the Motion Pictures and Video Products Act (amended by Act No. 9657 of May 8, 2009) / [2] Articles 2 subparag. 16, 58(1), and 95 subparag. 8 (see current Article 95 subparag. 9) of the former Promotion of the Motion Pictures and Video Products Act (amended by Act No. 9657 of May 8, 2009)

Defendant

Prosecutor

Seoul Western District Court Decision 2009No157 decided May 22, 2009

The appeal is dismissed.

The grounds of appeal are examined.

Articles 95 subparag. 8 and 58(1) of the former Promotion of the Motion Pictures and Video Products Act (amended by Act No. 9657, May 8, 2009; hereinafter the “Act”) provide that a person who conducts a video service providing business without registering his/her establishment with the competent authority. Article 2 subparag. 16 of the Act, and Article 4 of the Enforcement Decree of the Act provides that the term “video service providing business” means a person who provides a video service with video viewing equipment, which falls under any of the following subparagraphs: a video service establishment: a video watching room (a number of partitioned viewing rooms and video viewing equipment installed with a number of partitioned viewing rooms and equipment for public viewing), a video watching theater (a business offering video products exclusively to the public for their viewing), other video service providing business (a hotel establishment under Article 3(1) of the Tourism Promotion Act, and an off-road parking lot under Article 2 subparag. 1(b) of the Parking Lot Act).

Considering the purport of the principle of no punishment without law that requires strict interpretation and application of the Criminal Act and regulations, a video service providing business that requires registration with a competent authority pursuant to Article 58(1) of the Act refers to providing video products for public viewing as prescribed by each item of subparagraph 16 of Article 2 of the Act for profit-making purposes in accordance with the provisions of Article 2(1) of the Act, and where a video service providing business continues to provide video products for public viewing at the option of customers and provides video products for public viewing without compensation as incidental to the other contents of the business, it cannot be seen as providing video products for public viewing business as provided by Article 58(1) of the Act.

The summary of the facts charged of this case is as follows: (a) from March 10, 2008 to July 2, 2008, the Defendant was engaged in a video viewing business without registration with the competent authorities by having one computer, television 1, and DV display player, which is a video viewing equipment, and (b) having 4,000 to 6,000 to 6,000 to 300 to 6,000 to 1 hour rental fees for each room; and (c) providing a video viewing business without registering with the competent authorities.

However, the following circumstances acknowledged by the evidence duly adopted by the lower court, namely, ① the Defendant has been engaged in the business of operating new types meeting the diverse needs of customers after having registered business with the competent tax office as well as computers and computer books, toilets, shower facilities, etc., which are video viewing equipment, and completing the business of leasing real estate to the competent tax office, resting business, and other lodging business; ② the Defendant has received the fees of KRW 300,00 through KRW 450,000 per month from the customers wishing to use accommodation; ③ the Defendant has collected the charges of KRW 4,00 through KRW 8,00 for each time period of 10,000 from the main business office to the customers wish to use accommodation; ③ The Defendant’s use of some of the DV facilities installed adjacent to the instant business office, which could not be seen as having been used for the instant entertainment business for the purpose of viewing the instant entertainment business without consideration of the legal principles as to the use of the DV, i.e., the Defendant’s use of the instant entertainment business office.

In the same purport, the decision of the court below which acquitted the charged facts of this case is just, and there is no error in the misapprehension of legal principles as to the video service providing industry or in the rules of evidence.

The judgment of the Supreme Court cited in the ground of appeal (2008Do5956) held that the defendant can be deemed to run the video viewing business without registration in light of the following: the defendant's operation of the video viewing room and his operation of the video viewing business twice as a result of the violation of facility standards, and the defendant's operation of the video viewing business was controlled twice, and the previous DVD viewing equipment or DVD was used as it is and the equipment was added to the short-term electric circuit business for the purpose of avoiding this violation; the "loss of DVD film" inside the building where the place of business is located was installed as it was the previous signboard; the important business of the employee of the office was directed by the customer's room; and the employee of the office was recycling the video products desired by the customer; therefore, the above decision of the Supreme Court is different from this case; therefore, it cannot be said that the judgment of the court below contrary to the above decision

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

Justices Cha Han-sung (Presiding Justice)