Defendant

Prosecutor

Kim Ha

Public-service advocates No. 1000

Suwon District Court Decision 2008 High Court Decision 2262 Decided February 10, 2010

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

Since the fact that Nonindicted 1, a juvenile, was employed by Nonindicted 2 as an employee at the above main place of the Defendant’s operation by Nonindicted 2, that Nonindicted 2 reported the employment of Nonindicted 1 to the Defendant and gave consent thereto, it may be deemed that the Defendant directly employed Nonindicted 1, and even if Nonindicted 2 did not report the employment of Nonindicted 1 to the Defendant, it is reasonable to interpret that Nonindicted 2 directly employed Nonindicted 1 by the Defendant’s implied consent on the act of employing Nonindicted 1 from June 2, 2007, which he knew that Nonindicted 1 was employed by the Defendant, at least, it is reasonable to interpret that Nonindicted 2 directly employed Nonindicted 1 by Nonindicted 2, who was aware of the employment of Nonindicted 1 in the above ○○○○○○ entertainment drinking club. However, the lower court acquitted the Defendant of the facts charged in this case on the ground that it was recognized that Nonindicted 2 had employed Nonindicted 1, but the Defendant employed Nonindicted 1, thereby affecting the conclusion of the judgment.

2. Determination

A. Summary of the facts charged in this case and the judgment of the court below

Article 50 subparag. 2 of the Juvenile Protection Act (amended by Act No. 8877 of Feb. 29, 2008; hereinafter the same) provides that “The Defendant employed Nonindicted Party 1 as an employee at the ○○○○○○○ Entertainment Entertainment Place, which is a business establishment harmful to juveniles, from June 1, 2007 to June 14, 2007, which is operated by the business establishment harmful to juveniles, shall not employ a juvenile.” Article 24(1) of the same Act provides that “The court below shall punish a person who employs a harmful business establishment in violation of the provisions of Article 24(1) of the Juvenile Protection Act (amended by Act No. 8877 of Feb. 29, 2008; hereinafter the same shall apply).” Article 24(1) of the same Act provides that “The owner of a business establishment harmful to juveniles shall verify the age when he intends to employ an employee, and shall not employ a juvenile.” The evidence alone presented by the prosecutor that the Defendant directly employs Nonindicted Party 1 and Nonindicted Party 21.

B. Judgment of the court below

According to each evidence duly adopted and examined by the court below, it is acknowledged that the manager of the ○○○ entertainment drinking house, which is a business establishment harmful to juveniles, was paid by Nonindicted 2 on June 1, 2007 to Nonindicted 1, who is a juvenile business establishment, and Nonindicted 1 was employed by Nonindicted 1 as an employee of the ○○○ entertainment drinking house, and that Nonindicted 1 was engaged in cleaning, etc. from around that time, while working as an employee of the ○○○ entertainment drinking club. The Defendant and Nonindicted 1, who worked for the ○○○ entertainment drinking house, were able to recognize that Nonindicted 1 and she got a short time with Nonindicted 1.

However, even after examining all the evidence submitted by the prosecutor, it is difficult for the court below to find that the defendant employed the non-indicted 1 as the employee of the non-indicted 1, and it is difficult to find that the defendant directly employed the non-indicted 1 as the employee of the ○○○○○ entertainment drinking house. The defendant reported the appearance of the non-indicted 1 working at the ○○○○○○ entertainment drinking house, and that the defendant suppered the non-indicted 1, the mere fact that the non-indicted 1 agreed to provide labor to the defendant and agreed to pay remuneration to the non-indicted 1, or that the defendant consented to the employment of the non-indicted 1 made by the non-indicted 2 and can be evaluated as being directly employed by the defendant (in consideration of these circumstances, Article 54 of the Juvenile Protection Act provides joint penal provisions to punish the non-indicted 1's illegal acts, such as manager, etc.).

Therefore, the judgment of the court below which acquitted the defendant on the ground that the charge in this case constitutes a case where there is no proof of crime (the part of Article 51 subparagraph 8 of the Juvenile Protection Act, excluding the application of Article 51 subparagraph 8 of the same Act, is judged unconstitutional on the ground that Article 54 of the Juvenile Protection Act, which provides that "if an agent, employee, or other worker of an individual commits an act of violation under Article 51 subparagraph 8 with respect to the business of the individual, a fine for such individual shall be imposed on the individual," is against the principle of liability. However, the remaining part of Article 51 subparagraph 8 of the same Act, excluding the application of the same Article, is still effective) is a case where there is no evidence of crime, and there is no error of law by mistake of facts or misunderstanding of legal principles as argued by the public prosecutor, and thus the above assertion by the public prosecutor

3. Conclusion

Therefore, since the prosecutor's appeal of this case is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Hong-gi (Presiding Judge)