[edit] Supreme Court Full Bench Decision 98Do3665 delivered on November 16, 2000 [Violation of the School Health Act]
【Main Issues】
[1] Whether activities (operation) of maintaining and operating facilities by a person who previously established and operated a computer game room without closing or moving such facilities till the expiration of the grace period fall within the meaning of "facilities and activities" under Paragraph 1 of Article 6 of the former School Health Act (affirmative)
[2] Whether prosecution of a person who had previously established and operated a computer game room and maintains and operates facilities (operating) without moving or closing such facilities until the expiration of the grace period violates the provisions of Paragraph 2 of Article 13 and Paragraph 1 of Article 23 of the Constitution prohibiting the deprivation of property rights, such as operating rights, by means of a retroactive legislation (negative) and whether Addenda 2 of the Enforcement Decree of the former School Health Act violates the principle of the prohibition on comprehensive delegation under Article 75 of the Constitution (negative)
[3] Whether regulations of Article 19 and Paragraph 1 of Article 6 of the former School Health Act and item 1 of Article 4-2 of the former Enforcement Decree of the School Health Act violate the principle of nulla poena sine lege in the criminal law under Article 12 of the Constitution in that they are ambiguous (negative)
【Summary of Decision】
[1] [Majority Opinion] Activities prohibited by Paragraph 1 of Article 6 of the former School Health Act (which was amended by Law No. 5618 of December 31, 1998) should be interpreted as 'operating activities in each facility enumerated from Paragraphs 1 through 14,' even including Paragraphs 2 through 14 which only refer to facilities. The reasons to support this interpretation are as follows: First, the prior paragraph of Paragraph 1 of Article 6 of the former School Health Act refers to not "activities or facilities," but "activities and facilities," which eventually combines "facilities" with "activities" though it mentions "activities" first. Second, the purpose of the School Health Act is to promote the efficiency of school study by enacting regulations necessary for the protection of health, sanitation and environment related to study in school and, therefore, without the operating activities of each facility, the existence of each facility itself will not cause a harmful environment related to school study such as negligence of academic duties. Additionally, while Article 4-2 of the former Enforcement Decree of the School Health Act (which was amended by Presidential Decree No. 15607 of January 16, 1998) stipulates activities and facilities, it says that "pursuant to item 14 of Paragraph 1 of Article 6 of the School Health Act, 'facilities' decreed by the Enforcement Decree are as follows," which raises a question that the Presidential Decree was purported to intentionally narrow the scope of applicability of Act by using 'facilities' instead of 'activities and facilities.' However, because the delegation provisions, the prior paragraph and item 14 of Paragraph 1 of Article 6 of the School Health Act, announce beforehand that they delegate to the Enforcement Decree of the same Act the determination of the scope of 'activities and facilities' prescribed by the Act, the intent of the delegation provisions must be to delegate only the possibility of reducing the scope of facilities, not to delegate the choice between activities or facilities. Moreover, Article 4-2 of the Enforcement Decree of the School Health Act takes the form of enumerating names of facilities just as items 2 through 13 of Paragraph 1 of Article 6 of the same Act which are interpreted as stipulating 'activities and facilities' do, and therefore, Article 4-2 of the Enforcement Decree of the School Health Act should be interpreted as prescribing operating activities in those facilities just as items 2 through 13 of Paragraph 1 of Article 6 of the same Act are interpreted.
[Dissenting Opinion] Item 14 of Paragraph 1 of Article 6 and Article 19 of the former School Health Act (which was amended by Law No. 5618 of December 31, 1998) and item 1 of Article 4-2 of the Enforcement Decree of the same Act (which was amended by Presidential Decree No. 15607 of January 16, 1998) have been interpreted as prohibiting only 'activities to establish facilities' of a new computer game room since item 1 of Article 4-2 of the Enforcement Decree of the same Act was amended and became effective on December 31, 1990 and, therefore, 'operating activities in the facilities' of the already established computer game room cannot be seen as prohibited under Paragraph 1 of Article 6 of the same Act. Addenda to the Enforcement Decree of the same Act attempts to achieve the purposes of the law by limiting activities to continuously operating existing facilities while imposing a duty to transfer or close the above prohibited 'facilities' until a fixed date. A violation of a duty to transfer or close the existing facilities under the Addenda, however, cannot be interpreted as a violation of Paragraph 1 of Article 6 of the same Act or cannot be interpreted as being within the scope of prosecution regulations prescribed by Article 19 of the same Act. With respect to the phrases or the structure and the form of the law, statutes of the criminal law in dictating what particular activities constitute crimes or what punishment shall be imposed should be unambiguous and clear. Inference or broad interpretation of the statutes should not be permitted and the statutes should be construed strictly. Each item of Article 4-2 of the Enforcement Decree of the same Act delegated by items 2 through 13 and item 14 of Paragraph 1 of Article 6, stipulates 'facilities' only as prohibited and, therefore, it is obvious that 'activities' are not prohibited. A violation of prohibited activities that the above 'facilities' of each item stipulates refers to activities to actively establish such facilities (establishing activities) rather than activities to passively maintain, use, and operate the existing facilities. If there is a need for a strict regulation by imposing punishment with regards to the operating activities using the facilities in the cleanup zone, the statutes prohibiting such operating activities should be enacted in order to achieve such a purpose and, therefore, broadening the scope of punishment for reasons of interpreting the purpose of the legislature where none of the statutes indicate such, is not an appropriate approach in violation of the principle of nulla poena sine lege and the principle of strict interpretation in the criminal law.
[2] item 1 of Article 4-2 of the former Enforcement Decree of the School Health Act amended by Presidential Decree No. 13214 of December 31, 1990 (which was amended by Presidential Decree No. 15607 of January 16, 1998) has prohibited establishing and operating a computer game room within the cleanup zone and unless the relevant Superintendent of the Office of Education authorizes the existing facilities at the time of enforcing such a decree, those facilities are required to transfer or close within a fixed grace period. Since a person who was already permitted to operate a computer game room is prohibited from operating such a facility after such a grace period has expired, as far as a person who operated the existing facilities at the time of enforcing such decree is concerned, he should be punished for the operating activities at the computer game room after the grace period expired for the stability of the legal system and the protection of reliability, and he should not be punished for the operating activities at the computer game room during the grace period or for violation of a transfer or closing order. Therefore, to punish the activity in this case cannot be considered to violate the provisions of Paragraph 2 of Article 13 and Paragraph 1 of Article 23 of the Constitution prohibiting prosecution and foreclosure of property such as a right to operate facilities by the retroactive legislation. Furthermore, Addenda to the Enforcement Decree of the same Act which is not a basis of regulation for punishment applicable to the facts in this case cannot be seen a provision violating the principle of prohibiting comprehensive delegation under Article 75 of the Constitution.
[3] If there is a reasonable criterion of interpretation limiting or formulating the forms of activities corresponding to the elements for the punishment regulations according to the ordinary people's understanding and judgment after examining the legislative purpose, the entire context, and the structure of the punishment regulations, it is not in violation of the principle of clearness according to the principle of nulla poena sine lege. The laws applicable to the facts in this case, such as Article 19 and Paragraph 1 of Article 6 of the former School Health Act and item 1 of Article 4-2 of the former Enforcement Decree of the School Health Act (which was amended by Presidential Decree No. 15607 of January 16, 1998), have a reasonable limit on the criterion of interpreting prohibited 'activities and facilities' and are unambiguous and, accordingly, it does not violate the principle of nulla poena sine lege under Article 12 of the Constitution.
【Reference Provisions】 [1] Paragraph 1 of Article 6, Article 19, and Article 20 of the former School Health Act (which was amended by Law No. 5618 of December 31, 1998), Article 4-2 of the former Enforcement Decree of the School Health Act (which was amended by Presidential Decree No. 15607 of January 16, 1998) and Paragraph 2 of the Addenda of the same Decree (December 31, 1990) / [2] Paragraph 1 of Article 6 and Article 19 of the former School Health Act (which was amended by Law No. 5618 of December 31, 1998), Article 4-2 of the former Enforcement Decree of the School Health Act (which was amended by Presidential Decree No. 15607 of January 16, 1998) and Paragraph 2 of the Addenda of the same Decree (December 31, 1990), Paragraph 2 of Article 13, Paragraph 1 of Article 23 and Article 75 of the Constitution / [3] Paragraph 1 of Article 6 and Article 19 of the former School Health Act (which was amended by Law No. 5618 of December 31, 1998), Article 4-2 of the former Enforcement Decree of the School Health Act (which was amended by Presidential Decree No. 15607 of January 16, 1998) and Paragraph 2 of the Addenda of the same Decree (December 31, 1990), Article 12 of the Constitution
Article 6 of the former School Health Act (amended by Law No. 5618 of December 31, 1998) (Prohibited Activities, etc. in the Cleanup Zone) (1) No one shall conduct any activities or establish any facilities falling under any of the following items, in the school environmental sanitation and cleanup zone; provided, that from among the activities and facilities as referred to in items 2, 4, 8, and 10 through 14 of Article 6 in the zone prescribed by the Presidential Decree, the activities and facilities which the Superintendent of the Office of Education of the Cities and Provinces Committee or a person delegated by the Superintendent of the Office of Education deems, upon deliberation of the Committee for School Environmental Sanitization and Cleanup, harmless to study, health and sanitation in a school via the deliberation of the school environment and sanitation cleanup committee, shall be excluded.
1. Activities and facilities which are harmful to study and school health and sanitation by exceeding the permissible pollutant discharge standards under Article 14 of the Environment Conservation Act
2. A theater, a factory and a storing place of firearms and explosives, a factory and a storing place of compressed gas and liquefied petroleum gas
3. A slaughter house and a crematorium
4. A gathering place of garbage
5. A reclamation place of garbage, garbage disposal facilities, and garbage terminal treatment facilities, and a night-soil incinerator
6. Wastewater treatment facilities, and an incinerator
7. A hospital for contagious diseases, an isolation ward for contagious diseases, an isolation building
8. A sanatorium or a clinic for contagious diseases
9. A livestock market
10. A restaurant, various merry-making places, and a temporary liquor store
11. A hotel, a motel, and an inn
12. Resting place of Public baths
13. A speculative act place and a horse race track
14. Other activities and facilities similar to those as referred to in items 1 through 13, the activities and facilities harmful to public morals and customs among the activities and facilities prescribed by the Presidential Decree
(2)~(4) <omitted>
Article 19 of the former School Health Act (amended by Law No. 5618 of December 31, 1998) (Penal Provisions) A person who violates the provisions of Paragraph 1 of Article 6 shall be punished by imprisonment for not more than one year or by a fine not exceeding Won 10 million.
Article 20 of the former School Health Act (amended by Law No. 5618 of December 31, 1998) (Enforcement Decree) All the matters necessary for the enforcement of the Act shall be prescribed by the Presidential Decree.
Article 4 of the former Enforcement Decree of the School Health Act (which was amended by Presidential Decree No. 15607 of January 16, 1998) (Other Prohibited Facilities in Cleanup Zone) The facilities prescribed by the Presidential Decree under the provisions item 14 of Paragraph 1 of Article 6 of the Act, shall fall under any of the following items; provided, that in the case of environmental sanitation and cleanup zones of university, educational college, community college, air and correspondence university, open university, and various Schools and Kindergartens, the facilities as referred to in items 1, 3, 5 and 6 shall be excluded:
1. A computer game room
2. Steam bath among special public baths
3. Cartoon rooms
4. Dance schools and dancing halls under Paragraph 5 of Article 2 of Act on the Regulation of Amusement Businesses Affecting Public Morals
5. Facilities for the singing practice room business under Paragraph 5 of Article 2 of Enforcement Decree of the Act on the Regulation of Amusement Business Affecting Public Morals
6. Cigarette vending machine.
Article 2 of Addenda to the former Enforcement Decree of the School Health Act (which was amended by Presidential Decree No. 15607 of January 16, 1998) (Transitional Measures concerning Existing facilities) Facilities installed as conforming to the provisions of the relevant Acts and subordinate statutes and which fall under the amended provisions of items 1 through 14 of Paragraph 1 of Article 6 of the Act shall move or close no later than December 31, 1995; provided, that this shall not apply to the facilities which the Superintendent of the Office of Education or any person designated by the Superintendent has recognized no later than December 31, 1991.
Article 13 of the Constitution
(1) <omitted>
(2) No restrictions shall be imposed upon the political rights of any citizen, nor shall any person be deprived of property rights by means of retroactive legislation.
(3) <omitted>
Article 23 of the Constitution
(1) The right of property of all citizens shall be guaranteed. The contents and limitations thereof shall be determined by Act.
(2)~(3) <omitted>
Article 75 of the Constitution
The President may issue presidential decrees concerning matters delegated to him by Act with the scope specifically defined and also matters necessary to enforce Acts.
Article 12 of the Constitution
(1) All citizens shall enjoy personal liberty. No person shall be arrested, detained, searched, seized or interrogated except as provided by Act. No person shall be punished, placed under preventive restrictions or subject to involuntary labor except as provided by Act and through lawful procedures.
(2) No citizens shall be tortured or be compelled to testify against himself in criminal cases.
(3) Warrants issued by a judge through due procedures upon the request of a prosecutor shall be presented in case of arrest, detention, seizure or search; provided, that in a case where a criminal suspect is an apprehended flagrante delicto, or where there is danger that a person suspected of committing a crime punishable by imprisonment of three years or more may escape or destroy evidence, investigative authorities may request an ex post facto warrant.
(4) Any person who is arrested or detained shall have the right to prompt assistance of counsel. When a criminal defendant is unable to secure counsel by his own efforts, the State shall assign counsel for the defendant as prescribed by Act.
(5) No person shall be arrested or detained without being informed of the reason therefor and of his right to assistance of counsel. The family, etc., as designated by Act, of a person arrested or detained shall be notified without delay of the reason for and the time and place of the arrest or detention.
(6) Any person who is arrested or detained, shall have the right to request the court to review the legality of the arrest or detention.
(7) In a case where a confession is deemed to have been made against a defendant's will due to torture, violence, intimidation, unduly prolonged arrest, deceit or etc., or in a case where a confession is the only evidence against a defendant in a formal trial, such a confession shall not be admitted as evidence of guilt, nor shall a defendant be punished by reason of such a confession.
【Reference Cases】 [1] Supreme Court Decision 98Do2962 delivered on November 13, 1998 (Gong1998Ha, 1919) (changed) / [2] Constitutional Court Decision 98Hunma480, 486 delivered on July 22, 1999 (Hungong37, 109) / [3] Supreme Court Full Bench Decision 97do2231 delivered on June 18, 1998 (Gong1998Ha, 1936), Supreme Court Decision 99Do2309 delivered on October 12, 1999 (Gong1999Ha, 2379)
【Defendant】 Defendant
【Appellant】 Defendant
【Defense Counsel】 Attorney Do Seung-hwan
【Court of First Instance】 Cheju District Court Judgment 98Godan81 delivered on June 23, 1998
【Court of Second Instance】 Cheju District Court Judgment 98No264 delivered on October 14, 1998
【Disposition】 The appeal shall be dismissed.
【Reasoning】 1. On the Elements of a Crime
A. Article 19 of the former School Health Act (amended by Act No. 5618 of December 31, 1998) that purports to improve the efficiency of school education by protecting student's health and regulating matters necessary for school environmental sanitation and cleanup, stipulates that a person in violation of Paragraph 1 of Article 6 of that Act shall be punished.
While Paragraph 1 of Article 6 of that Act states "no one shall conduct any activities or establish any facilities falling under any of the following items, in the school environmental sanitation and cleanup zone," item 1 regulates 'activities and facilities in violation of Article 14 of the Environment Conservation Act,' and items 2 through 13 enumerate only the names of around thirty facilities such as 'a theater, a hotel, and a speculative act place,' rather than enumerating prohibited activities. Also, item 14 regulates 'other activities and facilities similar to those as referred to in items 1 through 13, the activities and facilities harmful to public morals and customs among the activities and facilities prescribed by Presidential Decree,' and while Article 4-2 of the Enforcement Decree of that Act (which was amended by Presidential Decree No. 15607 of January 16, 1998) regulates 'the facilities prescribed by the Presidential Decree under the provision item 14 of Paragraph 1 of Article 6 of the Act, shall fall under any of the following items,' it only enumerates the names of the facilities from item 1 of 'a computer game room' to item 6, instead of enumerating prohibited activities.
B. In such a structure of the statutes, activities prohibited by Paragraph 1 of Article 6 of that Act should be interpreted as 'operating activities in each facility enumerated from Paragraph 1 to Paragraph 14,' even including Paragraphs from 2 to 14 which only refer to facilities.
The reason is that the prior paragraph of Paragraph 1 of Article 6 of that Act refers to not 'activities or facilities,' but 'activities and facilities,' which eventually combines 'facilities' with 'activities' though it mentions 'activities' first, and the purpose of that Act is to improve the efficiency of school study by enacting regulations necessary for protection of health, sanitation and environment related to study in school and, therefore, without operating activities of each facility, the existence of each facility itself will not cause a harmful environment related to school study such as negligence of academic duties.
In addition, besides using the phrase, 'activities and facilities' in the main sentence, Paragraph 1 of Article 6 of that Act uses 'activities and facilities' in the proviso by repeating that provided, that in the zones announced by the Presidential Decree, among activities and facilities under item 2, 4, 8 and items 10 through 14 and therefore each item enumerating only activities and facilities is treated in the same way as item 1 regulating prohibited activities and facilities and in this regard justification of the above interpretation is confirmed.
And, while Article 4-2 of the former Enforcement Decree of the School Health Act (which was amended by Presidential Decree No. 15607 of January 16, 1998) stipulates 'activities and facilities,' it says that "pursuant to item 14 of Paragraph 1 of Article 6 of the School Health Act, 'facilities' decreed by the Presidential Decree are as follows," which phrase raises a question that the Presidential Decree was purported to intentionally narrow the scope of applicability of Act by using 'facilities' instead of 'activities and facilities.' However, because the delegation provisions, the prior paragraph and item 14 of Paragraph 1 of Article 6 of the School Health Act, announce beforehand that they delegates to the Enforcement Decree of the same Act the determination of the scope of activities and facilities prescribed by the Act, the intent of the delegation provisions must be to delegate only the possibility of reducing the scope of facilities, not to delegate the choice between activities or facilities. Moreover, Article 4-2 of the Enforcement Decree of the School Health Act takes the form of enumerating names of facilities just as items 2 through 13 of Paragraph 1 of Article 6 of the same Act which are interpreted as stipulating activities and facilities do, and therefore, Article 4-2 of the Enforcement Decree of the School Health Act should be interpreted as prescribing operating activities in those facilities just as items 2 through 13 of Paragraph 1 of Article 6 of the same Act are interpreted.
Therefore, although items 2 through 13 of Paragraph 1 of Article 6 of that Act and each item of Article 4-2 of the Presidential Decree, an acceptance of the delegation regulation of item 14 of that Act, enumerate only the names of the facilities, but considering that item and the entire context of that Act or the structure, items 1 through 14 prohibit 'operating activities according to the usage of the facilities by purchasing or leasing each facility which was already established by other persons as well as 'operating activities in those facilities after personally establishing each facility.'
C. Furthermore, a person who had operated such facilities before the enforcement of that Act is conferred a grace period before the application of punishment under Article 20 of that Act and Article 2 of the Addenda of that Act, and as a result, that person is prohibited from operating after December 31, 1995, which is a grace period for transfer or closing, and therefore, if a person who had operated that facility before that Act was enforced continues the operating activity after that grace period has expired, he is punished not for an omission in violation of an order of transfer or closing under Article 2 of the Addenda of that Act, but for committing the prohibited operating activity at that facility after that Act was enforced and a grace period has expired.
D. Furthermore, Supreme Court Decision 98Do2962 delivered on November 13, 1998, which ruled with the different opinion from that of this Court as to the elements of the crime violating the Article 19 of that Act, shall be overruled to the extent of being inconsistent with this Judgment.
2. On the Violation of the Constitution
A. Item 1 of Article 4-2 of the former Enforcement Decree of the School Health Act amended by Presidential Decree No. 13214 of December 31, 1990 has prohibited establishing and operating a computer game room within the cleanup zone and unless the relevant Superintendent of the Office of Education authorizes the existing facilities at the time of enforcing such a decree, those facilities are required to transfer or close within a fixed grace period. Since a person who was already permitted to operate a computer game room is prohibited from operating such a facility after such a grace period has expired, as far as a person who operated the existing facilities at the time of enforcing such decree is concerned, he should be punished for the operating activities at the computer game room after the grace period expired for the stability of the legal system and the protection of reliability, and he should not be punished for the operating activities at the computer game room during the grace period or for violation of a transfer or closing order. Therefore, to punish the activity in this case cannot be considered to violate Paragraph 2 of Article 13 and Paragraph 1 of Article 23 of the Constitution prohibiting punishment and foreclosure of property such as a right to operate facilities by the retroactive legislation. Furthermore, Addenda to the Enforcement Decree of the same Act which is not a basis of regulation for punishment applicable to the facts in this case cannot be seen a provision violating the principle of prohibiting comprehensive delegation under Article 75 of the Constitution. (See Constitutional Court Decision 98Hunma 480, 486 delivered on July 22, 1999.)
B. In addition, if there is a reasonable criterion of interpretation limiting or formulating the forms of activities corresponding to the elements for the punishment regulations according to ordinary people's understanding and judgment after examining the legislative purpose, the entire context, and the structure of the punishment regulations, it is not in violation of the principle of clearness according to the principle of nulla poena sine lege. (See Supreme Court Decision 97Do2231 delivered on June 18, 1998, Supreme Court Decision 99Do2309 delivered on October 12, 1999.) Laws applicable to the facts in this case such as Article 19 and Paragraph 1 of Article 6 of the former School Health Act and item 1 of Article 4-2 of the former Enforcement Decree of the School Health Act have a reasonable limit on the criterion of interpreting prohibited activities and facilities and are unambiguous and, accordingly, it does not violate the principle of nulla poena sine lege under Article 12 of the Constitution.
3. Conclusion
The main fact of the charge in this case that the operating activity at a computer game room prior to the enforcement of that Act violates Article 19 and item 14 of Paragraph 1 of Article 6 of that Act and item 1 of Article 4-2 of the Enforcement Decree of that Act lies in the operating activity at the facility which was prohibited because the grace period to transfer or close has expired after the enforcement of the Act. Therefore, in the same perspectives, the decision of the court of first instance to the defendant's guilt regarding the facts charged is not in error, and as far as grounds for appeal are concerned, there are no reversible errors in matters of law regarding requirements constituting a crime or the Constitution.
4. The Dissenting Opinion of Justice Song Jin-hun and Son Ji-yol is as follows:
A. The majority opinion insists that Paragraph 1 of Article 6 of that Act should be interpreted as prohibiting the operating activities in those facilities rather than prohibiting the establishment of such facilities just as items 2 through 13 and item 14 of Article 4-2 of the Enforcement Decree of that Act referring to only the names of the facilities without referring to the activities are interpreted and, therefore, the majority opinion concludes that this Court's Decision 98Do2962 delivered on November 13, 1998 in violation of such interpretation should be reversed.
However, we cannot agree with the majority opinion because the majority opinion must have erred in the legal reasoning regarding Paragraph 1 of Article 6 of that Act and Article 4-2 of the Enforcement Decree of that Act and, therefore, we submit the following dissenting opinion.
The Articles applied in this case, item 14 of Paragraph 1 of Article 6 and Article 19 of the former School Health Act and item 1 of Article 4-2 of the Enforcement Decree of the same Act have been interpreted as prohibiting only 'activities to establish facilities' of a new computer game room since item 1 of Article 4-2 of the Enforcement Decree of the same Act was amended and became effective on December 31, 1990 and, therefore, 'operating activities in the facilities' of the already established computer game room cannot be seen as prohibited under Paragraph 1 of Article 6 of the same Act. Addenda to the Enforcement Decree of the same Act attempts to achieve the purposes of the law by limiting activities to continuously operating the existing facilities while imposing a duty to transfer or close the above prohibited 'facilities' until a fixed date. A violation of a duty to transfer or close the existing facilities under the Addenda, however, cannot be interpreted as a violation of Paragraph 1 of Article 6 of the same Act or cannot be interpreted as being within the scope of punishment regulations prescribed by Article 19 of the same Act.
B. The reasons are as follows.
(1) Paragraph 1 of Article 6 of that Act regulates activities and facilities as prohibited in the cleanup zone, but item 1 of that Act only regulates 'activities and facilities which are harmful to study and school health and sanitation by exceeding the permissible pollutant discharge standards under Article 14 of the Environment Conservation Act' and items 2 through 13 enumerate the names of the facilities such as a theater or a hotel. Also, while Article 4-2 of the Enforcement Decree delegated by item 14 of that Act says 'the facilities prescribed by the Presidential Decree under the provisions item 14 of Paragraph 1 of Article 6 of the Act, shall fall under any of the following items,' items 1 through 6 of the Enforcement Decree regulates a computer game room.
With respect to the phrases or the structure and the form of the law, statutes of the criminal law in particular dictating what activities constitute crimes or what punishment shall be imposed should be unambiguous and clear. Inference or broad interpretation of the statutes should not be permitted and the statutes should be construed strictly. Each item of Paragraph 2 of Article 4 of the Enforcement Decree of the same Act delegated by items 2 through 13 and item 14 of Paragraph 1 of Article 6, stipulates 'facilities' only as prohibited and, therefore, it is obvious that 'activities' are not prohibited.
(2) Interpretation of phrases of statutes, particularly interpretation of criminal statutes should be based on the common meaning of the phrases according to 'understanding and judgment of ordinary people qualified to make an appropriate judgment.' The majority opinion does not divide activities and facilities of Paragraph 1 of Article 6 of the Act into 'activities' and 'facilities' and rather interprets it as the equivalent of one word and, thus, seems to interpret it as meaning 'operating activities in the facilities,' but in consideration of the common meaning of 'activities and facilities' we can hardly agree with such an interpretation. If 'activities' and 'facilities' are divided and interpreted according to the common understanding, first in case of 'facilities,' a dictionary meaning of 'to do the facilities' is 'to set up facilities and equipment,' not meaning a person owns and operates the facilities and equipment and secondly, in case of 'activities,' 'activities corresponding to the certain facilities (for example, a computer game room)' just as the statutes regulate, are grammatically wrong and ordinary people will not express 'operating activities in a computer game room' as 'activities corresponding to a computer game room.' Additionally, following the logic of the majority opinion, if Paragraph 1 of Article 6, have stipulated 'activities' corresponding to each item 1, instead of 'activities and facilities' corresponding to each item 1, it must have been interpreted the same as the current statute is interpreted, and, therefore, the question of reasons for stipulating 'activities' and 'facilities' side by side in the current statute should be raised.
(3) Of course, as a method of interpretation of criminal statutes, a teleological method should not be excluded entirely, and in consideration of the purpose of the legislature, the reason why the majority opinion interprets objects regulated under Article 4-2 of the Enforcement Decree delegated by items 1 through 13 and item 14 of Paragraph 1 of Article 6 include operating 'activities' in the facilities though Article 4-2 limits objects regulated as 'facilities' lies in improving efficiency of school education while protecting students from harmful environments and neglecting school study by regulating not only certain 'facilities' in the cleanup zone, but also operating 'activities' using such facilities and it has some aspects of appropriateness.
However, with regard to regulating a certain activity to improve health and wealth of people, to determine whether to regulate the administrative measures or in their furtherance to regulate them as a matter of criminal punishment is a province of the legislature, and even if the necessity of the regulation and the matters concerned are significant, there are plenty of examples taking only administrative measures rather than punishing the action as a crime. In addition, even if the operating activities at the existing facilities such as the activity concerned in this case are not punished as a crime, it never means those activities are neglected or instigated. Not only does Addenda 2 of the Enforcement Decree impose a duty to transfer or close such facilities but also Paragraph 3 of Article 6 of the Act takes measures necessary for the governor of the city or the province to prohibit illegal facilities and authorizes them to order destruction of such illegal facilities if necessary and, therefore, as long as the administrative body applies strict measures and supervises exhaustively, the purpose of the legislature would be fully accomplished.
If there is a need for a strict regulation by imposing punishment with regards to the operating activities using the facilities in the cleanup zone, the statutes prohibiting such operating activities should be enacted in order to achieve such a purpose and, therefore, broadening the scope of punishment for reason of interpreting the purpose of the legislature where none of the statutes indicate such, is not an appropriate attitude in violation of the principle of nulla poena sine lege and the principle of strict interpretation in the criminal law.
C. For the foregoing reasons, we cannot agree with the majority opinion. This Court's Decision 98Do2962 delivered on November 13, 1998, which the majority opinion overrules, expresses legal opinions in accordance with the phrases and structure of Paragraph 1 of Article 6 of the Act and Article 4-2 of the Enforcement Decree comprising the contents of the criminal law, and, therefore, should not be reversed.
Chief Justice Choi Jong-young (Presiding Justice)
Justices Song Jin-hun
Suh Sung
Cho Moo-jeh (Justice in charge)
Yoo Ji-dam
Yoon Jae-sik
Lee Yong-woo
Bae Ki-won
Kang Shin-wook
Lee Kyu-Hong
Lee Kang-kook
Son Ji-yol
Park Jae-yoon
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