(영문) 전주지방법원 2016.5.19.선고 2015노1324 판결

Although toilets entered in the facts charged by the Defendant (hereinafter “the toilet of this case”) fall under “public toilets, etc. under subparagraphs 1 through 5 of Article 2 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes” under Article 12 of the Act on Public Toilets, etc., the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment, on the grounds that the toilet of this case does not fall under those cases.

2. Determination

A. Summary of the facts charged

On July 26, 2014: around 10, at around 10, the Defendant was in front of a public toilet near B located in 000 as the Seojin-gu Landscape Team at the Jeonjin-gu, Seoul, the Defendant: (a) viewed the victim C (26 years of age, female) as being in a toilet for the purpose of viewing melting the public toilets; (b) entered the toilet through an open toilet door for the purpose of meeting his own sexual desire; and (c) opened the door in the space between the partitions and the partitions for the purpose of meeting the victim’s sexual desire. Ultimately, the Defendant invadedd on the public toilet for the purpose of meeting his sexual desire.

B. Determination

1) According to Article 2 of the Public Toilets, etc. Act, “public toilets, etc.” refer to public toilets (the State, local governments, corporations, or individuals installed for public use), ② public toilets (the toilets opened for public use among toilets installed in the facilities of public institutions, or toilets designated by the Governor of a Special Self-Governing Province, the head of a Si, Gun, or the head of a Gu pursuant to Article 9(2)), ③ mobile toilets (the toilets installed for temporary use of large gatherings, etc.), ④ pay toilets (small-scale toilets installed in an area where it is difficult to install public toilets), ⑤ Pay toilets (the toilet rooms installed in which the installer and the local government can collect user fees from the users). In addition, under the Act on Public Toilets, the State and local governments shall be designated to have the public toilets installed and managed in order to improve convenience and sanitation standards for the public, and the standards for installation and management of public toilets shall be prescribed in Article 9(2) of the same Act, and the area of such toilets shall be specifically prescribed by the standards for installation and management.

2) In light of these provisions, the judgment of the court below which acquitted the Defendant on the ground that the instant toilet does not constitute “public toilets, etc. as defined in Article 2 subparag. 1 through 5 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes” on the ground that the instant toilet is installed in the middle of stairs that are going to the second floor of the building outside B, and the instant toilet is opened and closed in line with the B business hours, and is provided to an unspecified number of customers using B. In full view of the following circumstances acknowledged by the evidence duly adopted and taken place by the court below, namely, ① the current status of public toilets, open toilets, movable toilets, portable toilets, and simplified storage rooms located in the Jeonjin-jin-gu, Seoul Special Metropolitan City, which are attached to the fact-finding reply to the fact-finding report on the Jeonju market, and there is no illegality as alleged by the prosecutor, and there is no violation of law as alleged by the prosecutor.

3. Conclusion

Therefore, since the prosecutor's appeal is without merit, it is decided as per Disposition by the decision of dismissal pursuant to Article 364 (4) of the Criminal Procedure Act.