Whether, even if Article 2 subparag. 4 of the Public Notice of the Ministry of Culture and Tourism, which designates gift certificates that a game providing business entity may provide pursuant to the former Sound Records, Video Products and Game Products Act is invalid, whether a game providing business entity is still obligated not to provide non-designated gift certificates as gift coupons (affirmative)

Article 32 subparagraph 3 (a) of the former Sound Records, Video Products and Game Products Act (repealed by Act No. 7943 of Apr. 28, 2006) (see current Article 28 subparagraph 3 of the Game Industry Promotion Act)

Supreme Court Decision 2007Do5467 Decided November 15, 2007

Defendant

Prosecutor

Seoul Eastern District Court Decision 2006No860 Decided October 26, 2006

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

We examine the grounds of appeal.

1. The summary of the facts charged of this case is that "the defendant, around January 18, 2006, within the entertainment room "sea camping" in the operation of the defendant 111-1 of the 111-dong, Gwangjin-gu, Seoul Special Metropolitan City, installed 80 marine amusement equipment and kept piracy-20,000 gift certificates within the above entertainment machine, which are free gifts other than the kind determined and publicly notified by the Minister of Culture and Tourism, after being supplied with piracy-20,000 gift certificates within the above entertainment machine. The defendant issued cumulative points to unspecified customers using entertainment equipment as above gift certificates from the time of exchange with the above merchandise coupons from the time of the above time to March 8 of the same year, and the court below reversed the judgment of the court below that found the defendant not guilty of the designation of the Korea Game Industry Development Institute (hereinafter referred to as the "Korea Game Industry Development Institute" in violation of Article 205 of the Criminal Procedure Act, which is a foundation of the Korea Game Industry Development Institute (hereinafter referred to as the "Korea Game Industry Development Institute").

2. Article 32 subparag. 3(a) of the former Sound Records, Video Products and Game Software Act (repealed by Act No. 7943, Apr. 28, 2006; hereinafter “Food Expenses Act”) provides that a game providing business entity shall not engage in “act of providing free gifts other than the kind determined and publicly notified by the Minister of Culture and Tourism” as an act that may encourage speculation or influence juveniles, and Article 50 subparag. 3 of the same Act provides that “an act of providing free gifts other than the kind determined and publicly notified by the Minister of Culture and Tourism” shall be punished. Meanwhile, the instant public notice announced by the Minister of Culture and Tourism pursuant to Article 32 subparag. 3 of the same Act is limited to “free gifts designated by the Korea Game Industry Development Institute” in the case of gift vouchers under Article 2 subparag. 4 of the same Act. In light of the language and text of the instant public notice provision, this is no longer effective for the Korea Institute to provide free gifts for gift certificates to the extent that it does not permit the Korea Institute to provide such gift vouchers to be designated separately designated.

Therefore, even if Article 2 subparag. 4 of the Notice of this case is null and void, the act of the Defendant, a game providing business operator, providing gift certificates to customers with free gifts, shall be deemed to constitute a violation of the matters to be observed under Article 32 subparag. 3 of the Music Act. However, on the grounds as stated in its reasoning, the lower court rendered a judgment of not guilty on the ground that the facts charged in this case are not a crime. In so doing, the lower court erred by misapprehending the legal doctrine on Article 32 subparag. 3 of the Music Act, which affected the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)