[1] The meaning of "juvenile sexual intercourse accommodation" under Article 26-2 subparagraph 8 of the Juvenile Protection Act

[2] Whether Article 26-2 subparagraph 8 of the Juvenile Protection Act violates the principle of clarity and the principle of no punishment without law (negative)

[3] Whether Article 26-2 subparag. 8 of the Juvenile Protection Act violates the principle of prohibition of excessive restriction (negative)

[1] Article 26-2 subparag. 8 of the Juvenile Protection Act provides that no person shall engage in a business which disturbs public morals, such as making the juveniles be accommodated in the same sex, or providing a place for such business". Considering that the legislative purport of the above Act is to protect the juveniles from various harmful acts so that the juveniles grow into a healthy person, "the family of sexual intercourse" stipulated in the above Act is sufficient for one of the male and female juveniles, and it does not necessarily require both male and female juveniles to be juveniles.

[2] The meaning of "act of disturbing public morals or providing a place for such purpose" under Article 26-2 subparagraph 8 of the Juvenile Protection Act shall be deemed to mean "act of causing juveniles to grow into a person with sound character or providing a place for such purpose" in light of the legislative purport, legislative history, and regulatory form of the Juvenile Protection Act, and the specific example is "act of causing juveniles to have sexual intercourse or providing a place for such purpose" as stated in the above provision, which can be determined through sound common sense and ordinary legal sentiment, and in specific cases, the contents of the norm can be determined through the supplementary interpretation of the judge, and it does not go against the principle of clarity and thus, it does not go against the principle of substantial principle of no punishment without law.

[3] In light of the legitimacy of the legislative purpose of the Juvenile Protection Act, the legislative purport of Article 26-2 subparag. 8 of the Juvenile Protection Act, which prohibits juveniles from running their business with sexual intercourses, the degree of disadvantage suffered by lodging businessmen due to the above legal provision, and the degree of infringement of the juvenile’s privacy and the public interest contributed to the youth’s growth into a healthy personality body, etc., the above legal provision cannot be deemed to excessively restrict the freedom of occupation and the protection of the juvenile’s privacy by violating the above excessive prohibition principle, and thus, it cannot be deemed that the above legal provision excessively limits the freedom of occupation of lodging businessmen and the protection of the juvenile’s privacy.

[1] Article 26-2 subparag. 8 and Article 50 subparag. 4 of the Juvenile Protection Act / [2] Article 26-2 subparag. 8 of the Juvenile Protection Act, Article 12 of the Constitution / [3] Article 26-2 subparag. 8 of the Juvenile Protection Act, Article 37(2) of the Constitution

[1] Supreme Court Decision 2001Do3295 decided Aug. 21, 2001 (Gong2001Ha, 2136)

Defendant

Defendant

Attorney Seo-sik

Seoul District Court Decision 2003No318 Delivered on September 24, 2003

The appeal is dismissed.

1. Examining the adopted evidence of the first instance judgment maintained by the lower court in light of the record, it can be sufficiently recognized that Nonindicted 1, an employee of the Defendant, had Nonindicted 2, a juvenile, lodge together with Nonindicted 3, to the lodging facility operated by the Defendant. Thus, the lower court did not err by misapprehending the rules of evidence or violating the principle of evidence judgment, as alleged in the grounds of appeal.

2. Article 26-2 subparag. 8 of the Juvenile Protection Act provides that no person shall conduct a business which disturbs public morals, such as making juveniles lived with sexual intercourse, or providing a place for such business". Considering that the legislative purport of the above Act is to protect juveniles from various harmful acts so that juveniles can grow into a sound character, the phrase “live sexual intercourse” under the above Act is sufficient for both men and women to protect juveniles, and both men and women are not in need of being juveniles (see Supreme Court Decision 2001Do3295, Aug. 21, 2001). The meaning of “act of doing business which disturbs public morals or providing a place for such purpose” refers to an act of providing a place to grow into a sound character or to provide a place for such purpose through a sound interpretation of the Act, and the meaning and meaning of “an act of providing a place for such purpose” as stated in the above provision can be seen as an “act of providing a sound sexual intercourse or a sound interpretation of the Act.”

In this regard, the court below's decision that Article 26-2 subparagraph 8 of the Juvenile Protection Act does not go against the principle of clarity and that it does not go against the principle of no punishment without the law is justified and there is no violation of the law of no punishment without the law, as alleged in the ground of appeal.

3. In light of the legitimacy of the legislative purpose of the Juvenile Protection Act that enables juveniles to grow into healthy personality by protecting and aiding juveniles from various harmful environments, the legislative purport of Article 26-2 subparag. 8 of the Juvenile Protection Act that prohibits juveniles from running their e-mail accommodation business, the degree of disadvantage suffered by lodging businessmen due to the above legal provision, and the degree of infringement of juveniles’ private life and the public interest contributed to the growth of juveniles into healthy personality, etc., the above legal provision cannot be deemed to excessively restrict the freedom of choice of lodging businessmen and the protection of juveniles’ private life by violating the above excessive prohibition principle.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the principle of excessive prohibition, as otherwise alleged in the ground of appeal.

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)