[1] The concept elements and standard for determining a uniform under Article 248 of the Criminal Code

[2] The case holding that the so-called "advertisement Lottery Tickets" constitutes a lottery ticket under Article 248 of the Criminal Code

[1] Chapter 23 of the Criminal Code provides for the crime of gambling and lottery ticket sales along with the crime of gambling under the title of "crimes concerning gambling and lottery ticket". Since lottery ticket is similar to gambling in the sense that winning is determined by chance, there is a reason to restrict and punish the act of selling it in order to protect sound people's labor concept and social morals. In addition, considering the purport of Article 2 (1) 1 (a) of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, etc., the conceptual elements of lottery ticket under Article 248 of the Criminal Code are ① specific ticket, ② the sale of the ticket is to gather money from many winnings, ③ it is possible to grasp that some winnings among them are able to benefit from property and to reduce losses to other participants, and in this respect, it is not necessary to determine the concept of the ticket or the nature of the ticket, which is only a special benefit benefit or the value of the advertisement incidental to the economic transaction, and if there is no other special nature such as the ticket or the nature of the ticket.

[2] The case holding that the so-called "advertisement lottery ticket" in ordinary cases is merely a burden on the part of the participants who used it as a means of publicity and promotion, and in itself, it constitutes a lottery ticket under Article 248 of the Criminal Code, on the ground that some of the winners have the character of a lottery ticket giving financial benefits to others and causing financial losses to others by a contingency method such as lottery.

[1] Article 248 of the Criminal Code, Article 2 (1) 1 (a) of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, etc. / [2] Article 248 of the Criminal Code

Defendant 1 and one other

Prosecutor

Seoul District Court Decision 2003No4249 Delivered on August 28, 2003

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

1. The summary of the facts charged of this case is as follows: Defendant 1 is an auditor of Korea Advertising Lottery Corporation and is in fact an operator of Korea Advertising Lottery Corporation; Defendant 2, as the director of the above company, shall not sell lottery tickets which are not in accordance with Acts and subordinate statutes; Defendant 2, from November 2001 to December 2002, in collusion, the name of lottery tickets in the above company's office is "advertisement Lottery tickets"; the method of winning the tickets is 50 million won if the number of the first class of the housing lottery tickets per 4 weeks, regardless of the expiration date, is identical to the first class of the housing lottery tickets; 50 million won if the second class winning numbers correspond to the third class winning numbers; 4 million won if the third class winning numbers correspond to the above winning numbers; 200 to 300 won per lottery ticket; 200 to 1 million won per 100 to 300 to 100 to 400 to 250 to 2684 to 250.

2. On this point, the court below decided that the above winning tickets are the number tickets issued in advance by the seller of lottery tickets to pay money or other property to many people, and it is anticipated that the above winning tickets will be distributed equally to the purchaser by the method of lottery, etc., and Article 2 (1) 1 (a) of the Act on Special Cases concerning the Regulation and Punishment of Speculative Acts, etc. provides that the definition of the lottery tickets issuing business is "the business of collecting money from many people by the method of lottery, etc., and giving financial gains to the winners and causing financial losses to the others," so it can be viewed as "the business of selling lottery tickets" under Article 248 of the Criminal Act.

3. Chapter 23 of the Criminal Code provides for the crime of gambling and the crime of selling clothes along with the crime of gambling in Chapter 23 of the Criminal Code. Since clothes are similar to gambling in the sense that the success and failure are determined by chance, there is a reason to restrict and punish the act of selling them in order to protect sound people's labor concept and social morals, and considering the purport of Article 2 (1) 1 (a) of the Act on Special Cases Concerning Regulation and Punishment of Speculative Acts, etc., the court below is justified to understand the conceptual elements of a uniform provided in Article 248 of the Criminal Code as ① specific ticket, ② to gather money and valuables from many winnings by selling the ticket, ③ to give financial benefits to some winnings and to reduce losses to other participants by a remote method such as drawing, etc. In this respect, it is reasonable to understand that the nature of the ticket is different from the price of benefits or special gift rights, which are incidental to economic transactions, which are only the price of the gift or special gift rights.

However, the issue of which label constitutes a uniform as stipulated in Article 248 of the Criminal Act shall be determined by the nature of the label itself, and if the basic nature of the label satisfies the above conceptual elements, it shall be determined by the nature of the ticket itself, and even if other employers, such as the advertiser, bear the loss of the participants who did not won as a result of the relationship with some other functions such as the advertisement, it shall not be deemed that the nature of the ticket does not lose unless there are special circumstances.

However, according to the records, in selling the above "advertisement Lottery Tickets" (hereinafter "the label of this case"), the defendants gather money and valuables from many unspecified enterprisers under their own account by continuously selling the label of this case at a price that takes into account the overall winning rate, issuing costs, profit, etc. Accordingly, the label of this case has a structure where only some winners gain profit from the friendly nature using the result of drawing lots of housing lottery tickets and other people do not have any loss as a matter of course. In the case of trade, the enterpriser who purchased the label of this case is not subject to such restriction on the label of this case itself, but may sell the label of this case to customers, etc., or transfer the purchase cost to the price of the goods, and it can be seen that the enterpriser can directly respond to the price of the goods, and if it does not directly use the ticket of this case as a means of publicity and promotion, it can not be viewed that there is any other property loss as a means of acquiring the ticket of this case.

Nevertheless, the court below found the remaining Defendants not guilty solely on the grounds as seen earlier. In so doing, it did not err by misapprehending the legal principles on the clothes stipulated in Article 248 of the Criminal Act, thereby affecting the conclusion of the judgment.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)