[1] The standard for determining whether a sports facility business entity’s provision of bathing and taking place to a person who uses a sports facility at a place attached to the sports facility constitutes “public bath business” under Article 3 of the Public Health Control Act

[2] Whether bathing facilities installed by a person operating a sports facility constitute “facilities excluded from public bath business” under the proviso to Article 2(1)3 of the Public Health Control Act and each subparagraph of Article 2(2) of the Enforcement Decree of the Public Health Control Act (negative)

[1] In light of the language, structure, and purpose of Article 1, Article 2(1)1, Article 2(1)3(a)(b), Article 3(1), Article 4(1), Article 4(2), Article 20(1)1 of the Public Health Control Act, Article 2 [Attachment 1], Article 4 [Attachment 2], Article 7 [Attachment 4], and Article 7 [Attachment 4] of the Enforcement Rule of the Public Health Control Act, providing a bath and released service to a person who uses a sports facility at a place attached to the sports facility shall be determined comprehensively in light of the following: (a) the content and scale of the bathing and landing facility; (b) the weight of the bathing and landing facility in the whole sports facility; (c) the business operator’s advertisement and promotion details; and (d) whether the relevant service continues to provide it repeatedly; and (d) the legislative purpose and purpose of the Public Health Control Act to contribute to improving the level of health of the people by prescribing matters concerning sanitary control of business operated by the public.

[2] The proviso of Article 2(1)3 of the Public Health Control Act excludes bathing rooms, etc. attached to a lodging business establishment from “public bath business,” and Article 2(2) of the Enforcement Decree of the Public Health Control Act provides for bathing rooms (Article 1) attached to a lodging business establishment, which are excluded from public bath business, and physical temperature management rooms (Article 2(2) of the Enforcement Decree of the Public Health Control Act) of the comprehensive sports facilities business under the Installation and Utilization of Sports Facilities Act (hereinafter “sports facilities Act”), bathing rooms attached to facilities for rural and fishing village public lodging business under the Rearrangement of Agricultural and Fishing Villages Act, bathrooms attached to facilities for natural recreation business under the Forestry and Fishing Villages Act, bathrooms attached to juvenile training facilities under Article 10 subparag. 1 of the Juvenile Activity Promotion Act, and bathrooms attached to a foreign national tourist entertainment facility (Article 3) registered under Article 4 of the Tourism Promotion Act.

However, in a case where a person who operates a sports facility installs bathing facilities, not “the physical temperature control room of the comprehensive sports facility business” under the above provision, it cannot be deemed that it constitutes a facility under the proviso of Article 2(1)3 of the Public Health Control Act and Article 2(2) of the Enforcement Decree of the Public Health Control Act. The reasons are as follows.

(3) Of the individual standards, Article 4(7) of the Public Health Control Act and Article 2 [Attachment 1] Ⅱ of the Enforcement Decree of the Public Health Control Act provides that “A bathing rooms or shower rooms shall be installed by guest rooms,” and Article 7 [Attachment 4] 1(b) of the Enforcement Rule of the same Act provides that “The number of bathing rooms shall meet the standards under subparagraph 2 of the attached Table 2 (water quality standards for bathing rooms)” and “the standards under Article 10(1)2 of the Enforcement Decree of the Public Health Control Act (excluding water quality standards for bathing rooms) shall be established in a lodging business and a comprehensive sports facility business.”

On the other hand, Article 11(1) of the Sports Facilities Act, Article 8 [Attachment 4] 1(b)(1)(1) of the Enforcement Rule of the Sports Facilities Act provides that “b)” as one of the convenience facilities that can be installed arbitrarily for reported sports facility business other than the comprehensive sports facility business under the Sports Facilities Act, and does not stipulate specific installation standards or sanitary control standards. This is intended to regulate sanitary control standards under the Public Health Control Act, considering the possibility of causing harm to national health and sanitation.

[1] Articles 1 and 2 (1) 1 of the former Public Health Control Act (Amended by Act No. 13983, Feb. 3, 2016); Articles 2 (1) 3, 3 (1), 4 (1) and (2), and 20 (1) 1 of the Public Health Control Act; Article 2 [Attachment Table 1], 4 [Attachment Table 2], 4 [Attachment Table 2], 7 [Attachment Table 4] of the Enforcement Rule of the Public Health Control Act / [2] Articles 2 (1) 3, 3 (1), 4 (7), and 20 (1) 1 of the Public Health Control Act; Article 2 (2) of the Enforcement Decree of the Public Health Control Act; Article 7 [Attachment Table 4] Article 2 (1) 3 of the Enforcement Decree of the Public Health Control Act; Article 10 (1) 2 of the Installation and Utilization of Sports Facilities Act; Article 8 (2) / [Attachment Table 4] Article 2 of the Enforcement Rule of the Public Health Control Act

Defendant

Defendant

Law Firm Domin Law Firm, Attorneys Park Gyeong-Gyeong et al.

Seoul Central District Court Decision 2016No4294 Decided January 26, 2017

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. misunderstanding of legal principles as to “public bath business” and facilities excluded therefrom under the Public Health Control Act (Ground of appeal No. 1)

A. Whether the operation of bathing-related facilities of the instant case constitutes public bath business under the Public Health Control Act

(1) The purpose of Article 1(1)1 of the Public Health Control Act (hereinafter “Act”) is to contribute to improving the level of hygiene by prescribing matters concerning the business and the sanitary control, etc. of facilities used by the public (Article 1). Article 2(1)1 of the Act provides that “public health business” is a business providing sanitary control services to many people, which is a lodging business, public bath business, barber business, beauty and beauty business, laundry business, and hygiene control service business,” and Article 2(1)3 of the Act provides that “public bath business” is a business providing customers with facilities, equipment, etc. that may take bath in water (a) (hereinafter “public bath service”) or “facilities, equipment, etc. that may have customers enjoy by directly or indirectly heating the heat generated from beer, yellow sand, roof, etc.” [b).

A person who intends to run a public health business shall have facilities and equipment prescribed by Ordinance of the Ministry of Health and Welfare for each type of the public health business and file a report thereon with the head of the relevant Si/Gun/Gu (limited to the head of an autonomous Gu) (Article 3(1) of the Act). In the case of the public bath business, a bath room equipped with bathing, bathing, and shower rooms, and a shot room shall be installed respectively; in the case of the public bath business, a shot room may not be installed; and in the case of the business that provides only bathing services, a bath room may not be installed (Article 2 [Attachment Table 1] of the Enforcement Rule of the Public Health Control Act). In the event that a public health business operator violates his/her duty to report, he/she shall be subject to criminal punishment (Article 20(1)1 of the Act).

A public health business operator shall manage his/her business-related facilities and equipment in a sanitary and safe manner so as not to cause any harm to his/her users’ health (Article 4(1) of the Act). In cases where a public bath business operator provides bathing services, he/she shall observe matters concerning water quality control, such as water quality standards of public baths and water quality inspection methods, and where he/she provides bathing services, he/she shall observe the sanitary standards, etc. (Article 2). The Enforcement Rule of the Public Health Control Act provides specific standards for the water quality standards and water quality inspection methods of the public bath, sanitary control standards, etc. to be observed by the public bath business operator (Article 4

(2) In light of the language and text, structure, and purpose of the Public Health Control Act, etc., whether a sports facility business entity constitutes a “public bath business” under Article 3 of the Public Health Control Act to provide bathing and attracting service to a person who uses a sports facility at a place attached to the sports facility ought to be comprehensively determined in light of the legislative purpose of the Public Health Control Act and the standards for facilities to achieve such legislative purpose of the public health Control Act, and the criteria for facilities to achieve such legislative purpose, sanitary standards, etc.

(3) According to the lower judgment and the evidence duly admitted, the following facts are revealed.

(A) From March 2, 2002 to February 3, 2016, the Defendant is operating a physical training hall business (area: 351 square meters) with the trade name, “○○○○○○○○○○○○○○○○,” from Gangnam-gu Seoul ( Address omitted) and underground second-storys.

(B) The instant bathing-related facilities installed by the Defendant in a physical training hall are 220 square meters in total area. ① In the case of male use, three bath rooms and two rooms are installed in the area of 150 square meters in total, and ② in the case of female use, two bath rooms and two rooms are installed in the area of 70 square meters in the area of 70 square meters in total.

(C) The Defendant placed an outdoor advertisement on the basis of the words such as “ hotel type rain”, “heat, hot spring, damp, and dry rain,” and allowed paid members using the physical training center to use the instant bathing-related facilities.

(4) In light of the above contents and size of the instant bathing-related facilities, the weight of the bathing-related facilities in the entire sports facilities, and the Defendant actively advertised and publicized the instant bathing-related facilities to attract customers, etc., the Defendant’s act of allowing a paid member using the instant bathing-related facilities using the instant bathing-related facilities constitutes a “public bath business” with the duty to report under the Public Health Control Act, and the Defendant’s act without filing a public bath business report under Article 3(1) of the Public Health Control Act is illegal.

The judgment below to the same purport is justifiable in light of the aforementioned legal doctrine. In so determining, the lower court did not err by misapprehending the legal doctrine on “public bath business” as otherwise alleged in the grounds of appeal.

B. Whether the instant bathing-related facilities constitute “facilities excluded from public bath business under the Public Health Control Act”

(1) The proviso to Article 2(1)3 of the Act excludes bathing rooms, etc. attached to a lodging business establishment, as prescribed by the Presidential Decree, from “public bath business.” As a result, Article 2(2) of the Enforcement Decree of the Public Health Control Act provides for bathing rooms (No. 1) attached to a lodging business establishment that is excluded from public bath business, and physical temperature management rooms (No. 2) of the comprehensive sports facilities business under the Installation and Utilization of Sports Facilities Act (hereinafter “sports facilities Act”), bathing rooms attached to facilities installed in natural recreation forests under the Rearrangement of Agricultural and Fishing Villages Act, bathing rooms attached to facilities installed in natural recreation forests under the Forestry and Recreation Act, youth training facilities under subparagraph 1 of Article 10 of the Juvenile Activity Promotion Act, and bathing rooms attached to foreign tourist amusement facilities registered under Article 4 of the Tourism Promotion Act (No. 3).

However, in a case where a person who operates a sports facility installs bathing facilities, not “the physical temperature control room of the comprehensive sports facility business” under the above provision, it cannot be deemed that it constitutes facilities under the proviso of Article 2(1)3 of the Act and each subparagraph of Article 2(2) of the Enforcement Decree of the Public Health Control Act. The reasons are as follows.

(A) The provisions of Article 4(7) of the Public Health Control Act and Article 2 [Attachment Table 1] Ⅱ of the Enforcement Rule of the Public Health Control Act provide that “a bath room attached to a lodging business establishment, which is a facility excluded from a public bath business, shall meet the standards under subparagraph 2 of the Enforcement Rule of the same Act [Attachment Table 4]. Article 7 [Attachment Table 4] 1 subparag. 1(b) of the Enforcement Rule of the same Act provides that “a bath room or shower room shall be installed for each guest room,” and “a bath room shall meet the standards under subparagraph 2 of the attached Table 1 [Attachment Table 2] among water quality standards.”

As such, Article 2(2) of the Enforcement Decree of the Public Health Control Act, which provides for the facilities excluded from the public bath business, does not simply exclude the use of bathing facilities from the public bath business on the sole ground that the use of bathing facilities is accompanied by the use of the main facilities.

(B) On the other hand, Article 11(1) of the Sports Facilities Act, Article 8 [Attachment 4] subparag. 1(b)(1) of the Enforcement Rule of the Sports Facilities Act provides that “b)” as one of the convenience facilities that can be installed arbitrarily for reported sports facility business other than the comprehensive sports facility business under the Sports Facilities Act may be installed in accordance with the relevant Acts and subordinate statutes, but no specific installation standards or sanitary control standards may be provided. This can be deemed to have been established in consideration of the possibility of causing harm to the health and sanitation of the people, and it can be deemed that the regulation under the sanitary control standards

(2) The Defendant asserts that Article 2(2) of the Enforcement Decree of the Public Health Control Act, which provides for the facilities excluded from the “public bath business, is accompanied by the use of the pertinent facilities, and is excluded from the public bath business, and thus, it should be viewed as an example. The Defendant asserts that the instant bathing and the instant facilities should be excluded from the public bath business, since the use of the physical fitness hall in the Defendant’s operation is accompanied by the act of cleaning the body.

However, as seen above, it is clear that the physical training site operated by the Defendant does not constitute the “general sports facility business” as stipulated in the Sports Facilities Act, and it cannot be deemed that the instant bathing and removal facilities are excluded from the “public bath business.”

The judgment below to the same purport is justifiable in light of the aforementioned legal doctrine. In so determining, the lower court did not err by misapprehending the legal doctrine on “facilities excluded from public bath business” as otherwise alleged in the grounds of appeal.

2. misunderstanding of legal principles as to errors in law and violation of the rules of evidence (ground of appeal No. 2)

Article 16 of the Criminal Act provides that an act of misunderstanding that one’s act does not constitute a crime under the law shall not be punishable only when there is a justifiable reason for misunderstanding. This generally purports that an act of misunderstanding that one’s act does not constitute a crime but does not constitute a crime permitted under the law in light of his/her special circumstances, and that a punishment shall not be imposed in a case where there is a justifiable reason for misunderstanding. The justifiable reason in this context is the opportunity to examine or inquire about the possibility of illegality of one’s act by having fulfilled his/her intellectual ability, and even though there was a possibility that one’s own act would have been aware of illegality if he/she had made a serious effort to avoid it, it shall be determined according to whether the act was not recognized as a result of his/her failure. The degree of effort necessary for recognizing illegality ought to be determined differently according to the detailed situation of act, the offender’s individual awareness ability, and social group to which the actor belongs (see, e.g., Supreme Court Decision 2005Do3717, Mar. 24,

The lower court determined that there was no justifiable reason for the erroneous perception that the Defendant did not recognize the illegality, in light of the fact that the Defendant did not completely submit materials that could be deemed to have been making a serious effort to avoid illegality through questioning, etc. with the competent authority.

Examining the reasoning of the lower judgment in light of the record, the lower court’s determination is justifiable in line with the foregoing legal doctrine. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending

3. Ground of appeal on unreasonable sentencing (Ground of appeal No. 3)

According to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed, an appeal may be filed on the ground of unfair sentencing. Therefore, in this case where a more minor sentence has been imposed on the defendant, the argument that the sentence is too unreasonable

4. Conclusion

The Defendant’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)