Defendant

Defendant

Song-young (prosecutions) and Kim Jong-hun (Trial)

Attorney Or-Support et al.

Suwon District Court Decision 201DaMa2228 decided June 1, 2012

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

Defendant’s “○○○○○” business is not a lodging business with the main purpose of lodging as a new type of business, and even if it falls under the lodging business, the prosecutor was indicted on the charge of violating the Game Industry Promotion Act by deeming that it was not a lodging business at the time of crackdown around 2009, and thus, the Defendant’s act was erroneous that it did not constitute a crime under the law, and thus, constitutes a case where there was a justifiable reason for misunderstanding.

B. Unreasonable sentencing

The punishment of the court below against the defendant (a fine of five million won) is too unreasonable.

2. Determination

(a) The defendant's business is not the accommodation business;

Article 1 of the Public Health Control Act provides that "the purpose of this Act is to improve the level of hygiene by prescribing matters concerning the hygiene management, etc. of businesses and facilities used by the public, thereby contributing to the improvement of the health of the people." In addition, according to Article 2 of the Public Health Control Act, the term "public health business" means the business of providing sanitary management services to many people, such as lodging business, public bath business, utilization business, beauty and beauty business, washing business, and hygiene control service business, and the term " lodging business" means the business of providing such services as facilities and equipment

피고인의 ‘○○○○○○텔’ 영업이 공중위생관리법 제2조 제1항 제2호 의 “숙박업”에 해당하는지에 관하여 살피건대, 원심이 적법하게 채택, 조사한 증거들에 의하여 인정되는 다음 사정들, 즉, ① 피고인의 영업장이 있는 건물은 건축물대장에 숙박업소(여관)로 등록되어 있고, 카운터와 객실 및 객실로 통하는 복도로 구성되어 있어 숙박업소에 적합한 구조와 형태를 갖추고 있는 점, ② 피고인이 성남세무서에 ‘○○○○○○텔’에 대한 사업자등록을 하면서 업태를 ‘숙박’으로 표시한 점, ③ 영업장에 설치된 간판이 ‘○○ ○○○○ 텔 ♨’로 되어 있는바 숙박업소로서의 설비와 서비스를 제공하고 있음을 강조하는 문구와 기호가 포함되어 있는 점, ④ ○○○○○○텔에는 총 48개의 객실이 설치되어 있고, 각 객실은 외부와 완전히 구분·독립되어 있으며, 객실은 VVIP, VVIP스파, VIP, 특실, STANDARD, 단체룸 등 객실의 크기와 설비의 수준 등에 따라 등급이 구분되어 있는 점, ⑤ 각 객실은 침실과 욕실로 나뉘어 있고, 침실에는 침대와 침구, 쇼파 등이 구비되어 있으며, 욕실에는 욕조와 샤워시설이 갖춰져 있는 점, ⑥ 각 객실에 구비된 침대와 침구, 욕조와 샤워시설은 일반적인 숙박업소에 비치된 것과 유사한 것으로서 간이하게 휴식을 취하기 위한 용도의 것이라고 볼 수 없는 것들인 점, ⑦ 카운터에 비치되어 있는 요금표에 앞서 본 객실 등급 및 용도(숙박과 대실), 이용시기(주중과 주말)에 따라 구분하여 요금이 책정되어 있는 점(공소외 4는 위 요금표와 관련하여 “차후 △△△모텔과 합하여 □□□□호텔로 허가를 받아 사업을 하려고 미리 요금표를 만들어 비치했다”는 취지로 진술한 바 있고, 피고인도 그와 같은 취지로 주장하나, 위 요금표에는 ‘○○○○○○텔 요금표’라고 명시되어 있을 뿐 아니라 그 주장 자체로 보아도 궁색하기 이를 데 없다), ⑧ 손님에게 타월과 1회용 세면백을 제공하였고, 특히 1회용 세면백에는 1회용 면도기 등 위생용품과 콘돔 등이 들어 있으며, 침대시트 교환, 객실 청소, 모닝콜 등 숙박에 필수적인 부대서비스가 제공된 점(피고인은 이와 관련하여 숙박과 관련된 부대서비스를 제공하지 않았다고 주장하나 피고인이 직접 제공하거나, 이벤트용품대여점 업자인 공소외 4를 통하여 제공하였음이 인정된다), ⑨ ○○○○○○텔에서 이벤트용품대여점을 운영하였다는 공소외 4는 원심 법정에서 “주로 이벤트 손님이 온다”고 진술하면서도 “이벤트용품 장사가 잘 안 되어 이벤트용품대여점을 그만두었다”는 취지의 상반된 진술을 하였고, ‘실제로 숙박을 위해 드나드는 곳이 아니냐’는 질문에는 “모른다”며 답변을 회피한 점, ⑩ 피고인은 수사기관에서 “2011. 8. 20.경 노래방기기와 닌텐도게임기, 플레이스테이션3 게임기를 빼내어 지금은 설치되어 있지 않은데, 직원의 실수로 411호에만 닌텐도게임기가 비치되어 있다”고 진술한 바 있는 점, ⑪ 통상 숙박업소에서 고객을 유인하기 위하여 대형TV와 같은 멀티미디어 기기나 인터넷 랜 설비를 갖추는 사례는 매우 흔한 것인 점 등의 사정과 이에 더하여 ⑫ 공중이 이용하는 영업과 시설의 위생관리등에 관한 사항을 규정함으로써 위생수준을 향상시켜 국민의 건강증진에 기여함을 목적으로 하는 공중위생관리법의 입법 목적을 종합하여 보면, 피고인이 운영한 ○○○○○○텔은 공중위생관리법이 정하는 바와 같이 주로 손님들에게 잠을 자고 머물 수 있는 시설 및 서비스를 제공하는 숙박업에 해당하고, 여기에 덧붙여 대형TV, 컴퓨터와 모니터, 인터넷 랜 설비 등을 설치하고, 1층에 이벤트용품점을 갖추어 놓은 것은 손님들을 유치하기 위한 부대시설 내지 부대 서비스에 불과하다고 할 것이므로 피고인의 위 주장은 이유가 없다.

B. The assertion of errors in law

Article 16 of the Criminal Act provides that an act of misunderstanding that one's own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there are justifiable grounds for misunderstanding. However, it is generally accepted that his act constitutes a crime, but it does not constitute a crime under the Acts and subordinate statutes in his own special circumstances, and if there are justifiable grounds for misunderstanding, it shall not be punishable. Whether there exists justifiable grounds shall be determined depending on whether the act of misunderstanding is not aware of the illegality of his own act as a result of misunderstanding, even though it was possible to recognize the illegality of his act if the act was done in full with his intellectual ability, even though it was possible to recognize the illegality of his act, and the degree of efforts necessary for recognizing the illegality should be determined differently depending on the situation of the act, the awareness ability of the actor, and the social group to which the actor belongs (see Supreme Court Decision 2005Do3717, Mar. 24, 2006).

In light of the records, on November 19, 2009, the head of Seongdong-gu, Sungnam-si, who filed a complaint with the head of Sungnam-gu, as a lodging business by deeming the defendant's business to be the defendant's act of ○○○○○○○○○○○○○○○○○○○○ as a violation of the Public Health Control Act. In this case, the defendant alleged that the defendant's business was a multi-party who lent the place where the event occurred, and that the defendant's business was not required to be reported or registered. However, the prosecutor of the Sungnam-si branch office of the Suwon District Prosecutors' Office prosecuted the defendant as a violation of the Game Industry Promotion Act on the grounds that the defendant was engaged in combined distribution and game providing business without registration. Accordingly, a summary order of KRW 2 million was

However, as above, the defendant was accused of having run the lodging business without reporting from the Seongbuk-gu Office of Seongbuk-gu, the competent authorities, and since a fine became final and conclusive on the ground that the defendant was indicted for running the combined distribution and game providing business without registration through the police and prosecutor's investigation, it is in violation of the overall legal order even if the defendant's act is not what specific applicable laws are, that is, the defendant's act was clearly aware of the illegality of the defendant's business act.

Rather, if the Defendant intended to comply with the law, he/she should have registered even as a combined distribution and game providing business under the Act on the Promotion of Game Industry, but continues to conduct business without any registration until now, and the Defendant stated in an investigative agency that “I would like to ask the Culture and Sports Team of Jung-gu Office to “I would not be able to register because I would not comply with the laws and regulations,” and there was no specific assertion or ground at all, and if it was impossible to register as a combined distribution and game providing business, I could ask the competent administrative agency about whether the Defendant should register as a combined distribution and game providing business or for any other business. As seen earlier, in full view of the circumstances such as the fact that the Defendant expressed his/her type of business as “ accommodation business” when he/she registers his/her business in Seongbuk-gu, and even if he/she did not have been punished as a violation of the Game Industry Promotion Act, he/she could not be viewed as being subject to criminal punishment under the Act on the Promotion of Public Health Control Act even if the Defendant did not have made efforts to avoid criminal punishment for the Act.

On the other hand, Supreme Court Decision 95Do717 Decided August 25, 1995 cited by the defendant was rendered a non-prosecution disposition on the grounds that the prosecutor was not guilty, and his act was believed lawful in light of the overall legal order, and it is not applicable to the case where the law applied as in this case is different, but is judged to be unlawful.

Therefore, the defendant's above assertion cannot be accepted.

B. Determination on the assertion of unfair sentencing

The fact that there is no record of criminal punishment except that sentenced to a fine due to a violation of the Game Industry Promotion Act, etc. is favorable to the defendant. However, in light of the fact that the degree of violation, such as the size and duration of the defendant's business, is not less than that of the defendant, even if considering the above circumstances and other circumstances of the defendant's age, character and conduct, environment, etc., it does not seem that the court below's punishment is too

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 Song Human Rights (Presiding Judge)