[2] Whether there is no value of punishment in a case where a gambling act is committed with no punishment due to the degree of temporary entertainment under the Criminal Act at a public morals business place (negative)

[3] The case holding that the establishment of a crime of gambling under the Criminal Code is not premised on the establishment of a crime of gambling in case where a lodging business operator allowed a lodging business operator to do gambling which is only a temporary entertainment at his/her own business establishment

[2] The protected legal interest in the crime of gambling under the Criminal Code is to protect the law of sound morals in economy by punishing acquisition of property which is not subject to legitimate labor. On the other hand, the Act on the Regulation of Amusement Businesses Affecting Public Morals was enacted with the purpose of preserving public morals and contributing to protecting juveniles as well as preserving public morals by regulating acts that undermine the good customs at a public morals establishment or undermine the sound fostering of juveniles. In fact, in a case of gambling with no possibility of punishment due to the degree of temporary entertainment under the Criminal Code at a inn or public bath which is a public morals business establishment, it is not clear whether the above gambling is merely the degree of temporary entertainment, and it is true that the above gambling will go back to the adverse effect if a juvenile comes into contact with such gambling, and therefore, it cannot be said that there is no value of punishment.

[3] The case reversing the judgment of the court below which held that, in case where a lodging business operator conducted gambling which is only a temporary entertainment at his own business place, it constitutes a violation of the Act on the Regulation of Amusement Businesses Affecting Public Morals, it should be reviewed separately from the establishment of the crime of gambling in light of the legislative purpose of the Act on the Regulation of Amusement Businesses Affecting Public Morals, and thus, it does not constitute a violation of the Act on the Regulation of Amusement Businesses Affecting Public Morals Public Morals Public Morals Public Morals Public Morals Public Morals Public Morals Public Morals

A defendant shall be punished by a fine of 500,000 won.

Where the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted 40,000 won into one day: Provided, That the fractional amount shall be one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The prosecutor's remaining appeal is dismissed.

The court below judged that the act of gambling by the defendant et al. of this case does not constitute a crime because it is merely temporary entertainment, and therefore, it does not constitute a violation of the Act on the Regulation of Amusement Businesses Affecting Public Morals which are premised on the defendant et al.'s gambling, and sentenced the defendant not guilty. However, the court below found the defendant guilty on the charge of violation of the Act on the Regulation of Amusement Businesses Affecting Public Morals (hereinafter referred to as the "SPA"), but it is hard to accept the defendant's defense that the defendant et al. started gambling from 9:0 p.m., it is hard to believe that the defendant et al. started gambling from 9:0 p.m., it does not constitute the degree of temporary entertainment, and even if the degree of temporary entertainment for the above time is not sufficient, it is found that the defendant violated the law of the public morals of the defendant in light of the purpose of legislation of the Customs Act. The court below erred by misapprehending this fact and affecting the conclusion of the judgment.

2. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

The Defendant, along with Nonindicted Party 1, 2, and 3, was a person operating the Geinnin Park, and from July 5, 2002 to July 21:200 to July 20, 21:200, the Defendant caused the said Nonindicted Party 1, etc. to gambling in a way that the number and pattern of each card are fixed in accordance with 7 forms of number and pattern using card 52, and the Defendant paid 1,000 won to the winners according to the table of the Kinnin Park, etc., on several occasions (hereinafter referred to as the “hulule”), and even if he was prohibited from gambling at a customs business place, he had the said Nonindicted Party 1, etc. gambling in the above time and place.

B. The judgment of the court below

The court below acknowledged the fact that the defendant walked money as stated in the facts charged, while the defendant operated a house of 70 million won to 43 square meters, and the defendant owned an apartment house of 43 square meters. The non-indicted 2 is the operator of a health club, the non-indicted 1 leased 20,000 square meters to 20,000, and the above person 3 is the person residing in one club. The above person's place where the defendant et al. al. started a hulve with the entrance of the entrance operated by the defendant, and the defendant et al. was not guilty of the above facts. The defendant et al. found the defendant's act of 10,000,000 won by the defendant et al. on the day of this case to 4,000 won, and the defendant et al. was not guilty of the above facts. The defendant's act of 10,000 won by 0,000 won of the game of this case.

3. The judgment of this Court

A. Gambling point

Examining the reasoning of the judgment below in comparison with records, the above fact-finding by the court below seems to be legitimate. Considering that the defendant et al. ordered meals at nearby restaurants around the time of the day of the instant case and brought about a mistake, it appears that the act of gambling and entertainment in this case was committed in order to pay meals among them (see Supreme Court Decision 24,51, supra; Supreme Court Decision 24,51, Jan. 2, 2009; Supreme Court Decision 200, Jan. 26, 2001; Supreme Court Decision 2006Da14488, Feb. 28, 2008; Supreme Court Decision 2006Da14888, Feb. 28, 2006).

(b) Violation of the Customs Law;

The court below determined that the defendant's act of gambling does not constitute a violation of the Customs Act on the premise that the defendant et al. committed gambling. However, Article 3 subparagraph 3 of the Customs Act provides that "no gambling or other speculative acts shall be permitted at a public morals business establishment due to matters to be observed by a person who runs an amusement business," and there is no provision for "speculative acts" under the current law (only prohibiting juveniles from engaging in speculative acts, such as the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc., or allowing them to engage in speculative acts by using game products) and Article 3 subparagraph 1 of the Customs Act provides that the defendant's act of gambling does not constitute a crime of violation of the Customs Act on the ground that the above act of gambling does not constitute a crime of violation of the Customs Act on the ground that it does not constitute a crime of violation of the Customs Act on the ground that the defendant's act of gambling is not a legitimate act of violation of the Customs Act on the ground that it does not necessarily mean that the crime of violation of the Customs and Customs Act was established for the purpose of the above 2000.

4. Conclusion

Therefore, since the prosecutor's appeal as to gambling among the facts charged in this case is without merit, it is dismissed under Article 364 (4) of the Criminal Procedure Act, and the prosecutor's appeal as to the violation of the Customs Act is with merit, so the part of the judgment of the court below as to the violation of the Customs Act among the facts charged in this case is reversed, and it is again decided as follows after pleading.

Criminal facts

The Defendant is a person operating the Gininn's hotel, and even if he was prohibited from gambling at a public morals business office, the Defendant, along with Nonindicted 1, 2, and 3 on July 5, 2002, had the said Nonindicted 1, etc. gambled in several occasions in a way that he was paid to the winners each by 1,00 won and 1,00 won by using card 52 from July 5, 200 to 21:20.

Summary of Evidence

1. Each statement of the police suspect interrogation protocol against the defendant, non-indicted 1, 2, and 3

1. Entry of the police record of seizure;

1. Statement of the investigation report;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 10(1) and 3 subparag. 3 of the Act on the Regulation of Amusement Businesses Affecting Public Morals (Selection of Fine)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Grounds for sentencing

In addition to the criminal records of the defendant, the punishment was determined in consideration of various circumstances, including the circumstances leading up to the defendant to the crime of this case, the age, character and conduct, status, environment of the defendant, the motive, means and consequence of the crime of this case, and the circumstances after the crime.

It is so decided as per Disposition for the above reasons.

Judges Kim Jong-young (Presiding Judge)