Article 30(1)4 of the former Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc. (amended by Act No. 7428 of Mar. 31, 2005; hereinafter the same shall apply) provides that a person engaged in business of giving financial benefits or losses to users by using machines, apparatus, etc. which are likely to instigate speculative spirit, such as slot machines, mechanical slot machines, or speculative electronic gaming machines, in addition to speculative businesses under Article 2(1)1 of the same Act, shall be punished. Here, the determination of whether a certain machine, apparatus, etc. falls under “a machine, apparatus, etc. which is likely to cause speculative conduct” should not be based solely on the original usage or characteristic of the relevant machine, apparatus, etc., but rather on the basis of its purpose of use, method and type of use, the size of property benefits or losses arising from the result of use, whether it depends on the nature of the said machine, apparatus, etc., whether monetary benefits or premiums are given depending on the result of use or whether it is given in cash or not.

Examining the reasoning of the lower judgment in light of the record, it is justifiable for the lower court to have found the Defendant guilty of the instant facts charged on the grounds as stated in its reasoning. The lower court erred by misapprehending the legal doctrine that the Defendant recognized that the Defendant had made a revenue equivalent to KRW 25,00,000 per day through the instant type game room business, and that the computer installed in the said game room is merely a mere installation of a program to operate a speculative game through the Internet, but this circumstance does not affect the conclusion of the judgment.

The court below did not err in finding facts against the rules of evidence or in misunderstanding the legal principles as to Article 30 (1) 4 of the former Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc. and the principle of no punishment without law, which affected the conclusion of the judgment, as alleged in the ground of appeal. The grounds of

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)