[1] The meaning of "mediation" and "obscenity act" under Article 3 subparagraph 2 of the Act on the Regulation of Amusement Businesses Affecting Public Morals

[2] In a case where Defendant A, the owner of an entertainment drinking house, and Defendant B, the employee of the said main place, conspired with each other to keep a room for female customers at the said main place, provided it to three male guests who found the said place, and assisted sexual intercourses by allowing them to enter the said place, and was indicted for violating the Act on the Regulation of Amusement Businesses Affecting Public Morals, the case holding that the judgment below acquitted the Defendants of the facts charged on the grounds that it is reasonable to conclude that the Defendants took a norm prohibiting persons operating the amusement drinking business and to evaluate that they arranged sexual intercourses between male customers and female employees of the entertainment drinking club, on the grounds that it is reasonable to say that the Defendants did not comply with the rules governing the prohibition of persons operating the amusement drinking business and to evaluate them

[1] Article 3 subparag. 2 of the Act on the Regulation of Amusement Businesses Affecting Public Morals (hereinafter “the Act on the Regulation of Amusement Businesses Affecting Public Morals”) prohibits a person engaged in the amusement business affecting the public morals from “an act mediating obscene acts.” Here, “an act mediating obscene acts” means that a person engaged in the amusement business affecting the public morals arranges or assists in doing so among the parties who intend to do so by doing so. Therefore, in order to become a “mediation” of obscene acts, a party who intends to do obscene acts under his/her arrangement does not necessarily have to do so in fact, and it is sufficient if, even if there was no involvement by the parties who intend to do so, there is only an act mediating to the extent that he/she can do so by obscene acts among the parties.

Meanwhile, “obscenity” stipulated in Article 3 subparag. 2 of the Act on the Regulation of Amusement Businesses Affecting Public Morals refers to an act that stimulates, plays or satisfies a sexual desire, thereby impairing the ordinary public’s normal sense of sexual humiliation, and contrary to the good sense of sexual morality.

Therefore, whether an act of a person carrying on the amusement business affecting the public morals constitutes “mediation of obscene acts” ought to be determined on the basis of whether the act may be deemed to have caused sexual humiliation and made a normal sense of sexual shame by comprehensively taking into account the following: (a) the type of the amusement business affecting the public morals in question; (b) the type of the permitted business; (c) the user’s age limit or place to be disclosed; (d) the time and place of exposure; and (e) the part and method and degree of exposure; and (e) the motive, circumstance, etc. of exposure in the case of physical exposure.

[2] In a case where Defendant A and employees of the entertainment drinking house are indicted for violating the Act on the Regulation of Amusement Businesses Affecting Public Morals (hereinafter “the Act on the Regulation of Amusement Businesses Affecting Public Morals”), taking into account the following facts: (a) it is difficult for the Defendants to have a female employee to provide three male customers with an entertainment drinking room with it; and (b) it is difficult for them to view the said female employees to have an entertainment entertainment drinking facility under the Act on the Regulation of Amusement Businesses Affecting Public Morals; and (c) it is difficult for them to see that female employees to have an entertainment facility under the Act on the Regulation of Amusement Businesses Affecting Public Morals Public Morals to have an entertainment facility under the said regulation by allowing them to engage in entertainment; and (d) it is difficult for them to see that female employees to have an entertainment facility under the above regulation of entertainment drinking by drinking alcohol with customers or to have an entertainment facility under the said regulation of female employees to have an entertainment facility under the said regulation of women’s business under the conditions that they would not have an entertainment facility under the said regulation; and (e) it is extremely difficult for them to see female employees to have an entertainment facility.

[1] Articles 3 subparag. 2 and 10(2) of the Act on the Regulation of Amusement Businesses Affecting Public Morals / [2] Article 30 of the Criminal Act, Articles 2 subparag. 5, 3 subparag. 2, and 10(2) of the Act on the Regulation of Amusement Businesses Affecting Public Morals, Article 36(1)3 and 36(2) of the Food Sanitation Act, Article 21 subparag. 8(d) and Article 22 of the Enforcement Decree of the Food Sanitation Act

[1] Supreme Court Decision 2004Do8808 Decided February 17, 2005 (Gong2005Sang, 458) Supreme Court Decision 2010Do10171 Decided September 8, 201, Supreme Court Decision 2011Do14272 Decided December 22, 2011

Defendant 1 and one other

Prosecutor

Law Firm Japanese Constitutional Court Decision 201Na548 decided May 1, 201

Chuncheon District Court Decision 2016No746 decided September 27, 2017

The judgment of the court below is reversed, and the case is remanded to Chuncheon District Court.

The grounds of appeal are examined.

1. Article 3 Subparag. 2 of the Act on the Regulation of Amusement Businesses Affecting Public Morals (hereinafter “the Act on the Regulation of Amusement Businesses Affecting Public Morals”) prohibits a person engaged in the amusement business affecting the public morals from “an act mediating obscene acts.” Here, “a brokerage of obscene acts” means that a person engaged in the amusement business affecting the public morals arranges or assists in doing so among the parties who intend to do so. Therefore, in order to become “a brokerage of obscene acts”, a party who intends to engage in obscene acts under his/her arrangement does not necessarily have to do so in fact, and it is sufficient if there is an arrangement to the extent that he/she is able to do so, even if there is no involvement of the parties who intend to engage in obscene acts by linking with the intentions of the parties concerned (see Supreme Court Decision 2011Do14272, Dec. 22, 2011, etc.).

Meanwhile, “obscenity” stipulated in Article 3 subparag. 2 of the Act on the Regulation of Amusement Businesses Affecting Public Morals refers to an act that stimulates, plays or satisfies a sexual desire, thereby impairing the ordinary public’s normal sense of sexual humiliation, and contrary to the good sense of sexual morality.

Therefore, whether an act of a person carrying on the amusement business affecting the public morals constitutes “mediation of obscene acts” ought to be determined on the basis of whether it can be deemed that a person engaged in the amusement business affecting the public morals caused sexual humiliation and a normal sense of sexual shame by stimulating sexual humiliation from the perspective of the average person in light of the following: (a) the type of the pertinent business affecting the public morals; (b) the type of the permitted business; (c) the user’s age limit or place to be disclosed; and (d) the time and place of exposure in the case of physical exposure; and (e) the time and method of exposure; and (e) the motive and circumstance of exposure; and (e) the act of causing sexual humiliation and causing sexual humiliation from the perspective of the average person (see, e.g., Supreme Court Decision

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

A. On October 28, 2015, three male customers found the instant entertainment drinking house operated and managed by the Defendants around 22:20 on October 28, 2015, and entered the said three places. After about 10 minutes, three female employees entered the waiting room of the instant entertainment drinking house into the said three places, and entered each male customer’s partnership, and female employees provided the so-called “Wlofet” to male customers.

(b) Two male customers, who are off all of their clothes, wear only the spice sponsed by female employees, and the rest of one male guest spice sponsed by female employees on the clothes.

C. In the case where the Defendants were kept in an entertainment drinking house and had been provided to male customers, the primary sprinks for women, which had been sprinked, were made up of a spherd and sphered material, and in the case where men enter the bar, the spherical form is large enough to the left and spirded.

D. At around 23:15 on the same day, at the time when police officers control the instant entertainment drinking house, one male customer who was only female employee was exposed to half of the total number of women, and the other female employee was on the lower part of the other male customer who was only female employee. The rest of male customer was sing down with singing without having a female employee left behind.

3. A. Examining the above facts in light of the legal principles as seen earlier, it is reasonable to view that the Defendants conspired to put in collusion a norm prohibiting persons running the amusement business affecting the public morals, and that they arranged a obscenity between male customers and female employees of the entertainment tavern in this case. The reasons are as follows.

① An entertainment bar business falling under the amusement business affecting the public morals is a business that employs workers engaged in entertainment, establishes entertainment facilities, and allows customers to sing or dance. In this case, workers engaged in entertainment means women who drink with customers, singing, or dance with customers (Articles 21 and 22 of the Enforcement Decree of the Food Sanitation Act). ② Defendants’ operating methods, namely, the instant entertainment tavern, have female employees keep women’s scams at the instant entertainment bar, and provide them to the male customers, and it is very difficult for the Defendants to view them as the general business method of entertainment bars. In light of the above, it is difficult to deem that the Defendants actively sought entertainment in view of the fact that women’s employees were able to enjoy entertainment in the instant entertainment place, and that women’s employees were not able to enjoy entertainment at the time when they face face with male customers, and that women’s employees were not able to enjoy entertainment in the instant entertainment place, and it is difficult to see that they were able to have more entertainment and entertainment workers at the time when they were able to enjoy.

B. Nevertheless, the lower court reversed the first instance judgment convicting the Defendant of the instant facts charged on the grounds stated in its reasoning, including that it is insufficient to readily conclude that female employees’ entertainment activities constitute obscene acts and that it is difficult to deem the Defendants to have arranged, and determined not guilty. In so determining, the lower court erred by misapprehending the legal doctrine on the arrangement of obscene acts under Article 3 subparag. 2 of the Act on the Regulation of Amusement Businesses Affecting Public Morals, thereby adversely affecting the conclusion of the judgment

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)