Whether a criminal suspect who is investigated by an investigative agency is not an actual business owner of a game room, amusement room, or room, but an actual business owner, and the act of making a false statement as the actual business owner constitutes a crime of escape of the criminal (negative in principle)

The facts of a suspect who is investigated by an investigative agency on suspicion of violation of the Game Industry Promotion Act and gambling openings, etc. do not constitute a crime of escape from a criminal suspect, even though he/she made a false statement on his/her actual business, regardless of whether he/she was an employee, rather than an actual business owner, such as a game room, entertainment room, and scambling room, etc.: Provided, That if the suspect makes a false statement on his/her own as an actual business owner, he/she does not constitute a crime of escape from a criminal suspect: Provided, That if the suspect makes a statement on his/her actual business owner to receive monetary benefits, etc. and exercises control over his/her actual business owner, he/she will be subject to punishment on his/her behalf, such as hiding the actual business owner and acting on his/her behalf (hereinafter referred to as a "scamball president"). Furthermore, the statement made as an actual business owner is made by actively false or by presenting false materials, and thereby, the investigation agency can also constitute a crime of escape from a criminal.

Article 151 of the Criminal Act

Defendant

Defendant

Law Firm Chungcheong, Attorneys Kim Yong-soo et al.

Seoul Northern District Court Decision 2009No767 Decided September 29, 2009

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

1. Judgment on the ground of appeal as to the act of aiding and abetting an offender

A. As to the first ground for appeal

The gist of this part of the grounds of appeal is that the court below erred in the selection of evidences or fact-finding which belong to the exclusive jurisdiction of the court below, and the court below did not err in violating the rules of evidence as otherwise alleged in the grounds of appeal. Thus, the above ground of appeal cannot be a legitimate ground of appeal.

B. Regarding ground of appeal No. 2

In investigating a criminal case, an investigative agency has the right and duty to confirm the suspect and collect and investigate objective evidence to acknowledge the suspected facts regardless of the statement of the suspect or witness. Thus, even if a witness was investigated by an investigative agency and made a false statement at the investigative agency without knowing the facts known to him/her, it does not constitute a crime of attempted crimes unless it makes it difficult or impossible to detect or arrest the criminal by actively entering the investigative agency (see Supreme Court Decision 2002Do5374, Feb. 14, 2003, etc.). This legal principle applies to cases where a suspect silents or makes a false statement about an accomplice at the investigative agency (see Supreme Court Decision 2007Do11377, Dec. 24, 2008, etc.).

Therefore, even if a criminal suspect who is investigated by an investigative agency on suspicion of violation of the Game Industry Promotion Act and gambling openings, etc. makes a false statement, even though he/she was an employee, not an actual business owner, such as a game room, entertainment room, and scam room, it does not constitute a crime of escape against the criminal even if he/she made a false statement on his/her actual business owner: Provided, That if the criminal suspect makes a false statement on his/her own as an actual business owner, he/she does not constitute a crime of escape against the criminal suspect, such as hiding the actual business owner and taking charge of the role to be punished on behalf of him/her when he/she puts down control, etc.

According to the reasoning of the judgment below, the court below found facts as stated in its reasoning based on the evidence of employment, and determined that, in light of the following facts, the defendant's statement made to the investigation agency by Nonindicted 3 was made to operate the game of this case with Nonindicted 1 and Nonindicted 2 and to employ Nonindicted 3 as the head of the branch office through Nonindicted 2; the defendant completed the business registration of the game room in the name of Nonindicted 3; and the defendant paid a monthly salary of 2.5 million won to him; and Nonindicted 3 was punished by the defendant and Nonindicted 2 before he was investigated by the prosecutor before he was investigated by the prosecutor, he demanded a fine to be paid on behalf of the defendant and the defendant were asked to answer the answer; and he was made a false statement concerning the operation process of the game room, financial source, the process of purchasing the game machine, and the process of concluding the building lease contract, it was reasonable to deem that the defendant's statement made to the investigation agency was a false statement that he actually carried on business and caused the criminal to escape, thereby making it difficult to establish or arrest the criminal.

In light of the above legal principles and records, the above fact-finding and decision of the court below is just, and there is no error in the misapprehension of legal principles as to the establishment of crime of escape as alleged in the grounds of appeal

The Supreme Court precedents cited in the ground of appeal (Supreme Court Decision 2007Do1137 Decided December 24, 2008, Supreme Court Decision 2009Do6953 Decided September 24, 2009) are different from the case in question, and it is not appropriate to invoke the case in this case.

2. Judgment ex officio on the violation of the Game Industry Promotion Act

Article 2 Subparag. 1 of the Game Industry Promotion Act (amended by Act No. 8247, Jan. 19, 2007; hereinafter “Game Industry Promotion Act”) defines game products as “video products produced so that they can play a game using data processing technology, such as computer programs, or machinery and apparatus to enhance the use of leisure time, learning, and physical effects, etc., or apparatus and apparatus produced for the main purpose of using such video products incidental thereto” Provided, That in cases falling under “speculative game products”, a person who provides a speculative game product for public use is excluded from game products, and thus, a person who provides a speculative game product for public use is not “game products related business operator,” and thus, is not subject to each subparagraph of Article 28 of the Game Industry Promotion Act. Accordingly, it should be recognized that the Defendant was not a speculative game product provided for the purpose of applying Article 28 Subparag. 3 of the Game Industry Act to the Defendant. 3.

Examining the reasoning of the judgment below, the court below determined that the crime of violation of the Game Industry Act (Article 44(1)1-2 and Article 28 subparag. 3 of the Game Industry Act) is established by promoting speculation by providing free gifts, etc. to the defendant without confirming that the game product of this case does not constitute a speculative game product. In so determining, the court below erred by misapprehending the legal principles on the Game Industry Act.

3. Conclusion

Of the judgment below, the part of the violation of the Game Industry Act due to the encouragement of speculation by providing free gifts, etc. is reversed as above, and the above part is a concurrent crime relationship between the violation of the remaining Game Industry Act and the escape of criminals, and the former part of Article 37 of the Criminal Act, and thus, the judgment of the court below cannot be reversed in its entirety.

Therefore, the judgment of the court below is reversed, and the case is 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 on the bench.

Justices Min Il-young (Presiding Justice)