[2] The case holding that the act of displaying free gifts other than those designated and publicly notified by the Minister of Culture and Tourism in a game room constitutes an act of offering free gifts

[2] The case holding that an act of displaying free gifts other than those designated and publicly notified by the Minister of Culture and Tourism in a game room constitutes an act of offering free gifts

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

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

To order the defendant to pay an amount equivalent to the above fine.

The act of offering free gifts under Article 32 subparagraph 3 of the Sound Records, Video Products and Game Software Act, which is punished by Article 50 of the same Act, shall not be limited to cases where free gifts other than free gifts are actually paid and delivered to game users, but also include cases where free gifts are exhibited or kept in order to provide to game users with free gifts.

Therefore, as stated in the facts charged of this case, the Defendant’s act of displaying three bottles, which are free gifts other than free gifts, was in violation of Article 32 subparag. 3 of the Sound Records, Video Products and Game Software Act, and thus, the lower court erred by misapprehending the legal doctrine that acquitted the Defendant.

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

A. The summary of the facts charged of this case is that "the defendant should not provide free gifts not in accordance with the type or method as determined and publicly notified by the Minister of Culture and Tourism at the general game room in the operation of the previous North Korean sub-Eup from March 2, 2004 to September 15:00 of the same month, the defendant displayed it in order to provide three free gifts in addition to the type designated and publicly notified by the Minister of Culture and Tourism to many unspecified customers who find the above game site."

B. The court below found the defendant not guilty of the facts charged of this case on the ground that the "act of offering a gift" under Article 32 subparagraph 3 of the Sound Records, Video Products and Game Software Act means the actual provision of a gift, and the act of displaying or keeping the gift for this purpose cannot be deemed to constitute a "act of offering a gift" under the above provision in light of the principle of no punishment without law.

3. Judgment of the court below

A penal provision shall be strictly interpreted and applied in accordance with the language and text, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. However, a teleological and systematic interpretation that takes into account the legislative intent and purpose, legislative history, system, etc. of the law shall not be excluded in the interpretation of the penal provision unless it goes beyond the ordinary meaning of the legal text (see Supreme Court Decision 2002Do2363, Jan. 10, 2003, etc.).

Article 32 subparag. 3 of the Sound Records, Video Products and Game Software Act prohibits a game providing business operator from 'act of providing gifts' which may encourage speculation or have influence harmful to juveniles. Each item of the same subparagraph prohibits the act of providing premiums other than the types determined and publicly notified by the Minister of Culture and Tourism and the act of providing premiums without using the methods determined and publicly notified by the Minister of Culture and Tourism, and specifically determines the criteria for dealing with premiums in the Ministry of Culture and Tourism's notice on the criteria for dealing with premiums in the game providing business established and amended by the Ministry of Culture and Tourism (amended by Presidential Decree No. 2002-18, Dec. 30, 2002).

However, Article 32 subparag. 3 of the above Act appears to have its legislative intent and legislative purpose in order to promote the soundness of a game room, prevent speculation, and protect juveniles. In light of the above legislative purpose and purpose, not only where goods prohibited from giving or paying free gifts are actually offered or provided, but also where a game business is conducted by providing such goods as free gifts. Even if a person expresses, displays, or displays an intention to give free gifts prohibited under the above Act and subordinate statutes as if such conditions were not fulfilled and the conditions were not fulfilled, if such conditions were not imposed on the ground that they were not actually paid as free gifts, it would cause a serious obstacle to the realization of the legislative purpose, such as the prevention of the soundness of a game room, the promotion of speculation, and the protection of juveniles (see, e.g., Article 32 subparag. 3 of the above Act, which prohibits the display or display of goods prohibited from giving free gifts in the notice of the Ministry of Culture and Tourism).

In addition, even if the phrase "act of offering a gift" under Article 32 (3) of the above Act includes not only the case where a gift is actually issued or paid in compliance with a certain condition, but also the case where a gift is provided as a gift if it satisfies a certain condition prior thereto, it cannot be said that it goes beyond the ordinary meaning of the phrase.

Therefore, it is reasonable to interpret that the "act of offering a gift" under Article 32 subparagraph 3 of the above Act includes not only the case where goods other than the kind of goods prescribed and publicly notified by the Minister of Culture and Tourism are actually delivered or delivered as a gift, but also the case where they are displayed or displayed in light of the legislative intent and purpose, and such interpretation constitutes "an interpretation beyond the possible range of meaning in the words, or an expanded interpretation beyond the scope of meaning in the words," and it is not in violation of the principle of no punishment without law

Nevertheless, the court below found the defendant not guilty of the facts charged in this case on the ground that the "act of offering a gift" under Article 32 subparagraph 3 of the above Act refers to the act of actually providing a gift, and the act of displaying or keeping a gift in order to provide a gift in accordance with the principle of no punishment without law does not constitute this. The judgment below erred by misapprehending the legal principles as to "act of offering a gift" under Article 32 subparagraph 3 of the above Act, which affected the conclusion of the judgment. The prosecutor's appeal pointing this out has merit.

4. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

Punishment of the crime

From March 2, 2004 to September 15:00 of the same month, the Defendant was prohibited from providing free gifts not in accordance with the type or method determined and publicly notified by the Minister of Culture and Tourism at a general game room in the operation of the front North Korean sub-Eup. However, in addition to the type designated and publicly notified by the Minister of Culture and Tourism, the Defendant displayed, stored, and provided three free gifts (title: trademark name: Y, Gawing, wing, and SPE) to unspecified customers who find the game site in addition to the type designated and publicly notified by the Minister of Culture and Tourism.

Summary of Evidence

1. The defendant's above court and each part of the court below's statements

1. Statement of the police suspect interrogation protocol against the accused;

1. To describe a copy of the control report on business place attached to investigation records; and

1. Each image of a copy of a photograph of a business place in violation attached to investigation records;

Application of Statutes

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

Article 50 Subparag. 3 and Article 32 Subparag. 3 of the Sound Records, Video Products and Game Software Act (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

Judges Choi Ji-su (Presiding Judge)