In a case where Defendant (a pension operator) was indicted on charges of violating the Public Health Control Act and the Act on the Regulation of the Businesses Affecting Public Morals, on the ground that he/she had had many unspecified male and female members enjoy obscene acts at a place where he/she conducts the amusement business on the ground that he/she did not recognize that the Defendant had conducted accommodation business for commercial purposes, etc., on the ground that he/she was insufficient to recognize that he/she had conducted accommodation business, etc. for commercial purposes.

The Defendant, as a pension operator, was indicted for violating the Public Health Control Act and the Act on the Regulation of Amusement Businesses Affecting the Public Health Control Act on the ground that he/she had an unspecified number of men and women recruited, provided facilities and equipment, such as bedclothess, cooking facilities, and daily necessities, in order to enable them to sleep and stay in a penta building (hereinafter referred to as “building”) after collecting membership fees from many and unspecified persons, and provided them with facilities and equipment, such as bedclothess, cooking facilities, etc., and provided them with an unreported accommodation business. As above, the Defendant, as the manager of a penta, provided them with obscene acts at a place where he/she conducts the amusement business while lodging together in a building.

The case holding that since the articles of association of the club provides that "All financial resources of the club shall be maintained and repaired through membership fees, annual fees, management fees, and other support payments, and the master (the defendant refers to the building) shall be managed and decided by the club, and the club plans to use the membership fees, annual fees, etc. deposited in the union-paid account only for the operation of the club and the management of the building, and the defendant's prior disbursement of various expenses necessary for the operation and management of the club with his personal funds when the balance of the union-paid account is insufficient, and then the annual fees, etc. are deposited in the union-paid account when the balance is accumulated, and since the defendant again transfers money equivalent to the amount of money deposited in the union-paid account from the union-paid account to the personal account of the defendant, the defendant's personal funds transferred from the account of the defendant's personal funds from the union-paid account to the defendant's personal funds to the defendant's personal account for the purpose of collecting economic benefits from the defendant's personal funds for the purpose of collecting membership fees from the defendant's personal funds and paying the evidence alone.

Articles 2(1)1 and 2, 3(1), and 20(1)1 of the Public Health Control Act, Article 2 subparag. 4, Article 3 subparag. 2, and Article 10(2) of the Act on the Regulation of Amusement Businesses Affecting Public Health Control Act, Article 325 of the Criminal Procedure Act

Defendant

Kim Yong-Hy et al.

Attorney Kim Jong-il

The defendant shall be innocent.

1. Facts charged;

The Defendant is a person who operates “○○○○” in the city’s address omitted.

A. Violation of the Public Health Control Act

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 report to the head of a Si/Gun

Nevertheless, the Defendant, without reporting to the competent authority from April 26, 201 to July 22, 2017, provided one, four, four, and four, and four, toilets from “○○○○○”, and provided facilities and equipment, such as bedclothess, cooking facilities, and daily necessities, so that people who paid membership fees can sleep and stay therein, by receiving KRW 100,000,000 from many and unspecified persons, and annual fees.

B. Violation of the Act on the Regulation of Amusement Businesses Affecting Public Morals

No person who carries on the amusement business affecting the public morals, or any employee prescribed by Presidential Decree, shall have any person carry on the amusement business affecting the public morals, or mediate or provide such an act.

Nevertheless, the Defendant, while running a lodging business at the time and place indicated in the paragraph (a), created and posted promotional videos with pictures taken by clicking sexual side effects, recruited many unspecified men and women as members by exempting annual fees, and allowed accommodation at the above place, and allowed accommodation people, regardless of gender, to be exposed to all sexual organ, to do so.

Accordingly, the defendant had obscenity act at a place where the amusement business affecting the public morals is conducted.

2. Defendant and his defense counsel’s assertion

A. As stated in the facts charged, the Defendant provided facilities and equipment, such as bedclothess, cooking facilities, and daily necessities, so that persons who have paid membership fees receive KRW 100,000,000 from members who have joined the meeting of “○○○○○○” group, and KRW 240,000,000, as stated in the facts charged, can sleep and stay therein, and the Defendant did not report accommodation to the competent authorities.

B. However, in the instant building, the Defendant did not engage in a public health business, including accommodation business, or amusement business for commercial purposes. Therefore, the Defendant’s violation of the Public Health Control Act, premised on the Defendant’s accommodation business, etc. for commercial purposes, and the violation of the Act on the Regulation of Amusement Businesses

C. Even if the Defendant operated a lodging business which is an amusement business affecting the public morals for commercial purposes, the Defendant did not allow the Defendant to do obscene acts at a place where the business affecting the public morals was conducted.

3. Relevant legal principles

A. The continuous and repeated offering of services, such as facilities and equipment, which make customers able to sleep and stay for profit constitutes lodging business prescribed by Article 2(1)2 of the Public Health Control Act, insofar as it does not correspond to the exclusion provisions prescribed by law (see Supreme Court Decision 2013Do7947, Dec. 12, 2013).

B. The accommodation business under Article 2(1)2 of the Public Health Control Act under Article 2(4) of the Act on the Regulation of Amusement Businesses Affecting Public Morals constitutes the amusement business affecting public morals (Supreme Court Decision 2008Do3975 Decided August 21, 2008).

C. The purpose of profit-making is to obtain wide economic benefits (Supreme Court Decision 98Do2481 delivered on March 26, 199, etc.).

4. Determination

A. Facts of recognition

1) In around 2008, the Defendant created a budio (dudioist and persons pursuing physical life) club (hereinafter “instant club”) under the name of “○○○” (hereinafter “instant club”) and serves as the president until now.

2) The club members of this case are composed of annual members, regular members, and associate members, and the annual members pay 2.40,000 won per year after attending regular meetings from among those who become regular members after paying 10,000 won per year from among those who become regular members after obtaining approval as to whether they have joined regular meetings, and regular members pay 10,000 won per year from among those who have paid 10,000 won per year, and associate members are both regular members and regular members. Among the annual members, 4-5 persons are in charge of the duties of holding regular club meetings, managing the members, and managing the building of this case. The number of annual members of the club of this case reaches approximately 20 to 40.

3) From November 2007, the instant building was owned by the Defendant’s wife. From around 2007, the instant building was the second floor of the building, and there are several rooms with a bath room for each floor. There are vacant lots in front of the instant building, which is capable of conducting sports activities, such as Burga and Earton. The Defendant, from around 2008, performed rural bed and reported on the closure of business around April 22, 201 when doing so in the instant building, which was owned by the wife.

4) A regular member of the club of this case and a member of the club of this case may attend a regular meeting held in the building of this case three times a year, and a member of the club of this case may, except in special circumstances within one year, use the facilities and equipment with his family or branch after having contacted the defendant or the operating personnel in this case, with accommodation at the building of this case after having contacted the defendant or the operating personnel.

5) Members of the instant club held regular meetings or non-regular meetings in the instant building from April to October each year between April 2008 and October 2017 and performed activities such as eating, sports, day-to-day bathing, camping, etc. in the interior and outdoor air space of the instant building.

B. Determination

1) In the instant building, there are criminal investigation reports (in addition to the result of execution of the account tracking warrant), investigation reports (the result of analysis of management accounts such as annual membership fees), investigation reports (the result of the suspect’s account analysis) and each account transaction report attached to the above investigation report, as evidence showing that the Defendant carried on the public health business of lodging business, etc. and the amusement business affecting the public morals for profit. According to the above evidence, the following facts are recognized.

A) Regular members of the instant club and annual members deposited KRW 100,000, annual fee of KRW 240,000, or annual fee of KRW 20,000, or annual fee of the Defendant’s Nonghyup Bank by one of the Defendant’s Nonghyup Bank accounts (the “No. 1 omitted; hereinafter “instant membership fee payment account”).

나) 피고인은 이 사건 회비납부 계좌에 입금된 연회비 등의 돈 중 일부를 피고인이 개인적으로 사용하는 다른 농협은행 계좌들[마지막 네 자리가 ‘(번호 2 생략)’, ‘(번호 3 생략)’, ‘(번호 4 생략)’인 계좌이다. 이하 ‘피고인의 개인 계좌’라 한다]로 이체한 후 스쿨뱅킹 대금, 국민연금, 자동차세, 카드대금, 보험료, 전기료, 학원비, 식비, 휴대폰 요금, 주유비 등의 개인적인 용도로 사용하였다.

2) However, the burden of proving the facts charged in a criminal trial is to be borne by the prosecutor, and the conviction is to be based on evidence of probative value, which makes the judge not having any reasonable doubt as to whether the facts charged are true. Therefore, if there is no such evidence, even if there is suspicion of guilt against the defendant, it is inevitable to determine the defendant as the benefit of the defendant.

Considering the following circumstances acknowledged by the evidence duly adopted and examined by the court, it is insufficient to acknowledge that the aforementioned facts alone are sufficient to acknowledge that the Defendant had engaged in accommodation business for the purpose of acquiring economic benefits, i.e., for profit-making purposes, and there is no other evidence to acknowledge

A) Article 8 (Finance) of the articles of association of the club of this case provides that “All financial resources of ○○○○ shall be maintained and repaired on the website and Arabic (hereinafter “instant building”) with subscription fees, annual fees, management fees, and other support payments, and shall be managed and decided by posters (hereinafter “Defendants”).” Accordingly, the club of this case plans to use the club membership fees, annual fees, etc. deposited in the instant membership fee payment account only for the operation of the club of this case and for the management of the instant building.”

나) 피고인은 이 사건 회비납부 계좌의 잔고가 충분하지 않은 경우에 자신의 개인 자금으로 이 사건 동호회의 홈페이지 관리, 이 사건 건물의 유지·보수, 이 사건 동호회 모임 지원, 이 사건 건물에 비치할 생필품 및 파라솔 등의 설비 구입, 이 사건 건물 청소비 등 이 사건 동호회 운영 및 이 사건 건물 관리에 필요한 각종 비용을 선지출한 후, 회비납부 계좌에 연회비 등이 입금되어 잔고가 쌓이면 회비납부 계좌에 입금된 돈 중 피고인이 그동안 선지출한 금액 상당의 돈을 피고인의 개인 계좌로 다시 이체하였다(증거기록 제161 내지 168쪽, 피고인에 대한 검찰 피의자신문조서, 공소외인에 대한 검찰 진술조서 등 참조). 따라서 피고인이 회비납부 계좌에서 피고인의 개인 계좌로 이체한 돈은 피고인이 선지출한 금액을 동호회로부터 보전받은 것으로서 피고인 개인의 것이다. 이를 피고인이 스쿨뱅킹 대금 등 개인적인 용도로 사용하였다는 사정만으로는 피고인이 이 사건 회비납부 계좌로 연회비 등을 입금받아 경제적 이익을 취득하였다고 할 수 없다.

C) Of the money deposited in the instant membership fee payment account, the remainder, excluding the money transferred to the personal account to preserve the Defendant’s prior disbursement expenses, was used directly from the membership fee payment account as the heating apparatus repair expenses of the instant building, the property tax support for the instant building, the Seoul regular meeting expenses of the instant club, and the purchase for the water supply and cleaning of the instant building.

D) The Defendant received approval from the operating staff of the club upon notification of the details of annual fees, etc., including the annual fees, up to October of each year from the last regular meeting. In the event that the total revenue of the previous year is more than the expenditure of the previous year, the balance shall be treated as the assets of the club and then carried over to the next year, and where the expenditure exceeds the total revenue of the previous year (if the Defendant prior to the disbursement of the expenses necessary for the operation, etc. of the club with personal funds, then the shortage shall also be treated as the assets of the club and carried over to the following year. There is no evidence to prove that the Defendant acquired or acquired economic benefits in the process.

E) There is no other evidence to acknowledge that the annual members of the club of this case provided the Defendant with annual fees and admission fees and other economic benefits separate from the Defendant for accommodation in the instant building with his family members or branch members.

F) If a member of the club of this case does not pay annual fees, he cannot be accommodated in the instant building because he was not recognized as a member of the club of this case. If he paid annual fees, he can be accommodated in the instant building with his family members or branch members recognized as a member of the club of this case. Thus, there is a certain relationship between the payment of annual fees by the member and the permission for accommodation on the instant building. However, considering the aforementioned circumstances, even if the Defendant permitted accommodation on the instant building only with the paid member of the annual fees, such relationship alone cannot be readily concluded that the Defendant permitted accommodation upon receiving annual fees from the members for the purpose of acquiring economic benefits.

3) Ultimately, the evidence submitted by the prosecutor alone is insufficient to recognize that the Defendant engaged in accommodation business, etc. for the purpose of acquiring economic benefits, i.e., for profit-making. There is no other evidence to acknowledge this otherwise. Therefore, the Defendant’s violation of the Public Health Control Act and the Act on the Regulation of Amusement Businesses Affecting Public Morals does not constitute a crime of violation

5. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of facts constituting a crime, a judgment of innocence is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the defendant does not want to disclose the judgment of innocence, so the public announcement of the judgment of innocence is not ordered

Judges Ha Sung-woo