Defendant

Defendant

Abnormal punishment

Attorney Shin Jae-sung

Daegu District Court Decision 2005 High Court Decision 483 Decided November 15, 2005

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

Nonindicted 1 and 2, who had obscenity in the entertainment drinking club operated by the Defendant, are not the employees employed by the Defendant, but the entertainment reception reception workers sent by the Defendant via the phone of the Defendant at the recruitment and placement office. The Defendant merely did not think that Nonindicted 1 and 2, as an entertainment receptionist, they merely drink with the customer, or did not think that they would drink with the customer, or engage in any obscene activity other than by singing or dancing, and rather, they had been given a warning that they would not engage in obscene activity. Therefore, even though the Defendant had not assisted or provided obscenity, the lower court found the Defendant guilty on the premise that there was such fact, there was an error of misunderstanding of facts.

B. Legal principles

Since physical contact is to be accepted to a certain extent in the entertainment drinking house in the entertainment drinking house, it is difficult to view such contact by the entertainment drinking room as contrary to the concept of sexual morality by having the other party feel a normal sense of sexual humiliation. In addition, it is difficult to view it as obscenity solely on the fact that the above Nonindicted Party 1 et al. merely put in clothes or was walking in a boom. Nevertheless, the lower court determined that it constitutes obscenity solely on the basis of the above facts alone was in violation of the Supreme Court precedents as to obscenity, or in violation of the misapprehension of legal doctrine as to this.

2. Determination

A. As to the assertion of mistake of fact

Even if Non-Indicted 1 and 2 did not receive the Defendant’s instructions, it is reasonable to view that the Defendant violated the rules to observe the amusement tavern business operators affecting the public morals (see Supreme Court Decision 2005Do4156, Jul. 29, 2005). Accordingly, the Defendant’s assertion of mistake of facts is rejected.

B. As to the assertion of misapprehension of legal principle

The facts acknowledged by the court below based on the evidence duly adopted by the court below, that is, the above non-indicted 2, i.e., allowed male customers to walk her chest with her clothes while wearing her clothes; the non-indicted 1, who was walking her buck so that the bucks can be seen as being under the shouldering of the private retail sprink so that the sprinks can be seen as having caused sexual humiliation and a normal sexual humiliation by stimulateing male customers' sexual desire. Accordingly, the above non-indicted 1 and 2, in light of the specific circumstances such as the date and time and place of the bucks, the exposure level and degree, and the exposure motive and circumstance, it is reasonable to view that the above non-indicted 1 and 2 caused sexual humiliation. Accordingly, the defendant's assertion of the above legal principles cannot be accepted.

3. Conclusion

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

Justices Kim Tae-tae (Presiding Justice)