Defendant

Defendant

Park Young-young (criminals) and half-wheeled (public trials)

Law Firm Professor, Attorney Kim Han-han

Seoul Central District Court Decision 2016Gohap1069 Decided October 12, 2016

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of legal principles and mistake of facts

(1) The Defendant merely provides the members of his physical fitness center with bathing facilities without compensation after physical exercise. In light of the purpose of legislation of the Public Health Control Act, the nature of the “egrative” provision under Article 2(2) of the Enforcement Decree of the Public Health Control Act that excludes some facilities from the public bath business, and the size and equipment of the bathing facilities of this case, it cannot be deemed that the Defendant engaged in the “public bath business with the Defendant’s act, such as the facts charged,” as stated in the facts charged.

(2) The Defendant had no intention to engage in the public bath business subject to the Public Health Control Act.

B. Unreasonable sentencing

Punishment (one million won of fine) declared by the court below is too unreasonable.

2. Determination

A. Judgment on the misapprehension of legal principles and mistake of facts

(1) Determination as to the assertion that the “public bath business” was not conducted

In light of the following circumstances revealed through the evidence duly adopted and examined by the court below, the defendant is sufficiently recognized as running the "public bath business" under Article 2 (1) 3 of the Public Health Control Act. Accordingly, this part of the defendant's assertion is not acceptable.

① Even if the members of the physical training center allowed the use of bathing facilities only to those of the members of the physical training center, so long as the membership and withdrawal as members of the physical training center are free, users of bathing facilities are not many and unspecified persons. Moreover, it should be deemed that the Defendant’s use of bathing facilities as a matter of course is included in the usage fees received from the members of the physical training center.

(2) The purpose of the Public Health Control Act is to contribute to the improvement of national health by prescribing the matters concerning the sanitary control, etc. of business used by the public. In order to achieve such objective, the Public Health Control Act provides for the duty to report on public health business operators, the obligation to manage hygiene, and the administrative dispositions, such as improvement order, suspension of business, closure of business, etc. of public health business operators who have violated such obligation, and criminal punishment, it is not desirable to expand without permission the scope of exceptional facilities not subject to the Public Health Control Act, and accordingly, Article 2 (2) of the Enforcement Decree of the Public Health Control Act, which provides for the

③ The bathing facilities installed by the Defendant in the physical training center had three bath rooms and two sprinks in the area of 150 square meters for male use, and in the case of female use, two bath rooms and two sprinks in the area of 70 square meters in the area of 70 square meters and two sprinks in the area of 70 square meters. In light of such size and facilities, it cannot be deemed that the bathing facilities were made only for the purpose of making a cleaning after the physical training, and the possibility of causing harm to the national health and sanitation due to the defective installation and management of the bathing facilities is considerably high.

(2) Determination as to the assertion denying “Objection”

As above, insofar as the Defendant installed the instant bathing facility and allowed its members to use it, it is evident that there was intention to commit the instant crime of violation of the Public Health Control Act.

Furthermore, even if the defendant's assertion was made without the awareness of illegality, Article 16 of the Criminal Act provides that "the act of misunderstanding that one's act constitutes a crime by law shall not be punishable only when there is a justifiable ground for misunderstanding." It is generally accepted that the act of misunderstanding that one's act does not constitute a crime by law, but it does not constitute a crime by misunderstanding that one's act is permitted by law in his own special circumstances. It is not punishable if there is a justifiable reason for misunderstanding. Whether there exists a justifiable reason should be determined depending on whether the defendant's act was not aware of illegality as a result of misunderstanding that one's own act could have been aware of illegality if he had done so with his intellectual ability and failed to make a serious effort to avoid it (see Supreme Court Decision 2008Do5526, Oct. 23, 2008.). Even if the defendant did not know that the defendant's act was an act of misunderstanding, he or she did not have any justifiable reason for misunderstanding other than misunderstanding or questioning.

Therefore, we cannot accept this part of the defendant's assertion.

B. Determination on the assertion of unfair sentencing

In full view of all the facts that there is no change in the conditions of sentencing compared to the original court’s decision, the lower court’s sentencing is too excessive and it is not recognized that the Defendant exceeded the reasonable scope of discretion, in light of the motive, means, and consequence leading up to the instant crime, the circumstances after the commission of the crime, the age, character and conduct, environment, etc. of the Defendant, as well as all the circumstances leading to the sentencing

3. Conclusion

Therefore, the defendant'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 Park Jae-sik (Presiding Judge) Kim Jong-hun

Note 1) According to the public official’s statement (Evidence No. 4 pages), the “Dormant Room” seems to exist.