[1] In addition to prohibiting “similar act” under Article 26(1) of the National Sports Promotion Act (amended by Act No. 11309, Feb. 17, 2012; hereinafter “the National Sports Promotion Act”) as amended by Act No. 11309, Article 26(2) of the National Sports Promotion Act newly established a provision prohibiting acts under paragraph (1) in relation to Paragraph (2), and in particular, prohibiting acts under subparagraph 1 and punishing the violator.

[2] In the system of issuing sports betting tickets by means of information and communications networks, the act of securing game money in advance, which is indispensable for the purchase of sports betting tickets, through the system operator, and filling it to users in return for money constitutes an act of providing the above issuing system for public use among the acts under Article 26 (2) 1 of the National Sports Promotion Act (affirmative), and whether only the operator who has the authority to manage the above issuing system can provide it for public use (negative) / Whether the above issuing system can be interpreted as having to be considered in interpreting the above acts, etc.

[3] The case holding that in a case where the Defendants were indicted of violating the National Sports Promotion Act by operating an intermediary through their acquisition of betting money, in collusion with Gap et al., by entering into an intermediary contract with Gap et al. and opening an intermediary site, by soliciting many unspecified Koreans as its members, and by allowing members to participate in the betting on the tickets of various sports games provided through the overseas sports betting site, and thereby causing them to participate in the betting amount, the case holding that the Defendants’ act constitutes "an act of providing a system that issues sports betting tickets, etc. using information and communications networks for the public to use" under Article 26 (2) 1 of the same Act

[1] Article 26 of the former National Sports Promotion Act (amended by Act No. 11309, Feb. 17, 2012) provides, “No person, other than the Seoul Olympic Sports Promotion Foundation or an entrusted business entity, may issue sports betting tickets or engage in any similar activity.” Article 53 of the same Act provides, “Any person who violates Article 26 shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 1.5 million won.” However, upon the amendment by Act No. 11309, Feb. 17, 2012, the requirements for similar acts were strict, the punishment was strengthened, and any provision prohibiting similar acts was newly established.

Specifically, Article 26 (1) of the current National Sports Promotion Act (hereinafter referred to as the “Act”) provides that “any person, other than the Seoul Olympic Sports Promotion Foundation or an entrusted business entity, shall not engage in an act of providing property or property benefits (hereinafter referred to as “similar act”) to a person who issued sports promotion betting tickets or similar things (including issuance by means of information and communications networks) and predicted the enemy (hereinafter referred to as “similar act”). In addition, Article 26 (2) of the Act provides that “any person shall not engage in any of the following acts.” Article 26 (2) of the Act provides that “Any person shall not engage in an act of providing sports promotion betting tickets or similar things by means of information and communications networks under Article 2 (1) 1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., or providing a system that issues sports promotion betting tickets or similar things to the public for use” (Article 2 (1) 1; hereinafter referred to as “act of providing information related to sports games”; Article 26 (1) through (3) 7) or similar act as a fine not exceeding 300 million won.

In addition to the prohibition of Paragraph 1 of Article 26 of the amended Act, the purport of Paragraph 2 of Article 26 is as follows: (a) newly establishing a provision prohibiting each act in relation to Paragraph 1 in Paragraph 2 of this Article is as follows.

Today, information and communications technology has developed rapidly on a day, and the new technology of fish is replaced with more new technology than today, and this phenomenon is also the same as the illegal sports gambling business. In comparison with the issuance of sports betting tickets in the form of paper, the current sports gambling business using information and communications network is able to easily avoid its regulation by linking it with the information and communications network in a country with a low level of regulation by exceeding the spatial constraints compared with the operation of the business under the spatial constraints. In addition, in the process of running from virtual spaces, multiple systems are combined in the process from production to operation, and many people are involved in individual actions.

The legislative intent of the amendment is to effectively and effectively prevent the operation of illegal sports gambling business by regulating the situation in which illegal sports gambling business is developed in order to avoid existing regulations in the above reality, and by prohibiting acts in subparagraphs 1, 2, and 3 closely related to those acts even though they did not reach 1 acts, and punishing those who violated them.

In particular, prohibiting the act of subparagraph 1 and punishing the violator is to eradicate the act of Paragraph 1 by blocking the act of designing, manufacturing, distributing the illegal sports gambling site or providing it to the public for use, which can be achieved by Paragraph 1.

[2] [Majority Opinion] The subject of punishment under Article 26(1) of the National Sports Promotion Act (hereinafter “Act”) and Article 47 Subparag. 2 of the Act, which is a penal provision for a person who committed an act of prohibiting the act of issuing sports betting tickets or similar things (including issuing sports betting tickets by means of information and communications networks) and providing property or property benefits (hereinafter “similar act”) to a person who correctly predicted the result, constitutes the operator of an illegal sports gambling site equipped with a system that issues sports betting tickets and the co-offenders of such operator.

The elements of Paragraph (1) acts are both “issuance of sports betting tickets” and “providing property or financial benefits to the person who correctly predicted the outcome.” As such, only issuing sports betting tickets, etc. and not providing property or financial benefits to the person who correctly predicted the outcome, or only providing property or financial benefits to a person who correctly predicted the outcome without issuing sports betting tickets, the perpetrator of Paragraph (1) cannot be punished. Ultimately, only where the aforementioned two elements are functionally controlled, it may be punished as a co-principal of Paragraph (1) acts.

If a person who is an accomplice of the act under paragraph (1) commits an act under Article 26 (2) 1, 2, or 3 of the Act (hereinafter “the act under subparagraphs 1, 2, and 3”), the accomplice of the act under paragraph (1) is established in accordance with the general provisions of the Criminal Act on the accomplices, and the crime under subparagraphs 1, 2, and 3 is absorption. Ultimately, the prohibition and penal provisions on the acts under subparagraphs 1, 2, and 3 are prescribed in the general provisions of the Criminal Act on the accomplices. In short, even if the person cannot be punished as an accomplice of the act under paragraph (1), the person who causes or aids the act under paragraph (1) may be punished.

Compared to Paragraph 1, Subparag. 1’s act ought to be construed to be aimed at regulating the act closely related to: (a) the act of issuing sports betting tickets, etc., which are the constituent elements of Paragraph 1’s act, and providing property or property benefits to persons who correctly predicted the outcome thereof, even though it did not reach the functional control of each principal offender; (b) however, such interpretation ought to be construed as regulating the act. This is reasonable in that: (c) the “design, manufacture, and distribution” prescribed as the type of act under subparagraph 1 can be deemed to be defined as a separate constituent element by expanding the scope by embodying the “act of issuing sports betting tickets, etc.” as the type of act under subparagraph 1.

In full view of the legislative purport, contents, the legal system that regulates illegal sports gambling business, and the principle of interpreting penal provisions, etc. of the system that issues sports betting tickets through information and communications networks, the act of securing in advance the game money that is indispensable for the purchase of sports betting tickets through the system operator and filling it to users in return for money can be deemed as the act of providing the above issuing system among the acts in subparagraph 1 for public use. This is because the act of filling game money can be evaluated as an essential function for public use of the above issuing system.

In addition, it cannot be deemed that only the operator who has the authority to manage the above issuing system can provide it to the public, and even if the operator is not the operator with the authority to manage the above issuing system, the above issuing system can be provided for the use of the issuing system by securing and filling the essential game money for the use of the issuing system.

As such, in the interpretation of Subparag. 1, a system that issues sports betting tickets using information and communications networks has become able to perform the full functions of a single issuing system by avoiding spatial constraints and regulations along with the development of information and communications technology.

[Dissenting Opinion by Justice Kwon Soon-il, Justice Lee Ki-taik, Justice Kim Jae-hyung, Justice Lee Dong-won, and Justice Noh Jeong-hee] The Majority Opinion is contrary to the language and text of Article 26(2)1 of the Act, or extends or analogicalizes the meaning of the language and text to

Article 26(2) of the Act provides that “any person shall be prohibited from doing any of the following acts.” Article 26(2)1 of the Act provides that “The act of designing, manufacturing, distributing, or providing a system that issues sports betting tickets by means of information and communications networks to the public for use.” According to the language and text of the above provision, the object of “design, manufacturing, distributing, or providing a system that issues sports betting tickets by means of information and communications networks” is “the system that issues sports betting tickets by means of information and communications networks.” In other words, the above provision prohibits the act of designing, manufacturing, distributing, or offering a system that issues sports betting tickets by means of information and communications networks. Therefore, not only the system that issues sports betting tickets itself but also the system that issues sports betting tickets to facilitate access to the system that issues sports betting tickets through a separate relay site, and cannot be deemed as falling under the elements of the above provision. This is clear that the above provision prohibits the act of issuing sports betting tickets by viewing that it is subject to the act of designing, manufacturing, or providing them by means of information and communications networks.

[3] In a case where the Defendants were indicted for violating the National Sports Promotion Act by soliciting 16 unspecified nationals as members after concluding a transit contract with the various overseas sports betting sites and allowing them to conduct sports betting on the tickets side of the various sports betting sites provided through the overseas sports betting sites through its relay, the case holding that the Defendants concluded a contract with the operators of the overseas sports betting sites and operated an intermediate site to connect the overseas sports betting sites through links, and exchange the above online sports betting money to the Chinese Chinese currency currency, etc., which is more necessary for purchasing the sports betting tickets at the overseas sports betting sites than that of the above online sports betting sites, and, in particular, the Defendants’ act of providing the above online sports betting tickets to the public is more essential than that of using the overseas sports betting sites, and the Defendants’ act of using the above online sports betting sites as a means of collecting the betting money to the extent that the Defendants’ act of selling the betting money is no more than that of using the overseas sports betting sites, and as such, the Defendants’ act of using the above online sports betting sites as well as the Defendants’ act of issuing the above 20000.

[1] Article 26 of the former National Sports Promotion Act (Amended by Act No. 11309, Feb. 17, 2012; see current Article 26(1), Article 53 (see current Article 47 subparag. 2); Article 26(1) and (2), Article 47 subparag. 2, Article 48 subparag. 4, and Article 49 subparag. 1 of the National Sports Promotion Act / [2] Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) and Article 30 of the Criminal Act; Article 26(1) and (2), Article 47 subparag. 2, Article 48 subparag. 4, and Article 49 subparag. 1 of the National Sports Promotion Act / [3] Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) and Article 30 of the Criminal Act; Article 26 subparag. 1, 46 subparag. 4, and Article 49 of the National Sports Promotion Act

[2] Supreme Court Decision 2016Do18119 Decided January 12, 2017 (Gong2017Sang, 437)

Defendant 1 and one other

Defendants

Attorney Park Byung-chul et al. and seven others

Supreme Court Decision 2017Do13140 Decided November 14, 2017

Seoul Central District Court Decision 2017No4280, 4085 Decided April 27, 2018

All appeals are dismissed.

The grounds of appeal are examined.

1. Summary of the facts charged for the violation of the National Sports Promotion Act and the establishment of gambling spaces, and the proceedings therefor;

A. Summary of the facts charged

The Defendants, in collusion with the non-indicteds, entered into a transit contract with the operator company of the foreign sports betting site (hereinafter collectively referred to as "foreign sports betting site"), such as "○○○ (in English name omitted 1 omitted)," "△△△△ (in English name omitted 2 omitted)," and "△△△△ (in English name 4 omitted)," etc. (hereinafter referred to as "foreign sports betting site"), in which it is impossible to connect with the non-indicteds, entered into a transit contract with the operator company. The Defendants, in which they are equipped with computers and Internet communications equipment, opened and operated the 16-day relay site (hereinafter collectively referred to as "the transit site of this case"), and opened and operated 16-day relays, using the domain name, such as "△△△△," "△△- therein, and the farmland, etc., which are provided through the transit site of this case, and let members participate in various domestic and foreign sports games, thereby acquiring the betting site of this case in advance at the prescribed ratio.

Accordingly, the Defendants conspired with the Nonindicted Party, etc. to provide a system that issues sports betting tickets or similar things (hereinafter “sports betting tickets, etc.”) via information and communications networks for public use, and at the same time, opened a space for gambling for profit-making purposes.

B. Progress of litigation

(1) The prosecutor indicted the Defendants on the violation of the National Sports Promotion Act (such as gambling opening, etc.) as constituting “similar act” as provided by Article 26(1) of the National Sports Promotion Act, and the first instance court and the lower court prior to remand found the Defendants guilty of this part of the facts charged on the grounds as indicated in its reasoning.

(2) The Defendants appealed against the lower judgment prior to remand. The Supreme Court reversed and remanded the entire lower judgment prior to remanding, on the grounds that the instant transit site itself did not issue sports betting tickets, and the facts charged that the public bid relationship with the operators of the foreign sports betting site, which can be seen as issuing, did not constitute “similar act” under Article 26(1) of the National Sports Promotion Act.

(3) After remanding the case, the court below (hereinafter “the court below”) found the prosecutor guilty of the modified charges on the grounds as stated in its reasoning after granting permission to change the facts charged in violation of Article 26(1) of the National Sports Promotion Act to the facts charged in violation of Article 26(2)1 of the National Sports Promotion Act, as shown in the summary of the facts charged.

2. As to the application of the statutes on the violation of the National Sports Promotion Act (Gambling Place, etc.)

A. Legislative history and purport of the relevant provision

Article 26 of the former National Sports Promotion Act (amended by Act No. 11309, Feb. 17, 2012) provides, “No person, other than the Seoul Olympic Sports Promotion Foundation and an entrusted business entity, may issue sports betting tickets or engage in any similar activity.” Article 53 of the same Act provides, “Any person who violates Article 26 shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 15 million won.” However, upon the amendment by Act No. 11309, Feb. 17, 2012, the requirements for similar acts were strict and the punishment was strengthened, and any provision prohibiting similar acts was newly established.

Specifically, Article 26 (1) of the current National Sports Promotion Act (hereinafter referred to as the “Act”) provides that “any person, other than the Seoul Olympic Sports Promotion Foundation or an entrusted business entity, shall not engage in an act of providing property or property benefits (hereinafter referred to as “similar act”) to a person who issued sports promotion betting tickets or similar things (including issuance by means of information and communications networks) and predicted the enemy (hereinafter referred to as “similar act”). In addition, Article 26 (2) of the Act provides that “any person shall not engage in any of the following acts.” Article 26 (2) of the Act provides that “Any person shall not engage in an act of providing sports promotion betting tickets or similar things by means of information and communications networks under Article 2 (1) 1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., or providing a system that issues sports promotion betting tickets or similar things to the public for use” (Article 2 (1) 1; hereinafter referred to as “act of providing information related to sports games”; Article 26 (1) through (3) 7) or similar act as a fine not exceeding 300 million won.

In addition to the prohibition of Paragraph 1 of Article 26 of the amended Act, the purport of Paragraph 2 of Article 26 is as follows: (a) newly establishing a provision prohibiting each act in relation to Paragraph 1 in Paragraph 2 of this Article is as follows.

Today, information and communications technology has developed rapidly on a day, and the new technology of fish is replaced with more new technology than today, and this phenomenon is also the same as the illegal sports gambling business. In comparison with the issuance of sports betting tickets in the form of paper, the current sports gambling business using information and communications network is able to easily avoid its regulation by linking it with the information and communications network in a country with a low level of regulation by exceeding the spatial constraints compared with the operation of the business under the spatial constraints. In addition, in the process of running from virtual spaces, multiple systems are combined in the process from production to operation, and many people are involved in individual actions.

The legislative intent of the amendment is to effectively and effectively prevent the operation of illegal sports gambling business by regulating the situation in which illegal sports gambling business is developed in order to avoid existing regulations in the above reality, and by prohibiting acts in subparagraphs 1, 2, and 3 closely related to those acts even though they did not reach 1 acts, and punishing those who violated them.

In particular, prohibiting the act of subparagraph 1 and punishing the violator is to eradicate the act of Paragraph 1 by blocking the act of designing, manufacturing, distributing the illegal sports gambling site or providing it to the public for use, which can be achieved by Paragraph 1.

B. Principle of interpreting penal provisions

A penal provision shall be strictly interpreted and applied in accordance with the language and text, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. However, a systematic and logical interpretation that clearly expresses the logical meaning of the language and text in accordance with the legal systematic relationship that takes into account the legislative intent and purpose of the relevant provision within the meaning of the possible text is for the interpretation that is the most adjacent to the essential contents of the provision, and is in line with the principle of no punishment without the law (see Supreme Court Decision 2007Do2162, Jun. 14, 2007).

The above interpretation method is, in particular, reasonable in cases where a specific punishment provision is prescribed abstract and comprehensive in order to achieve a clear legislative purpose as in this case. In other words, each act of subparagraphs 1, 2, and 3, including “the act of providing a system that issues sports betting tickets by means of information and communications networks, so that the public can use it.” The reason is to cope with various crimes that change following the development of information and communications technology as acts closely related to the act of Paragraph 1, which are related to the act of Paragraph 1, and is also to cope with various crimes that change according to the development of information and communications technology. Considering the above, the scope of each act of subparagraphs 1, 2, and 3 should be interpreted uniformly.

C. Interpretation of the act of paragraphs (1) and 1

(1) Interpretation of Paragraph (1) acts

The subject of punishment under Article 26(1) of the Act and Article 47 subparag. 2 of the Act, which is a provision prohibiting the act of paragraph (1), are the operators of the illegal sports gambling site equipped with the system that issues sports betting tickets, and their co-offenders (see Supreme Court Decision 2016Do1819, Jan. 12, 2017).

The elements of Paragraph (1) acts are both “issuance of sports betting tickets” and “providing property or financial benefits to the person who correctly predicted the outcome.” Thus, where only issuing sports betting tickets and does not provide property or financial benefits to the person who correctly predicted the outcome, or where providing property or financial benefits to a person who correctly predicted the outcome without issuing sports betting tickets, it cannot be punished as an actor under Paragraph (1) (see the judgment of the case of remanding). Ultimately, only where the aforementioned two elements are functionally controlled, it may be punished as a co-principal under Paragraph (1) act.

(2) Interpretation of No. 1 act

Where a person who is an accomplice of an act under paragraph (1) commits an act under paragraph (1) 1, 2, or 3 as an act of practice, the accomplice of the act under paragraph (1) is established in accordance with the general provisions of the Criminal Act on the accomplices, and the crime under subparagraphs 1, 2, and 3 is absorption (see Supreme Court Decision 2016Do1819, Jan. 12, 2017). Ultimately, the prohibition and penal provisions on each act under subparagraphs 1, 2, and 3 are prescribed to allow a person who, even though it cannot be punished as an accomplice of an act under paragraph (1), commits or assists in the act under paragraph (1).

Compared to Paragraph 1, Subparag. 1’s act ought to be construed to be aimed at regulating the act closely related to: (a) the act of issuing sports betting tickets, etc., which are the constituent elements of Paragraph 1’s act, and providing property or property benefits to persons who correctly predicted the outcome thereof, even though it did not reach the functional control of each principal offender; (b) however, such interpretation ought to be construed as regulating the act. This is reasonable in that: (c) the “design, manufacture, and distribution” prescribed as the type of act under subparagraph 1 can be deemed to be defined as a separate constituent element by expanding the scope by embodying the “act of issuing sports betting tickets, etc.” as the type of act under subparagraph 1.

In full view of the legislative purport, contents, the legal system that regulates illegal sports gambling business, and the principle of interpreting penal provisions, etc. of the system that issues sports betting tickets through information and communications networks, the act of securing in advance the game money that is indispensable for the purchase of sports betting tickets through the system operator and filling it to users in return for money can be deemed as the act of providing the above issuing system among the acts in subparagraph 1 for public use. This is because the act of filling game money can be evaluated as an essential function for public use of the above issuing system.

In addition, it cannot be deemed that only the operator who has the authority to manage the above issuing system can provide it to the public, and even if the operator is not the operator with the authority to manage the above issuing system, the above issuing system can be provided for the use of the issuing system by securing and filling the essential game money for the use of the issuing system.

As such, in the interpretation of Subparag. 1, a system that issues sports betting tickets using information and communications networks has become able to perform the full functions of a single issuing system by avoiding spatial constraints and regulations along with the development of information and communications technology.

3. Review on the instant case

A. The record reveals the following facts and circumstances.

(1) Although it is not impossible for a national to directly access and use a foreign sports betting site, it is difficult for the following reasons:

(1) In order for a national to access a foreign sports betting site by blocking access through major domain names of the foreign sports betting site in Korea, it is necessary for him/her to use the bypass domain name.

② In order to carry out betting on a foreign betting site, it is necessary to charge game money, and foreign currency, such as USD, should be deposited in the foreign betting site in order to charge the game money. A Korean national is unable to deposit foreign currency into the foreign betting site and must do so via the online electronic settlement site. However, in ordinary, the above online electronic settlement site is an English, and the procedure such as photographing and sending a passport is difficult, and it is short in the course of certification procedure, remittance, charging, and exchange, and it is not easy for a Korean national who intends to do gambling to do so directly.

③ A national must remit USD 1 to a foreign country for gambling by directly accessing the overseas sports betting site, and a foreign exchange commission should also be borne, and if it is frequently remitted, it may be contrary to the Foreign Exchange Transactions Act.

(2) The Defendants entered into a contract with the operator of a foreign sports betting site by using the fact that it is difficult for the Defendants to directly access and use the foreign sports betting site, and opened and operated the instant transit site in the following manner:

① Since multiple overseas sports betting sites are linked to the instant relay site, a national can easily access various overseas sports betting sites through links without any need to search and use a bypass domain if he/she opens the instant relay site as a member.

② The Defendants paid a certain amount to the operators of foreign sports betting sites and secured game money. If a member of the transit site of this case deposits in Korea, the Defendants deposited cyber money in the transit site of this case and converted it into game money available at each foreign sports betting site at the request of the members (hereinafter “game money filling”) (hereinafter “cyber money filling”).

③ Members conduct sports betting as above, acquire game money according to the dividend rate if they participate in sports betting, and if they want to exchange money, they deposit money corresponding to the game money with the account of a member.

(3) The Defendants and the operators of the overseas sports betting site distributed profits according to the prior agreement in the following manner:

① The amount deposited by the member of the instant relay site to charge the game money belongs to the Defendants.

② If a member participates in the betting at a foreign betting site, he/she acquires the game money according to the dividend rate, and exchange the game money with money at his/her own expense if the member desires.

③ If a member fails in betting, he/she will lose the game money, and the amount of profit from the game money is divided into a certain proportion between the side of the relay site of this case and the overseas betting site of this case.

④ According to the facts established by the lower court, the profits earned by the Defendants from the said criminal act amounting to KRW 64.6 billion during the commission period of Defendant 1’s criminal act and KRW 1,73.9 billion during the commission period of Defendant 2’s criminal act.

B. After concluding a contract with the operator of a foreign sports betting site, the Defendants operated the instant transit site to connect the foreign sports betting site via links, charge for the game money necessary to use in the foreign sports betting site, and exchange the game money into the Chinese currency. In particular, the filling of the game money necessary to purchase the sports betting ticket issued at the foreign sports betting site is essential function that is indispensable for the use of the foreign sports betting site, and exchange is a critical motive or incentive for the use of the foreign sports betting site. Furthermore, the Defendants were the parties to whom the profits and losses accrued from the gambling outcome of the members who use the foreign sports betting site through the instant transit site. From this perspective, it is sufficient to view the Defendants’ above act as a whole as “providing the system to issue the sports betting ticket through information and communications networks so that the public can use it.”

In addition, the above evaluation cannot be deemed as impeding the fact that the charge of the game money necessary for the use of the overseas betting site is possible by other means without going through the Defendant’s instant transit site.

C. Comparing to other types of acts among the acts in subparagraph 1, the Defendants’ operation of a separate site (the instant relay site) that can connect the foreign sports betting site, charge and exchange game money does not differ from “design, manufacture, and distribute a system that issues sports betting tickets using information and communications networks” in the degree of illegality.

In addition, the Defendants’ act cannot be deemed to be merely an act of mediating or arranging the purchase of sports betting tickets, etc. among the acts in subparagraph 3, which are more minor than that of subparagraph 1, rather than an act of subparagraph 1. For example, an act of providing links to nationals to facilitate access to the overseas sports betting site, or an act of simply introducing a foreign sports betting site may constitute “act of mediating or arranging the purchase of sports betting tickets.” However, such act of subparagraph 3 shall not be deemed as an act of arranging or arranging the purchase of sports betting tickets, etc. and receiving a fixed brokerage commission or commission. However, if it can bring enormous gains by bearing risk of losses caused by the gambling of those who use the overseas sports betting site through the instant relay site, such as the Defendants, it is difficult to view as an act of subparagraph 3.

D. Ultimately, the Defendants’ act constitutes “providing a system of issuing sports betting tickets through information and communications networks for public use” under Article 26(2)1 of the Act. The lower court’s determination can be accepted as based on the legal doctrine as seen earlier, and it did not err in the application of statutes, contrary to what is alleged in the grounds of appeal.

4. As to the remaining grounds of appeal

A. As to collection

Examining the reasoning of the lower judgment in light of the evidence duly admitted, it is justifiable for the lower court to additionally collect KRW 11,020,335,830 from Defendant 2. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the principle of prohibition of disadvantageous change in the collection, misapprehending the legal doctrine on

B. Regarding the assertion of unfair sentencing

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is permitted. Thus, in this case where Defendant 1 was sentenced to a minor sentence, the argument that the amount of the sentence is unreasonable is not legitimate grounds for appeal

5. Conclusion

All appeals are dismissed. It is so decided as per Disposition. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Kwon Soon-il, Justice Lee Ki-taik, Justice Kim Jae-hyung, Justice Lee Dong-won, and Justice Noh Jeong-hee on the part regarding violation of the National Sports Promotion Act (hereinafter

6. Dissenting Opinion as to the violation of the National Sports Promotion Act by Justice Kwon Soon-il, Justice Lee Ki-taik, Justice Kim Jae-hyung, Justice Lee Dong-won, and Justice Noh Jeong-hee

A. The lower court acknowledged this part of the facts charged that the Defendants’ act of providing the system of issuing sports betting tickets through information and communications networks to the public by allowing many and unspecified members to conduct the sports betting on the winners of various sports games provided through the above via the above relay site, and determined that the Defendants’ act constitutes Article 26(2) subparag. 1 of the Act. The lower court’s judgment is justifiable. However, the Majority Opinion’s interpretation of the Majority Opinion is justifiable, but it is contrary to the principle of no punishment without law, which is contrary to the legislative intent or legal system of the relevant provisions, and it is also difficult to agree with the need to interpret the same as the following reasons.

B. The principle of no punishment without the law requires that crimes and punishments be prescribed by law in order to protect individual freedom and rights from the arbitrary exercise of the State’s penal authority. In light of such purport, the interpretation of penal provisions should be strict, and the interpretation in the direction unfavorable to the defendant beyond the possible meaning of the text shall not be permitted in accordance with prohibition of extended interpretation, which is the content of the principle of no punishment without the law (see, e.g., Supreme Court en banc Decision 2015Do17847, Mar. 10, 2016). When interpreting the law, the method of systematic and logical interpretation may be used taking into account the legislative intent and purpose, history of the legislation, harmony with the entire legal order, and relationship with other Acts and subordinate statutes. However, if the text itself consists of relatively clear concepts, such a method of interpretation should be used in principle or limited (see, e.g., Supreme Court Decisions 2006Da81035, Apr. 23, 2009; 2015Do353535, Dec.

C. The Majority Opinion is against the language and text of Article 26(2)1 of the Act, or expands or analogicalizes the meaning of the language and text to the disadvantage of the Defendants.

(1) Article 26(2) of the Act provides that “any person shall be prohibited from doing any of the following acts.” Article 26(2)1 of the Act provides that “The act of designing, manufacturing, distributing, or providing a system that issues sports betting tickets by means of information and communications networks to the public for use.” According to the language and text of the above provision, the object of “the act of designing, manufacturing, distributing, or offering sports betting tickets for use by the public” is “the system that issues sports betting tickets by means of information and communications networks.” In other words, the above provision prohibits the act of designing, manufacturing, distributing, or offering a link to facilitate access to the system that issues sports betting tickets through a separate website as well as the system that issues sports betting tickets through a separate website, and cannot be deemed as constituting the elements of the above provision. This is clear that the above provision prohibits the act of offering sports betting tickets by viewing that it is subject to the act of designing, manufacturing, or distributing the system or providing it to the public for use by means of information and communications networks.”

(2) In this case, “the system that issues sports betting tickets” has only a foreign sports betting site, not the instant transit site. As such, “the system that issues sports betting tickets, etc.” under Article 26(2)1 of the Act is bound to be deemed to refer to the overseas sports betting site. Therefore, in order for the Defendants’ act to constitute “the act of providing the system that issues sports betting tickets, etc. for the public to use,” the Defendants should be deemed to have provided the overseas sports betting site for the public to use.

There is no definition provision on what is “providing” under the Act. In a case where there is no definition provision on the term used in the statute, in principle, it shall be in accordance with the generally accepted meaning, such as a prior definition (see Supreme Court en banc Decision 2015Do8335, Dec. 21, 2017, etc.). The term “providing” in a prior meaning refers to “providing”, and in general, allowing the other party to use or dispose of the goods, etc. by placing them into a contract with the operator of a foreign sports betting site. However, it is true that the Defendants contributed significantly to the general public’ access to and use of the foreign sports betting site through links, game money filling, exchange, etc. after concluding a contract with the operator of a foreign sports betting site, it is not deemed that the Defendants offered convenience in using the foreign sports betting site, that is, offered to the user using the foreign sports betting site.

(3) The Majority Opinion argues that the act of securing in advance the game money that is indispensable for the purchase of sports betting tickets to go on the betting board through the information and communications network can be deemed as the act of providing the above issuing system to the public for use among the acts under Article 26(2)1 of the Act on the grounds that it can be evaluated that the act of collecting money to users in return for money can be deemed as performing an essential function for the public use of the above issuing system. However, even according to the Majority Opinion, it is doubtful whether the act of filling game money can be deemed as an essential function for the public use of the above issuing system.

It is not clear whether the term “essential function” in the Majority Opinion is the meaning of “inherent function”. When interpreting a penal provision, it is necessary to introduce an ambiguous concept without the legal provision and make it possible to determine whether the term constitutes the elements of a penal provision. As recognized by the Majority Opinion, the overseas sports betting site itself is already offered for the public to use. Even if not via the instant relay site, it is possible for domestic users to directly access and use the overseas sports betting site, and even if not via the Defendants, they may charge their games. In this regard, it is natural to evaluate that the Defendants’ act of changing the money deposited in the domestic account at the request of the domestic users to “inherent function” for the public use of the issuing system is not natural. Such act is right and wrong to deem that the issuing system, such as sports betting, offered for the public use by the overseas sports betting site operator, is an act of providing convenience to the domestic users, and it is difficult to see that the issuing system itself was offered to the domestic users.

(4) Furthermore, the Majority Opinion argues that there is no difference between the Defendants’ act of designing, manufacturing, and distributing the system in the “the degree of illegality” and that the Defendants’ act was subject to the interest and loss arising from gambling’s operation of a separate website that connects to the foreign sports betting site, is able to charge and exchange game money, and that the Defendants were subject to the interest and loss arising from gambling.

The key issue of the instant case is whether the Defendants’ act falls under Article 26(2)1 of the Act. The standard for determining the degree of illegality in interpreting the Criminal Act is not possible. The Defendants’ act of helping the Defendants access to the issuing system by opening and operating an intermediary site, such as the Defendants’ act, is a typical form of mediating the purchase of sports betting tickets, etc. under Article 26(2)3 of the Act. It is true that the Defendants’ act of filling game money, providing money exchange services, and paying profits by dividing the same proportion to the foreign sports betting site. Accordingly, the Defendants’ act is distinguishable from the act of providing a system that issues sports betting tickets. If Article 26(2)1 of the Act applies, it is difficult to predict where the scope of the above provision is applicable. If the Defendants’ act of assisting the Defendants in purchasing or mediating sports betting tickets constitutes an act of providing sports betting tickets, etc., it is unreasonable to punish the Defendants by applying the same provision.

D. Ultimately, the Defendants’ act is merely an act of promoting similar acts or mediating or mediating the purchase of sports betting tickets, etc. under Article 26(2)3 of the Act, and it does not constitute “an act of providing a system that issues sports betting tickets through information and communications networks for the public to use” under Article 26(2)1 of the Act. More than anything else, construing the Defendants as the latter constitutes an extended interpretation or analogical interpretation prohibited under the principle of no punishment without law, and thus, it cannot be permitted.

Nevertheless, the lower court found the Defendants’ act as constituting “the act of providing a system issuing sports betting tickets through information and communications networks for public use” under Article 26(2)1 of the Act, and found the Defendants guilty of this part of the modified charges.

In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation of “providing a system that issues sports betting tickets, etc. through an information and communications network for public use” under Article 26(2)1 of the Act, thereby adversely affecting the conclusion of the judgment.

For the foregoing reasons, we respectfully dissent from the Majority Opinion.

Justices Kim Jong-soo (Presiding Justice)