Revocation of Suspension of Indictment | Analysis of a Constitutional Court Decision Holding That a PC Cafe Employee, Not Being a ‘Game Business Operator,’ Cannot Be Subject to Criminal Punishment

The person who filed the constitutional complaint for revocation of the suspension of indictment was A, who had worked as an employee at a PC cafe.

In 2022, A received a disposition of ‘suspension of indictment’ from the prosecutors on a charge of violating the Game Industry Promotion Act.

The circumstances of the case at the time were as follows.

The PC cafe where A worked operated on a 24-hour system.

From midnight until lunchtime it operated unstaffed, and from after lunchtime until just before midnight it operated with hired employees.

A was assigned to the night shift and would remain on duty until just before midnight before leaving work.

The incident in question occurred immediately after A had left work.

Six juveniles visited the PC cafe in the early morning hours and used the computers for about an hour.

The current law provides that the hours during which juveniles may enter a PC cafe are from 9:00 a.m. to 10:00 p.m.

A person who admits a juvenile in violation of the entry hours may be punished by imprisonment for not more than one year or by a fine of not more than ten million won.

Accordingly, while finding that the charge of admitting the juveniles in violation of the law was established against A, the prosecutors stated that they would suspend the indictment because the severity of the offense was not serious.

Arguing that this disposition by the prosecutors infringed A's right to equality and right to pursue happiness, A filed an action with the Constitutional Court to revoke the suspension of indictment.

We will introduce the relevant statutes and precedents cited in the constitutional complaint for revocation of the suspension of indictment.

In connection with the constitutional complaint for revocation of the suspension of indictment, A made clear the position that A had committed no wrongdoing.

At the time, the entrance of the PC cafe where A worked was equipped with an unmanned machine that verified identity through a resident registration card or similar means before allowing the door to be opened.

The juveniles who had visited the PC cafe in the early morning hours stated that the unmanned machine was not operating at the time.

A, too, had not received from the PC cafe owner any information regarding juvenile entry, nor any instruction on how to use the unmanned machine.

The PC cafe owner also initially stated that “the person working the final shift is required to activate the unmanned machine before leaving work,” but later changed the account, saying that “the unmanned machine broke down frequently, drawing many complaints from customers, and because payment of usage fees also became difficult, it was not used.”

On the basis of these points, A emphasized that A bore no responsibility.

The Constitutional Court, which heard the constitutional complaint concerning the revocation of the suspension of indictment, ruled in A's favor.

The reasoning was that the suspension of indictment against A infringed A's right to equality and right to pursue happiness, and therefore should be revoked.

First, the Constitutional Court focused on the term ‘game-related business operator’ set out in the Game Industry Act.

The Court first determined that A, being no more than a PC cafe employee, could hardly be regarded as a game-related business operator.

However, the Game Industry Act contains a joint penalty provision under which even an employee may be punished where that person is entrusted with the relevant business and actually executes it.

The Court stated that A could not be regarded as having been entrusted with and executing the business related to PC cafe entry, nor could A be regarded as bearing an obligation to observe the juvenile entry hours.

The reason given was that the PC cafe owner had not given A any instruction regarding operation of the unmanned machine, and A, too, had consistently stated during the investigation that A had received no such instruction.

The Court added that, on the basis of the circumstances appearing in the investigation records alone, it was difficult to find that A had been aware of any obligation to operate the unmanned machine.

Nonetheless, because the prosecutors issued the disposition on the premise that the suspected facts were established, the Court pointed out that there was a serious misapprehension of the law or an incompleteness in the investigation, so that the disposition could be regarded as an arbitrary exercise of prosecutorial power.

A ‘suspension of indictment’ means that, although a criminal charge is established, the prosecutor declines to indict, taking into account the suspect's age, environment, and other factors.

Although the case is not brought to trial, it can be distinguished from a finding of no suspicion of crime (acquittal) in that the offense itself is acknowledged.

From the standpoint of a suspect who fully denies the charge, a ‘suspension of indictment’ disposition can also feel deeply unfair.

However, a party subject to the disposition, as opposed to a complainant or accuser, has no authority to file an appeal against the order.

The only means of raising an objection is precisely the ‘request for adjudication of a constitutional complaint.’ (a request contesting an administrative action before an agency prior to court litigation, comparable to seeking administrative review)

According to statistics, about two out of every ten people who, like A in this case, have sought revocation of a suspension of indictment receive a decision granting the claim from the Constitutional Court.

At Daeryun Law Firm LLP, attorneys with experience in obtaining a decision granting the claim in constitutional complaints related to the revocation of a suspension of indictment provide clients with tailored assistance.

If you have any related inquiries, you are welcome to reach out to Daeryun Law Firm LLP at any time.