Defendant

Defendant

Lee Jin-vi

Attorney Kim Young-young et al.

Seoul Eastern District Court Decision 2004 High Court Decision 491 Delivered on February 15, 2005

The judgment of the court below is reversed.

The sentence of sentence against the defendant shall be suspended.

Seized evidence 1 through 5 shall be confiscated from the accused.

1. Summary of grounds for appeal;

A. Error of mistake

If the defendant sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet sweet

B. Legal principles

The defendant's "wait game machine" established in a game room does not fall under the "act of providing free gifts without the method determined and announced by the Minister of Culture and Tourism" under subparagraph 3 (b) of Article 32 of the Sound Records, Video Products and Game Software Act, even if the defendant falls under this case, since the game machine classified before the Minister of Culture and Tourism announced the "standard for handling free gifts at a game room" as of February 9, 2002 and there is no restriction on the method of providing such free gifts, the court below found the defendant not guilty of the act of offering free gifts in violation of the principle of punishment on the ground that the defendant's act of offering free gifts is not in violation of the principle of punishment or in violation of the law prior to the execution of the law, since the defendant's act of offering free gifts is not a "act of offering free gifts without the method determined and announced by the Minister of Culture and Tourism" among questioning methods related to the method of offering free gifts to the Minister of Culture and Tourism.

C. Unreasonable sentencing

The sentence (one million won of fine) imposed by the court below against the defendant is too unreasonable in consideration of all the circumstances.

2. Determination:

A. Judgment on the assertion of mistake of fact

In light of the fact that the prior meaning of a gift is ① a thing added to a product, or ② a thing that is sold by a group to a customer or a thing that is sold as a gift, the meaning of an act of offering gift stipulated in Article 32 subparag. 3 of the Sound Records, Video Products and Game Software Act can be seen as “an act of offering goods or securities, etc. to a game user through a game.” According to the evidence duly examined and adopted by the court below, the defendant's act of offering gift under Article 32 subparag. 3 of the Sound Records, Video Products and Game Software Act can be seen as “an act of offering goods or securities, etc. to a game user through a game.” The defendant's act of offering gift under Article 32 subparag. 3 of the Sound Records, Video Products and Game Software Act is sufficient to recognize that the defendant's act of offering game products by installing a game "weboard game machine" in the game room operated by the defendant with money in turn and continuously inserting it.

B. Judgment on misapprehension of legal principles

(1) Relevant legislation

Sound Records, Video Products and Game Software Act

Article 32 (Matters to be Observed by Distribution-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business-Related Business

3. No business operator of a game providing business shall provide free gifts falling under any of the following items, which may encourage speculation or have a harmful effect on juveniles:

(a) Providing free gifts other than those determined and publicly announced by the Minister of Culture and Tourism;

(b) Providing free gifts without using such a method as determined and publicly announced by the Minister of Culture and Tourism;

Standards for dealing with free gifts in a game providing establishment.

1. Objectives;

The purpose of the Sound Records, Video Products and Game Software Act is to promote the development of game providing establishments into a sound cultural space by preventing confusion and speculative acts caused by the provision of free gifts by clarifying the types of free gifts, the scope of prices, methods of provision, etc. which have been placed on the high seas in game providing establishments.

2. Price of free gifts:

The value of one free gift shall not exceed 10,000 won in the case of a game product for total use, and 20,000 won in the case of a game product for 18-year-old use (referring to a price determined by comparing the same product or similar product sold at a general retail store without asking any person for import, mass purchase, or direct purchase from a manufacturer).

3. Types of premiums:

Free gifts shall not be installed or provided with any of the following articles that do not deviate from the scope of ordinary souvenirs, such as phrases, sys, characters, and X-glass, which are not harmful to minors:

(a) Drugs (including hallucinogenic substances);

(b) Books, photographs, sound records, video products, clothing, other video works, etc. that stimulate sexual self-defense;

(c) Coins, coaches, telephone cards, lottery tickets, etc.;

(d) In cases of game products, which are harmful to minors, such as media harmful to juveniles and drugs harmful to juveniles prescribed by the Juvenile Protection Act;

(e) Other goods which are feared to undermine public morals and customs;

4. Methods of providing premiums:

(a) The number of premiums provided as a result of a single game shall be limited to one;

(b)The premiums shall be the same as the premiums indicated earlier (in front of the games).

(c)not exhibit any thing different from the premiums for advertising.

(d)in the case of a mechanical structure game apparatus which provides free gifts in a lump sum, give free gifts in accordance with this criteria.

5. Time of enforcement;

These criteria shall enter into force on October 25, 199.

Standard for handling of light cars at game providing establishments (No. 2002-2, Ministry of Culture and Tourism announced on February 9, 2002, amended on December 30, 2002, No. 2002-18, Ministry of Culture and Tourism announced on December 30, 2002)

1. Objectives;

The purpose of promoting the sound operation of a game providing establishment, preventing speculative acts, and protecting juveniles by prescribing standards for handling free gifts provided by a game providing establishment.

2. Types of premiums:

(a) The following types may be provided as free gifts: Provided, That such types shall not be displayed or provided as securities (excluding books and cultural products, national tourist merchandise tickets, excluded from national tourist merchandise tickets, and national tourist merchandise tickets, introduced at the time of amendment on December 30, 2002) or bail, precious metal (including gold 14K or more), life objects, media harmful to juveniles, or other goods, etc. which may undermine good customs and customs, which may be detrimental to encourage speculative activities through the provision of free gifts:

(1) Toys, phrases, character products, cultural products, tourist souvenirss, liquid saces;

(2) Book gift certificates, cultural gift certificates, national tourist gift certificates, and hotel facility rights under the Tourism Promotion Act (the introduction of national tourist gift certificates on December 30, 2002 at the time of amendment).

(c) Goods generally distributed in daily life, such as clothing and daily necessities;

(b)The value per gift shall not exceed 10,000 won in the case of a “total user” game product and 20,000 won in the case of a “18-year-old user” game product: Provided, That in the case of a general game establishment in hotel establishments under the Tourism Promotion Act, the right to use hotel facilities may be provided in the case of a “18-year-old user” game product. In this case, the term “the market price during the market” means a price that is recognized to be compared with the same product or similar product sold at a general retail store without asking any method of purchase, etc.

3. Methods of providing free gifts:

(a) He/she may provide free gifts to customers according to the result of a game, only for the game classified in a state with the function of paying free gifts at the time of the initial rating;

(b) No premiums shall be exchanged or arranged for money exchange.

(c) No premiums shall be exchanged or provided with free gifts that deviate from the category of premiums accumulated in the number of premiums;

(d)shall not exhibit or keep free gifts, other than the types and prices of free gifts provided in accordance with standards for dealing with free gifts;

4. Time of enforcement;

(a) This notice shall enter into force on the date of publication;

(b) previous Ministry of Culture and Tourism Nos. 2002-2 ( February 9, 2002) shall be abolished on the date this notice enters into force.

(2) Determination of legality of the act of offering the gift of this case

(A) The legal effect and relevant provisions of the standards for free dealing of game software establishments (public notice to the Ministry of Culture and Tourism);

The standard for handling free gifts at a 'game providing establishment' (which was enacted by the Ministry of Culture and Tourism No. 2002-2 on February 9, 2002 and amended by the Presidential Decree No. 2002-18 on December 30, 2002; hereinafter referred to as the "public notice of this case") pursuant to the delegation of Article 32 subparagraph 3 of the Sound Records, Video Products and Game Software Act, it seems that the public notice of this case does not go beyond the limit of the delegation of the statutes as it encourages the types and methods of providing free gifts within the scope of the purpose of preventing the acts of providing free gifts which may affect juveniles, or to prevent the acts of providing free gifts which may affect juveniles, and therefore, the public notice of this case has the effect of external binding legal orders by supplementing the contents of the above statutes.

Before the announcement of this case was made on February 9, 2002, there was no provision to the effect that only the game products classified as original gift payment function can be provided with free gifts, as seen earlier. However, since the announcement of this case was enacted, the above restriction was provided for from the enactment of the announcement of this case.

(b)the legal effects and relevant contents of the questionnaire made by the Minister of Culture and Tourism;

In the inquiry of the Minister of Culture and Tourism on March 22, 2002 (the trial record 21,22) of the instant public notice, the Minister of Culture and Tourism may provide premiums as before the public notice of February 9, 2002, but may not provide books, merchandise coupons, or merchandise coupons. However, in order to provide books, merchandise coupons, or merchandise coupons, it is possible to obtain a review by attaching a premium payment device.” The Ministry of Culture and Tourism’s public notice of the standards for free gifts handling of February 9, 2002 can provide premiums only for the game products classified in the form of a premium payment device: Provided, That if premiums are to be provided in the game products without a premium payment device, it is stated that the Korea Media Rating Board’s review should be conducted in the form of a premium payment device.

The above inquiry inquiry cannot be deemed to be an external binding law that is not inconsistent with the guidelines of the Minister of Culture and Tourism. Therefore, if the part of the inquiry inquiry is a game product rated before the public notice of this case, which is classified as a game product before the public notice of this case, and the purport of the purport of the provision of Article 32 subparag. 3 of the Sound Records, Video Products, and Game Software Act is stated to the effect that it is unnecessary even if it is not equipped with a premium payment device or it is provided in a manner contrary to the original method of using the game product at the time of its initial classification, the purport of the provision of Article 32 subparag. 3 of the Sound Records, Video Products, and Game Software Act is to strictly limit the types and methods of giving gift in order to promote the soundness of the game room and prevent speculation. Furthermore, in light of the main text of the above inquiry inquiry inquiry inquiry, if it is intended to provide premiums in the form of a game product rated before the public notice of this case, the proviso of the Korea Media Rating Board attached with a premium payment device shall be interpreted to the effect.

(C) Determination of legality of the Defendant’s act of offering free gifts

On July 29, 199, the Defendant’s “waton Forest” game software was classified by the Korea Media Rating Board to put a medal with No. 9907-A29 on July 29, 199 in the form of being sealed outside the game machine (the trial record 31,62 pages). Meanwhile, as seen earlier, the Defendant provided free gifts to customers by inserting free gifts, such as a thrower, key, and knife, etc., in the instant game machine, and then putting such premiums out of the game machine.

On March 22, 2002, the questioning letter made by the Minister of Culture and Tourism on March 22, 2002, it does not appear that the Defendant’s act of providing free gifts in a way different from the original classification without attaching a premium payment device in the business after the public announcement of this case. According to the contents of the questioning letter made by the Minister of Culture and Tourism on March 22, 2002, the Defendant’s act of providing free gifts in a way different from the original classification method, and according to the contents of the questioning letter as seen earlier, the Defendant should have attached a premium payment device to offer “waston game” game with the implementation of the public announcement of this case. (The inquiry letter made by the Chairperson of the Korea Media Rating Board on October 4, 2004; the purport of the inquiry letter made by the Defendant against the head of Gwangjin-gu Seoul Administrative Court No. 2004Guhap4512, Apr. 27, 2004; and the purport of the inquiry statement made by the Chairman of the Korea Media Rating Board.

Therefore, the defendant's above act of offering free gifts is illegal, and this part of the defendant's assertion is without merit.

(3) Determination as to the defendant's assertion that there is no awareness or possibility of expectation of illegality

The Defendant asserts to the effect that there is no possibility for the Defendant to be aware of illegality or to make a lawful act, since the Defendant provided premiums in the manner as above, among the questions and answers made by the Minister of Culture and Tourism, in trust and in trust with the entries of the portion of the association to be used for the purpose of the inquiry, and thus, there is no possibility for the Defendant to be aware of illegality. The Defendant’s interpretation that the part of the above inquiry inquiry to be used to allow the Defendant’s act of offering free gifts is in violation of Article 32 subparag. 3 of the Sound Records, Video Products and Game Software Act. Furthermore, according to the above part of the inquiry inquiry, according to the above part of the judgment below, the Defendant should have gone through a retrial by attaching a premium payment device to the game “waston” game machine. However, the above inquiry inquiry is interpreted only in the direction favorable to the Defendant, and in light of this, it cannot be said that there is no reasonable ground for the Defendant to believe that his act was not a crime under the law, or that there is no possibility for the Defendant’s legitimate act.

(4) Judgment on the assertion that the principle of no punishment is violated

The defendant asserts that the act of providing premiums to the "wait game" game of this case which was classified before the public notice of this case was enforced violates the standard of the current public notice of this case. However, the principle of punishment in minor pay refers to the principle of punishment in penalty only to the act that was conducted after the public notice of this case, and the principle that the previous act cannot be applied retroactively to the act that was conducted after the public notice of this case was enforced. Thus, it does not constitute punishment for the reason that the defendant's act of offering premiums in a manner that was not prescribed in the public notice of this case is against the public notice of this case and higher law. Thus, the defendant's assertion

C. Determination on the assertion of unfair sentencing

On December 11, 2003, the Defendant opened the instant place of business, which was 14th, the Defendant: (a) took the control of the Seoul Eastern Police Station on December 16, 2003, which was 5 days, and was the first offender without any previous conviction; (b) even though the Defendant offered free gifts in a way different from the rated one, it was a kind of less than 5,000 won; (c) although the gift in a game machine was offered without installing a free payment device, it was a kind of less than 5,00 won; and (d) as in the instant case, the game machine in which the method of offering free gifts was at issue is merely a 14th out of the Defendant’s 60 game machine in the game room; and (e) taking into account all the various circumstances, such as the Defendant’s occupation, age, character, environment, motive, means and consequence of the crime, and the circumstances after the crime, the Defendant’s sentence against the Defendant is unreasonable. Therefore, this part of the Defendant’s assertion is justified.

3. Conclusion

Therefore, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the judgment shall be rendered again as follows.

The summary of the facts charged and the evidence admitted by this court are as stated in the judgment of the court below, and they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 50 subparag. 3 and Article 32 subparag. 3 of the Sound Records, Video Products and Game Software Act, and Article 30 of the Criminal Act (Selection of Fine)

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Suspension of sentence;

Article 59(1) of the Criminal Act (Suspension of Punishment: Fine of 1,00,000,000 won per day, and Punishment of 50,000 won per day)

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

Judges Kim full-time (Presiding Judge)