Requirements for falling under the "act of selling alcoholic beverages to juveniles" under Article 51 subparagraph 8 of the Juvenile Protection Act, and whether the act of selling alcoholic beverages to juveniles constitutes "act of selling alcoholic beverages to juveniles" under Article 51 subparagraph 8 of the Juvenile Protection Act in cases where only adults sit and drink alcoholic beverages later at the time when a restaurant operator provides alcoholic beverages (negative)

Article 26(1) and Article 51 Subparag. 8 of the Juvenile Protection Act

Supreme Court Decision 2001Do4069 Delivered on October 9, 2001 (Gong2001Ha, 2504) Supreme Court Decision 2001Do6032 Delivered on January 11, 2002 (Gong2002Sang, 510) Supreme Court Decision 2005Du2223 Delivered on May 27, 2005 (Gong2005Ha, 1058)

Defendant

Defendant

Suwon District Court Decision 2008No3595 decided Nov. 5, 2008

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

The grounds of appeal are examined.

1. Based on the adopted evidence, the lower court affirmed the first instance judgment convicting the Defendant of the violation of the Juvenile Protection Act on January 27, 2008, on the ground that: (a) at around 01:20 on January 27, 2008, the Defendant, who operates a general restaurant with the trade name of “(the name of restaurant omitted)”, sold 2 soldiers, 2,000c beer, 26,40c beer, and 26,400 won in total without confirming the identification card of Nonindicted 1 (the juveniles of the above restaurant) and 3 other than the juveniles of the above restaurant.

2. However, the lower judgment is difficult to accept for the following reasons.

In order for a person who operates a restaurant to constitute “sale of alcoholic beverages to juveniles” under Article 51 subparag. 8 of the Juvenile Protection Act, the act of selling alcoholic beverages, such as liquors, to many people who entered the restaurant constitutes “an act of selling alcoholic beverages to juveniles.” As such, the juvenile was included in the day and the restaurant operator should have been aware of the fact at the time of the offer of alcoholic beverages to the restaurant. Thus, in a case where a person who was engaged in the restaurant was present at the time of the offer of alcoholic beverages, he was able to anticipate that the restaurant operator later fell with the juvenile because only the adult was present at the time of the offer of alcoholic beverages, and later he was present at the time of the later, he was able to anticipate that the restaurant operator later fell with the juvenile, or even if the juvenile was present at the time of the offer of alcoholic beverages, it cannot be deemed that the restaurant operator had sold alcoholic beverages to the juvenile even if he was present at the time of the offer of alcoholic beverages (see, e.g., Supreme Court Decision 200Do169, Apr. 2009).

According to the facts and records admitted by the court below, it is possible to find out the following facts: Nonindicted 2, 3, 4, and 5, etc., who are the parties with the above Nonindicted 1, together with the above Nonindicted 1, sent text messages to the above Nonindicted 1, 2,00c beer and 2,00c beer, etc., as seen above, on the first place in the above restaurant; and the above Nonindicted 1, who joined the above restaurant, joined the above restaurant as the above restaurant; and then, the above Nonindicted 1 joined the restaurant as the above restaurant, was able to know the fact of drinking together with the above Nonindicted 2, etc.; however, there is no evidence to find that the above Nonindicted 1 ordered alcohol after combination with the above Nonindicted 1, or that the Defendant or his employee predicted that the above 1 was concurrent with the above 1,000c beer at the time of receiving the order, and there is no evidence to readily conclude that the juvenile was a juvenile on the other hand, 3, 1989.

In light of these facts in light of the legal principles as seen earlier, the Defendant cannot be deemed to have sold alcohol, such as alcohol, to Nonindicted 1, and there is no other evidence to acknowledge it, and unless there is no evidence to readily conclude that the above Nonindicted 2, etc. is a juvenile, it may not be deemed that the Defendant sold alcohol to the juvenile who used to sell alcohol to him.

Nevertheless, the judgment of the court below which made a different judgment is erroneous in the misapprehension of legal principles on the Juvenile Protection Act or by misunderstanding facts against the rules of evidence, which affected the conclusion of the judgment. The ground of appeal on this point is with merit.

3. 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 Kim Young-ran (Presiding Justice)