Defendant

Prosecutor

Kim HUm

Attorney Kim Sung-hwan in charge of the original rate

Ulsan District Court Decision 2006Gohap107 Decided September 26, 2006

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

The prohibition on the purchase of free gifts is prescribed to prohibit the reuse of most of the gift certificates provided by a game providing establishment through a neighboring exchange establishment in order to prevent the act of exchanging or arranging the exchange of free gifts in the course of repurchase of free gifts, in particular, in the circumstances where most of the gift certificates provided by a game providing establishment are reusable through a game establishment. Although such duty is stated in the "matters to be observed in the public announcement of free gifts in a game providing establishment" as announced by the Ministry of Culture and Tourism, the act of repurchase of free gifts is premised on the act of repurchase of the right to buy free gifts and providing them as free gifts to customers, and thus it violates the method of offering free gifts, the court below erred by misapprehending the legal principles,

2. Determination

Article 32 of the Sound Records, Video Products and Game Products Act provides that "any person engaged in a game providing business shall not engage in any act falling under any of the following items which may encourage speculation or influence juveniles, (a) provide free gifts other than the types determined and publicly notified by the Minister of Culture and Tourism, and (b) provide free gifts without using the methods determined and publicly notified by the Minister of Culture and Tourism." Article 50 subparagraph 3 of the same Act provides that "any person who violates the provisions of subparagraph 3 of Article 32" shall be punished. Article 32 subparagraph 3 of the same Act provides that "the standards for handling free gifts of a game providing business establishment (Article 205-9 of the Ministry of Culture and Tourism notification)" publicly notified by the Minister of Culture and Tourism pursuant to subparagraph 3 of Article 32 of the same Act provides that "any person who conducts a game providing business shall not exchange or arrange a substitute product or repurchase free gifts by providing it as one of the matters to be observed by a person engaged in a game providing business."

In light of the language and text of the above provision, the court below found the defendant not guilty of the facts charged in this case on the ground that the act of re-purchase (re-purchase) provided by the Minister of Culture and Tourism cannot be deemed as a violation of the provisions on the type or method of provision of free gifts to be observed when the game providing business operator re-purchases free gifts provided to the game providing business operator. Thus, the court below found the defendant not guilty of the facts charged in this case on the ground that the court below's determination is just in light of the records, and it did not err by misapprehending the legal principles on the type or method of provision of free gifts which the game providing business operator may provide to the game providing business operator under Article 32 subparagraph 3 of the Sound Records, Video Products and Game Products Act and the act of providing free gifts which could have harmful effects on juveniles in order to effectively regulate the act of promoting the speculation (re-purchase) provided by the game providing business operator or the act of providing free gifts.

3. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Jong-cheon (Presiding Justice)