Whether “the act of receiving a game outcome and delivering money” under Article 32(1)7 of the Game Industry Promotion Act includes “the act of delivering a game result and receiving money” in addition to “the act of receiving money from a game result” (affirmative)

Article 32(1)7 of the Game Industry Promotion Act (hereinafter “Game Industry Promotion Act”) provides that “any person shall not engage in the business of exchanging, mediating exchange, or repurchase tangible or intangible results (referring to game money prescribed by the Presidential Decree and things similar thereto prescribed by the Presidential Decree, such as score, premiums, and virtual currency used in the game) obtained through the use of a game product.” In full view of various circumstances, the term “stock exchange” under the above provision shall be construed as including not only “the receipt of game outcome and the delivery of money, and the receipt of money,” but also “the receipt of money,” and it shall not be deemed as excessive expansion or analogical interpretation.

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Article 32(1)7 and Article 44(1)2 of the Game Industry Promotion Act; Article 32 subparag. 3 of the former Sound Records, Video Products and Game Products Act (repealed by Article 3 of the Addenda to the Promotion of Motion Pictures and Video Products Act (Act No. 7943 of Apr. 28, 2006); Article 32 subparag. 5(a) of the former Sound Records, Video Products and Game Products Act; Article 32 subparag. 3 of the former Sound Records, Video Products and Game Products Act (repealed by Article

Defendant

Defendant and Prosecutor

Attorney Lee So-young

Changwon District Court Decision 2012No499 decided September 6, 2012

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

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s determination that the charge of violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. by prisoners of malicious programs was recognized for the reasons indicated in its holding is acceptable. In so doing, the lower court did not err by misapprehending the rules of logic and experience or by misapprehending the legal principles as to malicious program distribution or common offense, as otherwise alleged in the grounds of appeal.

B. Meanwhile, under Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. Thus, an appeal is not allowed to be filed with the Supreme Court on the grounds of the allegation that the amount of punishment is unreasonable.

2. As to the Prosecutor’s ground of appeal

A. The lower court determined that ① an act of exchanging or mediating or offering money to a game providing business for the purpose of Article 32(1)7 of the Game Industry Promotion Act (hereinafter “Game Industry Promotion Act”) was a violation of the former Act on Sound Records, Video Products and Game Software ( repealed by Article 3 of the Addenda to the Promotion of the Motion Pictures and Video Products Act, April 28, 2006; hereinafter “former Music Game Industry Promotion Act”) and that an act of exchanging or offering money to a game providing business for the purpose of Article 32 subparag. 3 of the former Act on the Promotion of the Game Industry (No. 205-9), which was announced by the Minister of Culture and Tourism, constitutes a violation of Article 32(1)3 of the former Act on the Promotion of Game Industry (hereinafter “Game Game Industry Promotion Act”) and the act of offering money to a game providing business for the purpose of Article 32(1)7 of the same Act, and thus, deemed that an act of offering money to a person who receives money from the game providing business for the purpose of Article 17(2 of the former Game Industry Promotion Act is prohibited.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

(1) Penal laws must be strictly interpreted and applied in accordance with the language and text, and they shall not be excessively interpreted or analogically interpreted in the direction unfavorable to the defendant. However, in the interpretation of penal laws, the teleological interpretation in light of the legislative intent and purpose, legislative history, etc. of the relevant laws shall not be excluded unless they go beyond the ordinary meaning of legal text (see Supreme Court Decision 2002Do2363, Jan. 10, 2003, etc.).

(2) Article 32(1)7 of the Game Industry Act provides that “No person shall engage in a business of exchanging or mediating exchange or repurchasing tangible and intangible results (referring to score, premiums, virtual currency used in the game, as determined by Presidential Decree, and things similar thereto as determined by Presidential Decree) obtained through the use of game products.”

In full view of the following circumstances, it is reasonable to interpret not only “the receipt of a game result and the delivery of money,” but also “the delivery of a game result and the receipt of money” as included in “the act of receiving money,” and it is not an excessive interpretation or analogical interpretation.

① As the Game Industry Act was amended on January 19, 2007, the said provision was newly established. However, even if the Ministry of Culture and Tourism’s announcement was prohibited from exchanging, arranging for exchange, or purchasing money only as a customer, the above provision explicitly states that the customer is “any person” unlike the previous announcement of the Ministry of Culture and Tourism. ② In the ordinary meaning of the phrase “exchange,” the provision includes “the act of delivering game result and receiving money” as well as “the act of selling the game products.” However, the above provision does not stipulate “as well as “the act of selling the game products” as well as “the act of selling the game products,” but it does not stipulate “the act of selling the game products” as an act of again purchasing the already exchanged game products, and thus, the above provision does not stipulate “the act of selling the game products” as an act of providing the contents of “the act of selling the game products” under the premise that the above provision would be prohibited from being “the act of selling the game products,” and thus, it cannot be deemed that the above provision should be “the act of selling the game products.”

(3) Nevertheless, the court below acquitted the defendant on the ground that the facts charged in violation of the Game Industry Act that "the defendant exchangeds game money by receiving money that goes beyond "game money" and runs a business of receiving money for a business of receiving game results" under Article 32 (1) 7 of the Game Industry Act constitutes a case where the facts charged in violation of the Game Industry Act is not a crime. Of the judgment of the court below, the part not guilty is erroneous in the misunderstanding of the legal principles as to "transfer" under Article 32 (1) 7 of the Game Industry Act, which affected the conclusion of the judgment. The prosecutor's ground of appeal pointing this out is with merit.

3. Scope of reversal

Of the judgment of the court below, the guilty portion in relation to concurrent crimes under the former part of Article 37 of the Criminal Act shall be sentenced to a single sentence for the entire guilty portion. Therefore, this part shall also be reversed together with the acquitted portion.

4. Conclusion

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 by the assent of all participating Justices.

Justices Ko Young-han (Presiding Justice)