Defendant 1 shall be punished by imprisonment with prison labor for four years and by imprisonment for one year and six months.

Defendant 2’s appeal is dismissed.

A. Defendant 1

(1) misunderstanding of facts

In addition to the money exchange through subordinate organizations such as stores, there is no fact that the defendant exchangeds the game site users directly in response to the request of the users of the game site. Therefore, there is an error of law by misunderstanding the fact that the principal company paid "in a way of remitting money directly to the user's account."

2) Unreasonable sentencing

The punishment sentenced by the court below against the defendant (ten months of imprisonment) is too unreasonable.

B. Defendant 2 (Unfair Undue Practices)

The punishment sentenced by the court below against the defendant (one year of imprisonment and three years of suspended execution) is too unreasonable.

C. Defendant 3 (U.S. 2) (M. 2)

The punishment sentenced by the court below against the defendant (eight months of imprisonment) is too unreasonable.

D. The Prosecutor (Defendant 1, Defendant 3 (Defendant 2)

(1) misunderstanding of facts

According to the evidence duly submitted by the prosecutor, the part of the facts charged in the instant case’s “assuming KRW 540,057,536 per day and causing game to run,” under Article 1 of the facts charged, was sufficiently recognized, and the lower court acquitted the above amount on the ground that it is difficult to recognize the above amount.

2) Unreasonable sentencing

Each of the above types of punishment sentenced by the court below against Defendant 1 and Defendant 3 (Defendant 2 in large form) is unfair.

2. Determination

A. Judgment on the mistake of facts by Defendant 1

In full view of the evidence duly admitted and examined by the court below, there are the following circumstances, namely, ① the gambling program site developed by Defendant 2 who has developed the “○○ Game” as stated in the facts charged of this case. Defendant 2 stated that Defendant 2 can use the manager for the method of exchange of the said game or directly exchange it at the head office. ② The term “total Refund Management” in the title of “△△△ Game” in the “total Refund Management” in the exclusive page for the manager of the “△△ Game,” “ Burial-Rescept-Inscept-Inscept-Inscept-Inscept-Inscept-Inscept-Inscept-Inscept- inscept-ins, it appears that direct exchange between the head office and its members is possible (Evidence No. 1 & 218 of the evidence record), and Defendant 2, who is the developer of the said game, did not accept the above assertion that the above method of exchange was identical to the above Defendant 1’s head office.

B. Determination on Defendant 2’s assertion (e.g., e., imprisonment)

Defendant 2 performed a key role in the operation of the illegal gambling site, such as the development of gambling program and the management of servers, and thus, Defendant 2 should be punished strictly. However, the lower court recognized Defendant 2’s errors and violated all of its judgment, and did not have the same criminal record (including probation and community service order for 160 hours) in consideration of the circumstances favorable to Defendant 2 (including probation and community service order) and other circumstances that are the conditions for sentencing as indicated in the records, such as the circumstances before and after the crime, Defendant 2’s age, character and conduct, and environment, it cannot be said that the sentence imposed on Defendant 2 is too unreasonable.

C. Determination as to the prosecutor's assertion of mistake of facts as to Defendant 1 and Defendant 3 (Defendant 2 on Board)

As to this part of the facts charged, the lower court determined that the evidence submitted by the prosecutor alone is insufficient to recognize the facts, in light of the following: (a) according to each statement by Defendants 2 and 3 (Defendant 2) and the fact that the relevant server was in an attack and did not normally operate because the server user fee was not paid; and (b) Defendant 2 was paid as part of the money received by Defendant 2 as a server user fee.

The burden of proof for the facts constituting an offense prosecuted in a criminal trial is to be borne by a public prosecutor, and the conviction shall be based on the evidence with probative value that makes the judge feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt about the defendant's guilt, it is inevitable to determine the defendant's interest in light of the above legal principles (see, e.g., Supreme Court Decision 2008Do10096, Jun. 25, 2009). In light of such legal principles, it is difficult to find that the evidence submitted by the public prosecutor alone was subject to the intention of "average 540,057,536 won per day." Since there is no new evidence to prove it in the trial, the lower court's determination is just, and it is not acceptable to accept the prosecutor's assertion of mistake of facts and its additional collection based on such evidence.

D. Determination on the assertion of unfair sentencing on Defendant 1 and Defendant 1 by the Prosecutor

The crime of this case is planned and systematically operated the Internet illegal gambling site, and the quality of the crime is extremely poor in view of its social rippleity. In light of the fact that Defendant 1 committed the crime of this case as the principal offender of the crime of this case, it is difficult to view that Defendant 1 committed the crime of this case, and Defendant 1 did not severely punish Defendant 1, in light of the fact that Defendant 1 committed the crime of this case during the repeated crime period. In addition, taking account of the following circumstances, the degree of profit from the crime of this case, the motive and circumstance leading up to the crime of this case, the motive and circumstance leading up to the crime of this case, the circumstances leading up to the crime of this case, the age and character and conduct of Defendant 1, and the circumstances leading to the crime of this case, etc., the punishment imposed on Defendant

E. Determination on the assertion of unfair sentencing on Defendant 3 (Defendant 2 on behalf of the Defendant) and Defendant 3 (Defendant 2 on behalf of the Defendant on behalf of the Defendant) of the Prosecutor

Defendant 3 (Defendant 2) does not seriously punish Defendant 3 (Defendant 2) in light of the fact that Defendant 3 (Defendant 2 on March 30, 2012), Defendant 3 (Defendant 2), who was sentenced to a probation and a community service order for 120 hours at the Seoul Central District Court on August 201 to the violation of the Act on Promotion of Information and Communications Network Utilization and Information Network Utilization and Information Protection, etc., and committed the instant crime without any reflector even during the grace period. In addition, taking into account the motive and circumstance leading to the instant crime, the degree of participation in the instant crime, the age, character and conduct, and environment of Defendant 3 (Party 2), the degree of participation in the instant crime, the age of Defendant 3 (Party 2), Defendant 3 (Party 3) (Party 2), and other factors attached to the sentencing indicated in the records, the sentence imposed by the lower court on Defendant 3 (Defendant 2) is somewhat unfair.

3. Conclusion

Therefore, Defendant 2’s appeal is dismissed in accordance with Article 364(4) of the Criminal Procedure Act on the ground that there is no ground for appeal, and the prosecutor’s appeal against Defendant 1 and Defendant 3 (party 2) is with merit. Thus, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the judgment below is again decided as follows after the pleading (except for the appeal against Defendant 1 and Defendant 3 (party 2) is not reasonable, but for the case where the decision of the court below is reversed by accepting the appeal against Defendant 1 and Defendant 3 (party 2) of the public prosecutor, the appeal against Defendant 1 and Defendant 3 (party 2) is not dismissed separately from

Articles 247 and 30 of the Criminal Act, Article 45 subparagraph 4 and Article 32 (1) 2 of the Promotion of respective Game Industry Act, Article 30 of the Criminal Act (the point of providing game products different from those classified), Article 44 (1) 2 and Article 32 (1) 7 of the Promotion of respective Game Industry Act, Article 30 of the Criminal Act (the point of using game products exchange business)

1. Handling concurrent crimes;

Defendant 1: The latter part of Article 37 and Article 39(1) of the Criminal Act (Joint Crimes of Gambling and Gambling, etc., established at the time of sale)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Code

Judges Kim Su-cheon (Presiding Judge)