Defendant

Both parties

Park Jong-chul, and the purpose of the use of hand;

Law Firm Min-Post, Attorneys Kim Gyeong-hwan et al.

Incheon District Court Decision 2018Ra1546 Decided June 20, 2018

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Probation of the accused shall be ordered and community service for 80 hours.

1. Summary of grounds for appeal;

(a) A prosecutor;

1) misunderstanding of facts as to the acquittal of reasons

According to the evidence submitted by the prosecutor, the program indicated in the facts charged (hereinafter “instant program”) can be sufficiently recognized as a program that may damage, destroy, alter, or forge ○○○ Game Program (hereinafter “instant game”) indicated in the facts charged, or interfere with its operation.

2) Unreasonable sentencing

The sentence of the court below (one year of imprisonment (two years of suspended execution) and one year of probation) is too unfluent and unreasonable.

B. Defendant

1) misunderstanding of legal principles as to guilty portion

A violation of the Game Industry Promotion Act, which is decided by the court below, constitutes an inclusive crime.

2) Unreasonable sentencing

The sentence of the court below is too unreasonable.

2. Judgment on the prosecutor's assertion of mistake of facts

A. Summary of the facts charged

No person shall transmit or spread any program (hereinafter referred to as "malicious program") that may damage, destroy, alter, forge, or interfere with the operation of an information and communications system, data, program, etc. without any justifiable ground.

Nevertheless, around July 18, 2016, the Defendant advertised that “△△△△△△△△△”, a malicious program operated by Nonindicted Party 1, with a function to automatically control the other party on the Internet homepage (site address omitted), etc. operated by the Defendant at the Defendant’s residence located in Bupyeong-gu Incheon, Bupyeong-gu, Incheon, on the Internet homepage (site address omitted), and transferred KRW 40,000 from Nonindicted Party 2 who reported and contacted the fact that “△△△△△△△△△△△△△△△△△△△△△△” was transferred to the national bank account in the name of the Defendant, and transferred “△△△△△△△△△△△△△△△△△△” to the above website from July 18, 2016 to July 3, 2017, as described in the separate crime list in the above method, received a total of 3,612 times in total, 19,2300,00 won and sold “△△△△△△△△△” without justifiable cause.

B. Determination

In light of the following circumstances, it is reasonable to view the instant program as a program that could interfere with the operation of the instant game in light of the evidence duly adopted and investigated by the lower court.

1) The instant game is a multiple users scam game, and the user belongs to one of five teams, and each of the users is an online game which pressures a counterpart team by performing fashion, such as selecting one of the herops provided in the game and constituting a hub in the former Chapter. The user is bound by the character at one-person screen to put the other team character into a scam and then launch the arms into a scam, thereby reducing the physical strength of the other team character. The other team character also continues to move into a scam, and the other team character is hidden subsequent to an obstacle, so in order to attack the other team character, it is necessary to grasp its location and accurately measure the other team character at the same time, and then, to confirm the remaining body character in the other team character. In this case, the other team character can be identified by indicating its physical strength and the other team character.

2) The instant program provides that the user automatically searches the location of the body part, indicated on the other team character, and automatically follows it, if the user participates in the attack of the other team character even once. The user, as a user, can easily success in attack against the other team character only by launching a weapon under the automatic control without the need to ascertain the location of the other team character and undergo the process to coordinate it.

3) In order to take advantage of the game of this case, the game of this case must ultimately serve as a hub for the former funeral, and the access of the counterpart team character that obstructs this process should be excluded. Therefore, it is very important factor in the game of this case to identify the location of the counterpart team character depending on his/her physical strength and antipathic and antipathic, and to accurately discover and launch it.

4) However, the use of the instant program leads to automatic search and automatic control by an external program, which was entirely not scheduled by the operator of the instant game. The substitution of important elements in the performance of the game by the instant program through a separate program, which is not scheduled by the developer, would substantially undermine the normal method of the performance of the instant game and the rating granting system according to the user’s ability to perform, i.e., the instant game operation, and the overall operation of the instant game. Moreover, it would be impossible to operate the game in a normal manner by allowing other users to raise questions about the fairness of the game, and by causing other users to lose their interest and competition.

5) Therefore, it is reasonable to view the program of this case as a malicious program that may interfere with the operation of the game of this case. The Defendant asserts to the effect that the program of this case is merely a simple ticket that does not alter the domain of the game of this case. However, considering the legislative purport and purpose of the Act on Promotion of Information and Communications Network Utilization and Information Protection, the text and text of relevant provisions, etc., it is difficult to view that the scope of application of Article 48 (2) of the same Act is limited to the case of alteration of the domain of the program, etc. (Article 2 subparagraph 7 of the same Act). While Article 48 of the same Act limits the subject of "infringes" to "information or program, etc.", Article 48 of the same Act expands the subject of protection to "data or program, etc.," and Article 48 of the same Act provides that the character of the program of this case can not be seen as a mere interference with the operation of the program of this case without any interference with the operation of the program of this case.

C. Sub-committee

The judgment of the court below that acquitted this part of the facts charged is erroneous in the misunderstanding of facts or in the misunderstanding of legal principles, which affected the conclusion of the judgment. In addition, since this part of the facts charged is in a mutually competitive relationship between a violation of the Game Industry Promotion Act and Article 40 of the Criminal Act, the judgment of the court below

3. Judgment on the misapprehension of the legal principle of the defendant

A. Where multiple acts falling under the name of the same crime continue to be committed for a certain period under the single and continuous criminal intent and the legal benefits from such damage are the same, each of these acts should be punished as a single comprehensive crime. In a case where there is a difference in the scope of punishment as a result of an erroneous evaluation of the number of crimes, there is an error of law by misunderstanding the legal principles as to the number of crimes, which affected the conclusion of the judgment (Supreme Court Decision 2003Do6288 Decided December 26, 2003).

B. In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, it is reasonable to view that the crime of violating the Game Industry Promotion Act as stated in the judgment below constitutes an inclusive crime.

1) The Defendant sold the instant program 3,612 times from July 18, 2016 to July 3, 2017. The said act continued for a certain period of time repeatedly.

2) The Defendant’s act is selling the instant program to many unspecified persons via the Internet, etc., and the same type of behavior is identical, and the content of the program sold is also the same. Unless there are circumstances to deem that the Defendant’s criminal intent is severed, it is reasonable to deem that the Defendant has repeatedly committed the foregoing behavior under the single and continuous criminal intent.

3) Article 46 Subparag. 2 of the Game Industry Promotion Act and Article 32(1)8 of the same Act provide for punishing the act of distributing computer programs not provided or approved by game products related business entities for the purpose of hindering the normal operation of game products. The purpose of this Act is to protect game products related business entities, thereby promoting the game industry and promoting the healthy game culture of the people. Accordingly, the legal interests of the Defendant’s act are the same as the legal interests of damage caused by the Defendant’s act.

C. Sub-committee

The judgment of the court below that judged a violation of the Game Industry Promotion Act as a substantive concurrent crime is erroneous in the misunderstanding of legal principles as to the number of crimes, which affected the conclusion of the judgment. Furthermore, since the violation of the Game Industry Promotion Act as stated in the judgment of the court below is not guilty, the upper court's judgment cannot be maintained in its entirety, since it is in a mutually concurrent relationship between the

4. Conclusion

Since the appeal by the prosecutor and the defendant is well-grounded, the judgment of the court below is reversed under Article 364(6) of the Criminal Procedure Act without examining the grounds for unfair sentencing by the prosecutor and the defendant, and the following decision is rendered

【Discretionary Judgment】

Punishment of the crime

1. Violation of Information and Communications Network Utilization Promotion Act;

No person shall transmit or spread any program (hereinafter referred to as "malicious program") that may damage, destroy, alter, forge, or interfere with the operation of an information and communications system, data, program, etc. without any justifiable ground.

Nevertheless, around July 18, 2016, the Defendant advertised that “△△△△△△△△△”, a malicious program operated by Nonindicted Party 1, with a function to automatically control the other party on the Internet homepage (site address omitted), etc. operated by the Defendant at the Defendant’s residence located in Bupyeong-gu Incheon, Bupyeong-gu, Incheon, on the Internet homepage (site address omitted), and transferred KRW 40,000 from Nonindicted Party 2 who reported and contacted the fact that “△△△△△△△△△△△△△△△△△△△△△△” was transferred to the national bank account in the name of the Defendant, and transferred “△△△△△△△△△△△△△△△△△△” to the above website from July 18, 2016 to July 3, 2017, as described in the separate crime list in the above method, received a total of 3,612 times in total, 19,2300,00 won and sold “△△△△△△△△△” without justifiable cause.

2. Violation of the Game Industry Promotion Act;

No one shall distribute computer programs, apparatus or device not provided or approved by a game products related business entity for the purpose of interfering with the normal operation of game products or produce them for the purpose of distribution.

Nevertheless, the Defendant received a total of KRW 199,230,000 in total over 3,612 times, as shown in the attached list of crimes, at the time and place described in paragraph (1) in the same manner as described in paragraph (1), and distributed computer programs not provided or approved by the game products related business entity for the purpose of hindering the normal operation of the game products by selling the aforementioned “△△△△△△△△” without approval.

Summary of Evidence

1. The defendant's partial statement in court below

1. The police statement of Nonindicted 3 (a copy)

1. Details of account transactions;

1. Reference materials concerning suspects, non-indicted 4

Application of Statutes

1. Article applicable to criminal facts;

Articles 70-2 and 48(2)(general) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., Article 46 subparag. 3-2 and Article 32(1)8 (general) of the Act on Promotion of Game Industry, and Selection of Imprisonment, respectively.

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Imprisonment Selection

1. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration favorable Conditions shown in Reasons for Sentencing below)

1. Probation and community service order;

Article 62-2 of the Criminal Act

Reasons for sentencing

[Ligue circumstances] The Defendant confessions his act and reflects his act. The Defendant deposited KRW 150 million for Nonindicted Party 1. The Defendant has no record of criminal punishment in addition to the punishment imposed once by a fine in 2010.

[Unjustifiable circumstances] Each of the crimes of this case is that the defendant interfered with the normal operation of the game by selling a program that was provided or not approved by game products related business entities, and such crime is serious in light of the details and period of the crime, the number of sales, and the amount of profit acquired by the defendant

As such, the sentencing grounds revealed in the proceedings of this case, such as the defendant's age, character, conduct, family relationship, environment, etc., shall be determined as per the disposition.

Judges Yang Sung-soo (Presiding Judge)