In a case where the defendant was prosecuted for violating Article 56 (2) of the Welfare of Older Persons Act by operating a medical care and communal living home for older persons, which falls under medical welfare facilities for older persons without filing a report, the case applying Article 57 subparagraph 1 of the same Act, which is not Article 56 (2) of the same Act

In a case where the defendant was indicted for violating Article 56 (2) of the Welfare of Older Persons Act (hereinafter referred to as the "Act") on the ground that he operated a medical welfare facility for older persons, which falls under a medical welfare facility for older persons without filing a report, the case applying Article 56 (2) of the Act and Article 57 (1) of the Act to the person who established and operated a residential welfare facility for older persons and a medical welfare facility for older persons without filing a report, and interpreting Article 56 (2) of the Act which stipulates the same subject of punishment as applicable in the same case, if it is interpreted that Article 56 (2) of the Act which provides a higher statutory punishment for older persons is in violation of the principle of no punishment without the law, on the grounds that Article 57 (1) 1 of the Act should apply to the defendant's act, Article 56 (2) of the Act is applied.

Article 12(1) of the Constitution of the Republic of Korea, Article 1(1) of the Criminal Act, Article 56 (see current Article 56(2) and Article 57 subparag. 1 of the former Welfare of Older Persons Act (Amended by Act No. 8608, Aug. 3, 2007); Article 35(2) of the former Welfare of Older Persons Act (Amended by Act No. 10785, Jun. 7, 201); Articles 33(2) and 56(2) and 57 subparag. 1 of the Welfare of Older Persons Act; Article 23(1)2 of the former Long-Term Care Insurance for Older Persons (Amended by Act No. 10785, Jun. 7, 2011); Article 31 of the Long-Term Care Insurance for Older Persons (Amended by Act No. 12067, Aug. 13, 2013); Articles 32 and 38 of the former Act on Long-Term Care Insurance for Older Persons.

Defendant

Gu resident reporters and one other

Attorney Song-hee

Defendant shall be punished by a fine of KRW 2,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The defendant is a pastor who operates an ○○ church located in Ulsan Jung-gu (hereinafter omitted).

Where persons other than the State or local governments intend to operate medical welfare facilities for older persons, they shall report to the head of a Si/Gun/Gu.

Nevertheless, without filing the above report from January 2, 2007 to June 3, 201, the Defendant operated a medical and communal living home for the aged, which corresponds to medical welfare facilities for the aged, such as providing them with home-like residential conditions, meals, medical treatment and other convenience necessary for daily life, and operating a medical and communal living home for the aged, with multiple dementia, including Nonindicted 1 (n, 89 years old), etc. (n, 89 years old), with regard to the second floor of the elderly with dementia, and receiving money from their dependents every month at the above elderly's entrance fees, and providing them with the aged who need assistance due to a mental and physical disorder due to a sexual disease, etc.

1. Court statement of the defendant (the second court date);

1. Investigation protocol of Nonindicted Party 2 by the prosecution

1. Each police statement on Nonindicted 3, 4, 5, and 6

1. Records of seizure and the list of seizure;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 57 subparagraph 1 of the Welfare of Older Persons Act and Article 35 (2) (Generally, Selection of Fines)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Summary of the assertion

Article 56 (2) of the Welfare of Older Persons Act was prosecuted for the charged facts of this case, but Article 57 (1) of the same Act provides more severe punishment provisions for the same constituent elements. Thus, Article 57 (1) of the same Act that is more favorable to the defendant should be applied.

2. Relevant statutes;

The entries in the attached statutes are as follows.

3. Determination

A. Articles 33(2) and 35(2) of the current Welfare of Older Persons Act (hereinafter “Act”) provide that “where a person other than the State or a local government intends to establish residential welfare facilities for older persons and medical welfare facilities for older persons, he/she shall report to the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu.” As to “a person who establishes or operates residential welfare facilities for older persons (age facilities, communal homes for older persons, welfare facilities for older persons, welfare facilities for older persons), medical welfare facilities for older persons (life care facilities for older persons, and communal homes for older persons) without reporting pursuant to Articles 33(2) and 35(2) of the Act, Article 56(2) of the Act provides that “a person shall be punished by imprisonment for not more than two years or a fine not exceeding 10 million won” under Article 57 subparag. 1 of the Act, and a person who overlapping the same statutory penalty as to the elements of a law.

B. The circumstances leading to such overlapping penal provisions are as follows.

(1) Article 56 of the former Welfare of Older Persons Act (amended by Act No. 8608 of Aug. 3, 2007; hereinafter “former Act”) provides for the classification of welfare facilities for older persons into free, actual, and pay facilities. Article 56 of the former Act provides that a person who establishes and operates a residential welfare facility for older persons and a medical welfare facility for older persons, who are “paid”, without reporting, shall be punished by imprisonment for not more than two years or by a fine not exceeding 10 million won, and Article 57 Subparag. 1 of the former Act provides that a person who installs and operates a facility without reporting a “free or actual expenses” shall be punished by imprisonment for not more than one year or by a fine not exceeding three million won.

(2) However, according to the Act on Long-Term Care Insurance for the Aged, which was enacted on April 27, 2007 and enforced on July 1, 2008, the Act on Long-Term Care Insurance for the Aged designates medical welfare facilities for the Aged as a long-term care institution under certain conditions and operates them with the charges of the State and local governments (see Articles 2, 23(1)2, 31, 38, and 40 of the Act on Long-Term Care Insurance for the Aged, etc.).

(3) Accordingly, in preparation for the above long-term care insurance for the elderly, which will take effect from July 1, 2008, the Welfare of the Aged Act revised the contents of reorganization of the welfare facilities for the elderly by removing the classification of facilities for the elderly such as residential welfare facilities and medical welfare facilities for the elderly, and by dividing them into care facilities for the aged, welfare facilities for the aged, sanatoriums for the aged, and special hospitals for the aged (amended on August 4, 2008). As seen earlier, Article 56 and subparagraph 1 of Article 57 of the former Act, which committed the differential punishment for non-performance of the duty to report depending on whether they are paid facilities or not, are the same as the elements of the crime, and are different from the statutory penalty, are revised to Article 56(2) and Article 57 subparag. 1 of the Act.

C. In light of the language and text, history, purport of the amendment, contents, etc. of this Act, given that under the current Act, medical welfare facilities for the aged designated as a long-term care institution with the charges imposed by the State and local governments, etc. as a result of the implementation of the long-term care insurance policy for the aged, etc., the current Act has no practical benefit to distinguish the residential welfare facilities for the aged and medical welfare facilities for the aged into free and actual expenses facilities or pay facilities for the aged. Furthermore, under the current Act, Article 56(2) and Article 57 subparag. 1 of the Act overlapping punishment provisions for the persons who installed and operated residential welfare facilities for the aged and medical welfare facilities for the aged without filing a report. However, the interpretation of Article 56(2) of the Act, which provides for the same punishment, should be applied to the persons who installed and operated the residential welfare facilities for the aged, medical welfare facilities for the aged, without filing a report under Articles 33(2) and 35(2) of the Act, should be governed by Article 57(1) of the Act.

D. Ultimately, Article 56(2) of the Act is not applicable to the criminal facts of this case against the defendant, but Article 57 subparag. 1 of the Act is reasonable (this applies only to the applicable provisions of this case within the scope recognized as identical to the facts charged, and there is no concern over causing substantial disadvantages to the defendant's exercise of his/her right of defense. Thus, it does not interfere with the amendment ex officio without changing the indictment

[Attachment] Relevant Statutes: omitted

Judges Lee Jin-hoon