In a case where Defendant A and his employees conspired with Defendant A and Defendant B who registered an Internet computer game providing business, provided the PC to customers who found the PC through identification, etc. in advance, and received money from the customers, the case affirming the judgment of the court of first instance which acquitted the Defendants, on the ground that they provided the game products different from those classified by the method of allowing them to use the game products even if they did not create the PC, and provided them with other contents of the game products by using the chophone which was purchased in advance on the part of Defendant A, and provided them with other contents of the game products, and was prosecuted for violation of the Game Industry Promotion Act, the case affirming the judgment of the court of first instance which acquitted them.

In a case where Defendant A and his employees conspired with Defendant A and Defendant B who registered the Internet computer game providing business, provided IDs created by Defendant A through self-certification in advance to customers who found the PC, and received money from them, and provided them with game money using a coophone which was purchased in advance by Defendant A to enable customers to use the game product even if they did not create their IDs, and was prosecuted for violation of the Act on the Promotion of Game Industry on the ground that they provided them with game products different from the contents of the game product classified by the method of allowing them to use the game product, the case affirming the judgment of the court below which found the Defendants not guilty solely on the ground that the Defendants merely provided “child” necessary for the use of the game and provided them with the game products in advance, and provided them with the game products differently from the contents of the game product classified by the method of allowing them to use the game product even if they did not create their IDs.

Article 30 of the Criminal Act; Article 2 subparag. 7 of the former Game Industry Promotion Act (Amended by Act No. 13955, Feb. 3, 2016); Article 32(1)2 and Article 45 subparag. 4 of the Game Industry Promotion Act; Article 325 of the Criminal Procedure Act

Defendant 1 and one other

Prosecutor

Kim Customs Office and one other

Law Firm Daba Law, Attorney Jeong Han-mo

Ulsan District Court Decision 2015Gohap2049 decided July 15, 2016

All appeals filed by the prosecutor against the Defendants are dismissed.

1. Summary of the prosecutor's grounds for appeal;

As the game product of this case is likely to promote speculation as game products, the game product of this case is rated with important contents, such as allowing each customer to use his/her own ID after joining a membership through adult certification, allowing each customer to directly deposit game money, making it impossible to transfer or take over it among users, and restricting the amount of game money which is deposited and withdrawn from the treasury system.

However, the Defendants received money from customers for the purpose of purchasing game money by providing pre-produced IDs to customers, and provided customers with game money in excess of the amount of money that can be deposited in the safe system, which is different from the contents of the rating.

Nevertheless, the lower court acquitted the Defendants on the ground that the Defendants’ act does not constitute “providing game products with contents different from the grade obtained” under Article 32(1)2 of the Game Industry Promotion Act (hereinafter “Game Industry Promotion Act”), and thus, acquitted the Defendants. In so doing, the lower court erred by misapprehending the legal doctrine and misapprehending the legal doctrine.

2. Determination

A. Summary of the facts charged in this case

Defendant 1, from March 24, 2015 to 23.4 square meters, had four computers installed in the Dong-gu, Ulsan-gu and 23.4 square meters, and had registered business of providing Internet computer game facilities by the Ulsan-gu office, Ulsan-gu. Defendant 2 is an employee of the aforementioned business from October 2, 2015.

A person shall not distribute, provide for use, exhibit or keep any other game content different from that of the rated game product, in collusion with the Defendants;

From October 2, 2015 to October 19, 2015, Defendant 2 provided game using Defendant 1’s ID and password by charging game money in return for money to Defendant 1 without directly charging game money which is different from the contents (△△△△△△△) rated by the Game Management Committee (the classification number omitted) within the said business establishment from October 2, 2015.

Defendant 1: (a) Defendant 2, an employee of the above temporary border, provided a game machine using a chophone that he purchased in advance from a customer with a chophone that he purchased; and (b) provided the said ID and password to the customer.

B. The judgment of the court below

The court below held that the contents of the game of this case, where the contents of the game of this case were classified into the game of this case and there is no provision on the prohibition of the game of this case, and if the game of this case's game of this case's game of this case's game of this case's game of this case's game of this case's contents, if the game of this case's game of this case's game of this case's game of this case's business owner directly filled the game of this case's money received from the customers in cash, it can be viewed that the contents of this case's game of this case's game of this case's game of this case's contents are different from the so-called "indirect shock method" where "game of this case's game of this case's game of this case's game of this case's game of this case's game of this case's game of this case's game of this case's contents without legitimate procedures such as authentication of this case's game of this case's game of this case's contents and this case's game of this case's game of this case'.

C. Judgment of the court below

1) Relevant legal principles

The subject of the rating classification prescribed by the Game Industry Act is the contents of the game product, that is, the contents of the application for rating classification or the description of the contents of the game product attached thereto, rather than the game product or program license itself. Therefore, “providing a game product that differs from the contents of rating,” as prescribed by Article 32(1)2 of the Game Industry Act, includes not only the act of changing the contents of the application or the explanation attached thereto submitted while applying for rating, but also the act of adding the important functions not stated in the above application or explanation, but also the act of assisting the users of the game product in using the game product and not causing any change to the contents of the game product (see, e.g., Supreme Court Decision 2014Do12, May 29, 2014).

2) Determination

가) 원심이 적법하게 채택한 증거에 의하면, ㉠ 이 사건 게임은 이용자가 본인인증 등을 거친 ‘아이디’로 게임 사이트에 접속한 후 해당 아이디의 ‘게임머니’를 배팅하는 방식으로 진행되는 사실, ㉡ ‘게임머니’는 해당 ‘아이디’별로 매일 3회 무료로 지급되고, 이용자는 해당 ‘아이디’가 보유하고 있는 ‘캐쉬’로 게임상의 ‘아바타’를 구입함으로써 ‘게임머니’를 추가로 지급받을 수 있으며, 위 ‘캐쉬’는 이용자가 모바일결제, 계좌이체, 무통장입금, 상품권, 쿠폰 등으로 충전할 수 있는 사실, ㉢ 피고인들은 PC방을 찾은 손님들에게 미리 본인인증 등을 거쳐 생성시켜 둔 피고인 1의 아이디[(아이디 생략), 이하 ‘이 사건 아이디’라고 한다]를 제공함으로써 손님들로 하여금 자신의 아이디를 만들지 않더라도 위 아이디로 이 사건 게임을 이용할 수 있게 한 사실, ㉣ 피고인들은 손님들로부터 돈을 받고 쿠폰을 이용하여 이 사건 아이디의 ‘게임머니’를 충전하여 손님들로 하여금 위 ‘게임머니’로 이 사건 게임을 이용할 수 있게 한 사실은 각 인정된다.

B) However, in full view of the following circumstances acknowledged by the evidence duly admitted by the lower court, the Defendants merely provided “afd” necessary for the use of the game and provided a user with “afd” instead of filling “afd” on the “afd” so that customers can use the game without making their own “afd”, and solely based on the above circumstances, the Defendants did not change the contents of the game contents differently from the contents of the game contents. There is no evidence to support that the Defendants changed the contents of the game contents.

(1) The game product description attached to the game product classification application is merely an explanation of the procedure for identification or re-admission, etc., and does not require the user to take measures to compel the user to use the game only with his/her own “addi” created directly by the user, such as prohibiting the user from lending “addi” or using the said user’s ID with the consent of another person.

(2) The Defendants: (a) purchased a coophone equivalent to the same amount, which is one of the method of charging “game money” on behalf of the customers in return for money from the customers; (b) filled the instant coophone with the instant haga; and (c) purchased the instant haga with the said haga; and (d) charged the “game money” with the “game money by receiving additional payment”; and (c) did not appear to have provided the “game money” in a way different from that of receiving the rating by directly changing the said money to the “game money”; and (d) the Defendants did not appear to have provided the said “game money” in a way different from that of receiving the rating, such as

(3) In addition, according to the game product description attached to the game product classification application, the game product of this case is prohibited from transferring or taking over the “game money” as a measure to prevent speculation, but this merely means prohibiting the transfer of the “game money” itself within the game product between “Addi” and “Addi” other than a specific “Addi”. As such, even if the game product of this case causes the transfer or taking over the “game money” in fact by having another person use his “addi”, as in the case of this case, by causing another person to use “addi”, it cannot be said to go against the prohibition of transfer or taking over the said “game money.”

(4) Meanwhile, according to the game contents attached to the application for rating, the game of this case has a “game machine” system that allows a user of the pertinent “Addi” to use only the “game machine” deposited in the “Addi” virtual game after depositing part of the “Addi” into the “Addi” virtual game. In order to prevent the case of a person regardless of his/her will, due to the characteristics of the Addi-game game, the act of using the “Bloddi” is divided into the “game machine” owned by the pertinent “Addi” and the “Bloddi” owned by the pertinent “Addi”, and it does not limit the total amount of “Addi’s game machine” owned by the relevant “Addi”. Therefore, the Defendants’ act of lending the “Medi’s money” amount from the Defendants cannot be deemed as having directly related to the “didi-di’s functions and/or functions and/or functions of the “Bloddi-di’s fee-raising” in question.

(5) 또한 등급분류 신청서에 첨부된 게임물 설명서에 따르면, 이 사건 게임물은 사행성을 막기 위하여 ㉠ 게임의 결과를 현금으로 보상하지 않고, ㉡ ‘게임머니’를 직접 현금으로 충전할 수 없으며, ㉢ 게임 내에서 이용자 간 ‘게임머니’ 이체가 불가능하고, ㉣ 게임 승패의 결과로 얻은 점수 또는 ‘게임머니’를 현금화할 수 없으며, ㉤ 게임 승패의 결과로 현금 또는 다른 물품을 제공받거나 취득할 수 없고, ㉥ 게임 승패의 결과로 얻은 ‘게임머니’를 직간접 유통과정을 통해 유·무형의 보상으로 제공하지 않는 등의 조치만을 취하고 있을 뿐이고, 더 나아가 이용자의 게임이용내역을 개별적으로 확인할 수 있도록 이용자가 반드시 본인의 ‘아이디’를 사용하도록 강제하는 등의 별도의 조치를 하도록 요구하고 있지는 않다. 따라서 피고인들이 손님들에게 이 사건 아이디를 제공하여 손님 개개인들로 하여금 본인인증·성인인증 등을 거치지 않고도 이 사건 게임물을 이용할 수 있게 함으로써 사행성을 조장하거나 청소년 이용불가 게임물을 청소년에게 이용제공하는 결과를 초래하였다고 하더라도, 그것이 게임물의 내용 구현과 밀접한 관련이 있는 게임물의 운영방식을 변경하였다고 볼 수는 없으므로, 사행행위 또는 사행성 조장이나 그 밖의 게임물 관련 사업자의 준수사항 위반 등을 구성요건으로 하는 다른 범죄로 처벌하는 것은 별론으로 하고, 등급분류 받은 게임물과 다른 내용의 게임물 이용제공에 따른 게임산업진흥에 관한 법률 위반죄로 처벌할 수는 없다고 할 것이다.

3. Conclusion

Therefore, since the facts charged against the Defendants constitute a case where there is no proof of crime, all of the judgment of the court below that acquitted the Defendants under the latter part of Article 325 of the Criminal Procedure Act should be pronounced not guilty. The judgment of the court below that acquitted all of the above facts charged is justified and there is no error of law by misunderstanding

Therefore, since the appeal against the Defendants by the prosecutor is without merit, it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Dong-sik (Presiding Judge)