[1] The legal nature of the disposition of imposing the penalty surcharge by the Juvenile Protection Committee under Article 49 of the Juvenile Protection Act (=the act of discretionary discretion)

[2] The case holding that a disposition imposing a penalty surcharge under Article 40 [Attachment 6] of the Enforcement Decree of the Act on the Protection of Juveniles against the violation against the owner of a business who allowed six juveniles to enter a video room and watch harmful media

[1] In light of the provisions of Article 40 of the Enforcement Decree of the Juvenile Protection Act and Article 40 of [Attachment 6] and Article 51 of the same Act, it may be interpreted that if juveniles view harmful media products in violation of Article 17(1) of the same Act or enter harmful business establishments in violation of Article 24(2) of the same Act, it is necessary to impose a penalty surcharge of KRW 7 million and KRW 3 million. However, although Article 49(1) of the same Act of the same Act of the same parent corporation provides that "the person shall be ordered to pay a penalty surcharge of KRW 10,00,000 and KRW 3 million, the person shall be ordered to pay a penalty surcharge of KRW 10,000 and KRW 51 of the same Act, which are the penal provisions of the same act, only if so, the upper limit of a penalty surcharge that may be imposed on the basis of Article 49(2) of the same Act shall be determined within the scope of the violation. Therefore, the Juvenile Protection Committee shall be subject to the so-called discretionary act.

[2] The case holding that a disposition imposing a penalty surcharge under Article 40 [Attachment 6] of the Enforcement Decree of the Act on the Protection of Juveniles against the violation against the owner of a business who allowed six juveniles to enter a video room and watch harmful media was deviating from the scope of discretion

[1] Articles 10, 27(1), and 37(2) of the Constitution of the Republic of Korea; Articles 2, 7, 17(1), 24(2), 49(1) and (2), and 51 subparag. 7 of the former Juvenile Protection Act (Amended by Act No. 5817, Feb. 5, 199); Article 40 [Attachment Table 6] 3. and 9 of the Enforcement Decree of the Juvenile Protection Act; Article 27 of the Administrative Litigation Act / [2] Articles 10, 27(1) and 37(2) of the Constitution of the Republic of Korea; Article 2, 7, 17(1), and 49(2), and 51 subparag. 7 of the former Juvenile Protection Act (Amended by Act No. 5817, Feb. 5, 199); Article 40 of the Enforcement Decree of the Juvenile Protection Act (Amended by Act No. 5817, Feb. 5, 1999)

Plaintiff

Juvenile Protection Committee (Attorney Yellow-hwan, Counsel for the defendant-appellant)

1. The defendant's imposition of the penalty surcharge of KRW 10 million against the plaintiff on June 2, 1998 shall be revoked.

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Fact-finding;

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings as set forth in Gap evidence 3, Eul evidence 1, 2, and Eul evidence 3-1 to 10:

(1) The Plaintiff, a person who operated a video room at his domicile, had six juveniles under the age of 18 on February 12, 1998 enter the video room as a harmful business establishment, and had them view the video product’s “epictrb” that is not allowed to view.

(2) In accordance with the provisions of Article 49(1) and (2), Article 50 subparag. 1, Article 51 subparag. 7, Article 17(1), and Article 24(2) of the Juvenile Protection Act, Article 40 [Attachment 6] and Article 40 [Attachment 6] of the Enforcement Decree of the same Act, the Defendant imposed a penalty surcharge of KRW 3 million on the Plaintiff’s admission to a video product, KRW 7 million for the admission to a video product, and KRW 10 million for the total admission to a video product.

(3) Meanwhile, on March 14, 1998, the Plaintiff was subject to a penalty surcharge of KRW 17,50,000 as a substitute for a disposition of business politics by the head of Sungnam-si District Office, pursuant to Articles 12(1)8, 13(1), and 17(3), etc. of the former Music Records and Video Products Act.

2. The parties' assertion

As to the Defendant’s assertion that the instant disposition was lawful in accordance with the above grounds for disposition and relevant statutes, the Plaintiff asserts to the effect that the instant disposition is unfair because the amount of the penalty surcharge is too high, in light of the fact that many juveniles were forced to view video products almost half of the total amount of juveniles.

3. Relevant statutes;

Article 2 of the Juvenile Protection Act / [Definitions]

The definitions of terms used in this Act shall be as follows:

1. The term "juvenile" means any person under 18 years of age;

2. The term "media product" means a product falling under any of the subparagraphs of Article 7;

3. The term "media materials harmful to juveniles" means the materials falling under any of the following items:

(a) The media materials that the Juvenile Protection Committee has decided or confirmed as harmful to juveniles under the provisions of Articles 8 and 12; and

(b) Media materials which are resolved or decided by each examining authority under the proviso of Article 8 (1) as harmful to juveniles;

Article 7 (Scope of Media Materials)

The term "media product" in this Act means a product that falls under any of the following subparagraphs:

1. Sound records and video products as prescribed in the Sound Records and Video Products Act;

Article 17 (Prohibition of Sale, etc.)

(1) No media product harmful to juveniles shall be offered to juveniles for viewing.

Article 24 (Prohibition of Employment and Restriction on Access to Business Establishments Harmful to Juveniles)

(2) The owner or employee of a business establishment harmful to juveniles shall verify the age in the case of a business establishment harmful to juveniles and shall prohibit juveniles from entering the relevant business establishment.

Article 49 【Penalty Surcharge】

(1) The Juvenile Protection Committee may order a person who has acquired profits by committing an offense falling under any subparagraph of Article 50 and any subparagraph of Article 51 to pay a penalty surcharge not exceeding 10 million won under the conditions as prescribed by the Presidential Decree.

(2) The amount of penalty surcharge under paragraph (1) and other necessary matters shall be prescribed by Presidential Decree.

Article 50 (Penalty Provisions)

Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than three years or by a fine not exceeding 20 million won:

1. A person who violates the provisions of Article 17 (1) for profit;

Article 51 (Penalty Provisions)

Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than two years or by a fine not exceeding 10 million won:

7. A person who has allowed juveniles to enter harmful business places in violation of Article 24 (2);

Article 40 of the Enforcement Decree of the same Act [Criteria for Calculation of Penalty Surcharge]

The amount of penalty surcharge according to the category of offenses subject to the imposition of penalty surcharge under Article 49 (2) of the Act shall be as shown in attached Table 6.

[Attachment 6] Criteria for Disposition of Penalty in accordance with the Category of Offenses

3. Where he violates the duty of prohibition against viewing and offering harmful media products under the provisions of Article 17 (1) of the Act: Seven million won in the distribution-related businessman.

9. Where the duty not to enter and leave juveniles under Article 24 (2) of the Act is violated: Three million won;

4. Determination

(1) In light of the above provisions, in particular, Articles 40 and 51 of the Enforcement Decree of the Act on the Protection of Juveniles and 3. and 9. of the same Act, it may be interpreted that if a juvenile sees a harmful medium in violation of Article 17(1) of the same Act or a juvenile sees a harmful business establishment in violation of Article 24(2) of the same Act, it is necessary to impose a penalty surcharge of KRW 7 million and KRW 3 million on the harmful business establishment. However, Article 49(1) of the same Act of the same Act of the mother corporation provides that "the payment of a penalty surcharge of KRW 10,000 and KRW 10,000 can be ordered" and the above provision is in balance with Article 50 and Article 51 of the same Act of the same Act, which is the penal provision for the same act, the upper limit of a penalty surcharge that can be imposed pursuant to Article 49(2) of the same Act shall be determined to the extent of the violation and the act of the defendant's actual discretion.

In addition, this is more true because the provisions of Article 40 and [Attachment 6] of the Enforcement Decree of the same Act are contrary to the Constitution or are likely to be invalidated by deviating from the limits delegated by Article 49(2) of the same Act as the mother corporation. In other words, the provisions of Article 40 and [Attachment 6] of the Enforcement Decree of the same Act are in violation of Article 17(1) of the same Act, and those of Article 17(2) of the same Act are in violation of the same Act and those of Article 24(2) of the same Act are in violation of the same Act and those of Article 27(1) of the same Act and those of the same Act are in violation of the same Act and are in violation of the same Act and are in violation of Article 27(2) of the same Act and are in violation of the same Act and are in violation of the same Act and are in violation of Article 27(2) of the same Act.

(2) Therefore, in this case, whether the amount of the penalty surcharge imposed is appropriate in light of the relevant violation, it cannot be deemed that the Plaintiff’s act was less than that of allowing six juveniles to access the video room and view harmful media materials, but it is also difficult to view that the Plaintiff’s act belongs to the largest part of the same kind of violation. In addition, the Plaintiff already imposed the penalty surcharge of KRW 17,50,000 in lieu of the disposition of suspension of business in accordance with the relevant provisions of the former Sound Records and Video Products Act (the disposition of suspension of business in accordance with the former Sound Records and Video Products Act and the disposition of imposition of the penalty surcharge in accordance with the Juvenile Protection Act against the same violation cannot be deemed as an administrative disposition which overlaps with one another, but in determining the amount of the penalty surcharge, the above disposition of suspension of business should be taken into account. In particular, according to the proviso of Article 49(1) of the Juvenile Protection Act which was amended by Act No. 5817, Feb. 5, 199; in light of the proviso of the same Article 49(2).

5. Conclusion

Therefore, the disposition of this case is unlawful and revoked, and the plaintiff's claim of this case is justified and accepted.

Judges Park Jae-sik (Presiding Judge)