(영문) 서울동부지방법원 2020.2.18. 선고 2020고단65 판결

Defendant A shall be punished by imprisonment with prison labor for six months, and by a fine of two thousand won. If Defendant B fails to pay the above fine, the above Defendant shall be confined in a workhouse for a period calculated by converting KRW 100,000 into one day.

However, the execution of the above punishment against Defendant A shall be suspended for two years from the date this judgment became final and conclusive. Ordering Defendant A to provide community service for 120 hours. 497,000 won from Defendant A shall be collected. Ordering Defendant A to pay an amount equivalent to the above additional collection charge and an amount equivalent to the above fine against Defendant B shall be issued.

Reasons

Criminal facts

1. Defendant A

(a) No one, other than a person who has been entrusted with the business of issuing lottery tickets and the Korea Lottery Commission for the violation of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, etc., the violation of the Lottery Tickets and Lottery Fund Act, and the establishment of gambling spaces, or a person who has been re-entrusted with the business of issuing lottery tickets, shall issue lottery tickets, and a person, who intends to engage in speculative business of making property gains or losses by collecting property or financial benefits from many people, shall obtain the permission of the Commissioner of

Nevertheless, the Defendant, as a condition that 0.1% of the betting amount should be collected from “C”, play a role in soliciting the operators of the online game site, which is the off-line game site, and accordingly, provides D with a program of gambling and receipt printing machine, etc. to D through the party concerned at the office of the off-line game site. From November 4, 2018 to December 27, 2018, the Defendant: (a) provided one computer and receipt printing machine in the game operated by the Gangdong-gu Seoul Metropolitan Government Office Ethtel Ethy Ethypt D; (b) provided the above 0-1,000 won in the total of 0-1,000 won in the games; and (c) provided 0-1,000 won in the games, or more in the total of 0-1,000 won in the games; and (d) provided 30-1,000 won in the games games, or more in the total of 0-1,000 won in the games.

In operating a speculative act in cash in accordance with the dividend rate, the above D acquired a fee equivalent to KRW 14,919,000 equivalent to 3% of the betting amount by the gambling program users, and the Defendant acquired a fee equivalent to KRW 497,00,000 equivalent to 0.1% of the betting amount.

Accordingly, the defendant, in collusion with the above D, issued lottery tickets even though it is not the Korea Lottery Commission, conducted speculative business without obtaining permission from the commissioner of a district police agency, and opened a gambling space for profit-making purposes.

B. Violation of the Electronic Financial Transactions Act

No one shall transfer or acquire any means of access, unless otherwise specifically provided for in any other Act, in using and managing the means of access.

Nevertheless, around September 5, 2018, the Defendant received the means of access by obtaining the passbook, physical card, and password from the NAJ account opened at the time when it was demanded to create one passbook because it was the person bad credit for him/her at a closed area below the Gangdongdong, Gangdong-gu Seoul Metropolitan Government.

2. Defendant B

From September 21, 2018 to December 2, 2018, the Defendant sent KRW 39,300,000 over 16 times to the Agricultural Cooperative Account in the name of the said I used, as shown in the attached list of crimes, at K 1st website in Gangdong-gu Seoul, Gangdong-gu, Seoul, with access to “G”, which is an Internet illegal gambling site, and received the corresponding game money and received the corresponding money.

Summary of Evidence

1. Defendants’ respective legal statements

1. Each police suspect interrogation protocol of D, I, or M;

1. Investigation reports (Attachment of photographs at the control site), investigation reports (Attachment of specific suspect and cell phone data), investigation reports (Attachment of details of deposit transactions), investigation reports (Attachment of details of deposit transactions), investigation reports (Attachment of judgment D) and investigation reports (Adjustment of list of remittances of gold remittance crimes even for suspects B);

1. Three copies of a documentary evidence-related photograph and a receipt for sale; and

1. Stockholm data;

1. Each written judgment (Nos. 28,31 in list of evidence);

1. Records of seizure and the list of seizure;

Application of Statutes

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

(a) Defendant A: Articles 30(2)1 and 4(1) of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc., Article 30 of the Criminal Act, Article 34(1)1 and 4(1) of the Criminal Act, Article 30 of the Lottery Tickets and Lottery Fund Act, Article 30 of the Criminal Act (the issuance of lottery tickets, inclusive of the issuance of lottery tickets), Articles 247 and 30 of the Criminal Act, Articles 247 and 30 of the Criminal Act, Article 49(4)1 and 6(3)1 of the Electronic Financial Transactions Act (the selection of a place for gambling, inclusive of the establishment of a place for gambling), Article 49(4)1 and 6(3)1 of the Electronic Financial Transactions Act

B. Defendant B: Article 246(1) of the Criminal Act (amended by Act No. 246(1))

1. Aggravation for concurrent crimes;

Defendant A: the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act

1. Detention in a workhouse;

Defendant B: Articles 70(1) and 69(2) of the Criminal Act

1. Suspension of execution;

Defendant A: Article 62(1) of the Criminal Act (General Considerations favorable to the reasons for sentencing below)

1. Social service order;

Defendant A: Article 62-2 of the Criminal Act

1. Additional collection:

Defendant A: Article 48(1)2 and (2) of the Criminal Act

1. Order of provisional payment;

Defendants: Defendant A for sentencing of Article 334(1) of the Criminal Procedure Act

The crime of Defendant A committed each of the instant crimes is disadvantageous to the fact that each of the instant crimes committed by Defendant A is highly harmful to society, such as promoting the spirit of public spirit and undermining sound labor awareness.

However, all of the crimes of this case are recognized, and there is no record of criminal punishment other than the past punished by a fine during that period, and the fact that there is no same kind of force shall be considered as favorable circumstances. Other factors such as the defendant's age, character and behavior, environment, the size of gambling site, the degree of the defendant's commission of crime, etc. shall be determined as ordered by taking into comprehensive account the records of this case and all other circumstances that are the conditions of sentencing as shown in the trial process

2. The fact that the amount used as Defendant B’s 2-month household gold is the amount equivalent to 39 million won is disadvantageous.

However, it shall be considered that the defendant's age, character and behavior, environment, circumstances of the crime, means and results of the crime, and various factors of sentencing specified in the records and arguments of this case, such as the circumstances after the crime, shall be determined like the order, comprehensively taking into account the following factors: the defendant's age, character and behavior, environment, circumstances of the crime, the means and consequence of the crime, etc.;