Whether a product provided for the purpose of attracting customers, regardless of the outcome of a game, falls under “lights” regulated by Article 32 subparag. 3 of the former Sound Records, Video Products and Game Products Act (negative)

Article 32 subparag. 3 of the former Sound Records, Video Products and Game Products Act (repealed by Article 3 of the Addenda to the Promotion of Motion Pictures and Video Products Act, No. 7943 of Apr. 28, 2006) merely limits the types of premiums which can be provided as a result of a game in the “type of premiums” in the “type of premiums” as announced by the Minister of Culture and Tourism (No. 2005-9 of Jul. 6, 2005). Article 32 subparag. 3 of the former Sound Records, Video Products and Game Products Act (repealed by Article 3 of the Addenda to the Promotion of Motion Pictures and Video Products Act, No. 7943 of Apr. 28, 2006), the purpose of which is to promote special speculation or harmful acts to juveniles in the game providing establishments is to prevent customers from being engaged in economic activities, and the type or method of providing premiums regardless of such inducement constitutes speculative acts or juvenile objects, and it does not constitute “the provision of premiums to customers or users of the same game products” without justifiable reasons.

Article 2 subparagraph 9 (see Article 2 subparagraph 6 of the current Act on the Promotion of Game Industry) and Article 32 subparagraph 3 (see Article 2 subparagraph 3 of the current Act on the Promotion of Game Industry) of the former Sound Records, Video Products and Game Products Act (repealed by Article 3 of the Addenda to the Act on the Promotion of Motion Pictures and Video Products, Act No. 7943, Apr. 28, 2006)

[Judgment of the court below]

Kimpo-market

October 23, 2006

1. The defendant's disposition of business suspension of 30 days (from May 29, 2006 to June 27, 2006) against the plaintiff on May 9, 2006 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a game providing business operator who operates a general game room (hereinafter “instant game room”) with the trade name “(trade name omitted) gameland” from around December 10, 2005 to (3) Kimpo-si (detailed address omitted).

B. The Plaintiff, on the entrance door of the instant game room, was exposed to police officers belonging to the Kimpo Police Station around December 31, 2005, who carried out business in the state of keeping and displaying the said goods under the name of “the audit event at the end of 2005,” which called “the date of audit at the end of 2005,” which offers a drum laundry, drum laundry, and drum laundry to pay them for the said goods.

C. At the time of such detection, the Plaintiff intended to offer the same kimchi cooling, etc. through lottery among customers admitted to the game site as events, publicity and promotion events to attract more customers in the opening of the game of this case. However, upon detection by police officers, the Plaintiff returned the same premiums to Kimpo, a purchasing agency, on January 2, 2006, without providing the said premiums to customers.

D. On May 9, 2006, the Defendant issued a disposition ordering the Plaintiff to suspend its business 30 days (30 days from May 29, 2006 to June 27, 2006) by applying Article 32 Subparag. 3 and Article 39(1)5 of the Sound Records, Video Products and Game Products Act (hereinafter “the Act”) on the ground that the Plaintiff’s act in Paragraph (b) constituted a violation of the “standards for Handling Gifts in Game Establishments” (hereinafter “instant notice”) amended and publicly announced by the Ministry of Culture and Tourism No. 2005-9 on July 6, 2005 (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1-2, Gap evidence 2-2, Eul evidence 1-2 and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Non-existence of grounds for disposition

The Plaintiff, as a single customer’s events, promotional events, and promotional events to attract more customers while running the game of this case, intended to offer a kimchi cooling house, etc. by drawing among customers admitted to the game site. This does not violate Article 32 subparag. 3 of the Act and a premium payment standard, regardless of the outcome of the game.

(2) A deviation from or abuse of discretionary power

In light of the circumstances leading up to the Plaintiff’s violation of the Act and the fact that there are circumstances that may consider the violation of the Act, such as failure to provide the gift in fact, and if the instant disposition is maintained as it is, the economic damage that the Plaintiff would incur is very large, the instant disposition is unlawful by abusing and abusing discretion.

B. Relevant statutes

4. Sound Records, Video Products and Game Software Act

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

9. The term "game providing business" means any of the following businesses that provide game products so that the public may use such products: Provided, That the same shall not apply to cases where a person provided with speculative instruments and performs speculative acts under the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc., and to cases where a person provided with speculative instruments and conducts casino business under the Tourism Promotion Act is engaged in other business unrelated to game products, and cases falling under the type, method, etc. of game products prescribed by Presidential Decree, where a person provided with other business and conducts game products for

(b) General game room business: A business providing the general public for use by installing game products classified and installing game products with 18-year-old game products;

Article 32 (Matters to be Observed by Distribution-Related Businessman)

A person (hereinafter referred to as "distributor") who runs the business referred to in subparagraphs 8 through 12 of Article 2 (limited to the business that includes the business falling under subparagraphs 8 through 11 in the case of a combined distribution and provision business) shall comply with the following matters:

3. No business operator of a game providing business shall conduct any of the following acts of providing free gifts which may instigate speculation or have influence harmful to juveniles:

(a) Providing premiums other than kinds determined and announced by the Minister of Culture and Tourism;

(b) Providing premiums without using such methods as determined and announced by the Minister of Culture and Tourism;

Article 39 (Revocation, etc. of Registration)

When a business operator falls under any of the following subparagraphs, the Mayor/Do Governor or the head of a Si/Gun/Gu may issue an order to close the relevant business or revoke registration, or order the suspension of the relevant business for a fixed period not exceeding six months: Provided, That where the business operator falls under subparagraph 1 or 7, he/she shall issue an order to close the business or revoke registration:

5. Where he violates the matters to be observed by the businessman under Article 32;

【Enforcement Regulations of the Sound Records, Video Products and Game Software Act

Article 9 (Criteria, etc. for Administrative Dispositions)

(1) The criteria for administrative dispositions under Article 39 of the Act shall be as shown in attached Table 3.

[Attachment 3]

Criteria for administrative disposition (related to Article 9(1));

2. Individual standards:

본문내 포함된 표 위반사항 근거 법령 행정처분기준 1차 위반 2차 위반 3차 위반 마. 법 제32조의 규정에 의한 유통관련업자의 준수사항을 위반한 때 ？ ？ ？ ？ (3) 게임제공업자가 문화관광부장관이 정하여 고시하는 종류 외의 경품을 제공하거나 문화관광부장관이 정하여 고시하는 방법에 의하지 아니하고 경품을 제공한 때 법 제39조 제1항 제5호 영업정지 1월 영업정지 2월 영업폐쇄 등록취소

director Standard for free dealing of game software establishments (Public notice No. 2005-9 of July 6, 2005)

2. Types of premiums:

Types of free gifts which may be provided as a result of the game are as follows:

(1) Toys, phrases, character products, cultural products, tourist souvenirs, liquid products, and saces

(2) Clothing, daily necessities, and other goods generally distributed in daily life: Provided, That media products harmful to juveniles, harmful drugs, and goods provided for in the Juvenile Protection Act shall be excluded herefrom.

(3) Plots for free exchange (limited to game products permitted to be used as a whole)

(4)The gift certificates designated by the Korea Game Industry Development Institute (which shall be limited to those for which age 18 is used).

3. Standards for granting premiums:

(a) Standards for the limit of free gifts and game products eligible for provision of free gifts are as follows:

(1) All game products permitted for use: within 10,000 won (based on the market price).

(2) Game products permitted for use by 18 years of age: within 20,000 won (based on the market price).

4. Methods of providing premiums:

(a)The premiums shall be provided only through a premium payment system approved at the time of classification by a rating classification agency, and in particular, in the case of a game product whose age is 18, no persons related to the place of business, etc. shall exchange or provide free gifts without using the premium payment system;

5. Matters to be observed in publishing free gifts;

(b) not exhibit, keep, exchange or provide any goods other than the premiums provided;

(c) Markets:

(1) As to the existence of the grounds for disposal, it is reasonable to interpret that the issue includes only the free gifts provided according to the outcome of the game using the game products installed in a game providing establishment, or whether the free gifts provided by the phenomenon and lottery which are separately conducted regardless of the outcome of the game as well as the free gifts provided pursuant to Article 32 subparag. 3 of the Act and the instant public notice by delegation.

(2) We examine the following facts: “The kind of gift which can be provided as a result of the game” in the notice of this case only limits the “type of gift” which is irrelevant to the outcome of the game; “The purpose of Article 32 subparag. 3 of the Act is to encourage customers to engage in a game providing business, or prevent harmful acts to juveniles.” The game providing business operator also has the freedom of business to induce customers to deal with the game providing business, and provides gift regardless of its inducement result, regardless of its inducement, if the type or method of offering is contrary to the relevant laws and regulations regulating the game providing, or goes beyond the legitimate scope in light of normal transaction practices, the act of offering the said gift to the general public is not against the above provision of the game providing business without any condition, and it does not constitute “the provision of the game providing business of this case” under Article 32 subparag. 3 of the Act, and thus, it does not constitute “the provision of the game providing business of this case’s game products to customers, regardless of the outcome of the provision of the game providing business of this case’s offer and its own contents.”

3. Conclusion

Thus, the plaintiff's claim of this case seeking the revocation of the disposition of this case is without merit, and therefore, it is accepted, and it is so decided as per Disposition.

Judges Yang Sung-ju (Presiding Judge)