[1] The meaning of and criteria for determining "illegal solicitation" in the crime of accepting the certificate of breach of trust

[2] Whether a customer’s act of exchanging merchandises acquired through a game product with a gift gift constitutes a subject of punishment under Article 50 and Article 32 subparag. 3(b) of the former Sound Records and Video Products Act (affirmative)

[3] The elements for the establishment of a co-principal

[4] The case recognizing a joint principal offender's liability for a violation of the public notice of the method of offering gift certificates to the issuer of a merchandise coupon in a manner that issues a new merchandise coupon instead of cash in connection with the collection of the old merchandise coupon in exchange for the merchandise coupon and obtains a profit from the exchange commission

[5] The meaning of an intentional act as an element for establishing an aiding and abetting crime and the method of determination

[6] Whether the standard of determining whether a person constitutes “a machine, apparatus, etc. which is likely to cause speculation” under Article 30(1)1 of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc. is also applicable to a violation of Article 49(1)2 and Article 32 subparag. 2 of the former Sound Records and Video Products Act (affirmative)

[7] The case holding that where a game providing business operator has caused customers to perform speculative acts using game products by keeping a speculative gaming machine in a game room and exchanging merchandise coupons for free gift acquired by customers, the case holding that the provider of merchandise coupons for free gift to be held liable for aiding and abetting the above speculative acts

[1] Article 357 of the Criminal Act / [2] Article 32 subparagraph 3 (see current Article 28 subparagraph 3 of the Promotion of the Game Industry Act), Article 50 subparagraph 3 (see current Article 44 (1) 1-2 of the Promotion of the Game Industry Act) of the former Sound Records and Video Products Act (repealed by Article 3 of the Addenda to the Promotion of the Motion Pictures and Video Products Act, Act No. 7943, Apr. 28, 2006), Article 30 of the Criminal Act / [3] Article 32 subparagraph 3 (see current Article 28 subparagraph 3 of the Act on the Promotion of the Game Industry, Article 30 of the former Sound Records and Video Products, Article 40 subparagraph 3 (see current Article 40 subparagraph 4 of the Act on Special Cases concerning the Promotion of the Game Industry), Article 20 subparagraph 3 (see current Article 40 subparagraph 1-2 of the Act on the Promotion of the Video Products and Video Products, Article 30 subparagraph 4 of the Act

[1] Supreme Court Decision 9Do2165 delivered on April 9, 2002 (Gong2002Sang, 1164) Supreme Court Decision 2004Do6646 Delivered on January 14, 2005 (Gong2005Sang, 347) Supreme Court Decision 2006Do4784 Delivered on February 8, 2007 / [3] Supreme Court Decision 2002Do5112 Delivered on March 11, 2005 (Gong205Sang, 618), Supreme Court Decision 2006Do1623 Delivered on December 22, 206 (Gong207Sang, 205Sang, 207Do42649 delivered on April 26, 2007) / [307Do4209 delivered on April 26, 2007] Supreme Court en banc Decision 2005Do36597 delivered on April 26, 20069.

Defendant

Defendant

Attorney Lee Young-young

Seoul High Court Decision 2007No297 decided May 21, 2007

The appeal shall be dismissed. One hundred and fifty days out of the number of detention days after the appeal shall be included in the original sentence.

We examine the grounds of appeal.

1. Judgment on the ground of appeal as to taking advantage of breach of trust

In the crime of giving and receiving in breach of trust, illegal solicitation refers to a solicitation against social norms and the principle of trust and good faith. In determining this, a comprehensive consideration of the contents of the solicitation, the amount of the property received or provided in relation thereto, the form, and the integrity of the business administrator, which is the legal interest protected by the law, should be comprehensively considered (see Supreme Court Decision 9Do2165 delivered on April 9, 2002, etc.).

The court below, based on the duly admitted evidence, acknowledged the facts and circumstances as stated in its reasoning, including the fact that the total amount received by the defendant from the non-indicted 1 was equivalent to KRW 600 million, and determined that the defendant, as the representative director of the piracy Co., Ltd., which is the designated entity of the issuance of gift certificates for gift purposes, was changed to a "stock company", a national total sales agent for the distribution of gift certificates issued by the above company, and acquired the two companies by receiving 60 million won in total from the non-indicted 1's representative director of the Mad Co., Ltd. (hereinafter "national total sales") for 11 months in return for such illegal solicitation, such as reduction of fees for the exchange of new and old gift certificates and expansion of the amount of issuance.

In light of the above legal principles and records, the selection of evidence, fact-finding, and judgment of the court below are justified, and there is no violation of the rules of evidence or misapprehension of legal principles as to the act of taking property in breach of trust, as alleged in the grounds of appeal.

2. Judgment on the grounds of appeal on the exchange of gift certificates of this case

A. As to the prohibition of money exchange

According to Article 32 subparag. 3(b) of the former Sound and Video Products Act (amended by Act No. 7943 of Apr. 28, 2006; hereinafter the same), the Ministry of Culture and Tourism prohibits the exchange of free gifts under Article 32 subparag. 5(a) of the former Act by prohibiting “act that may encourage speculation or have an influence on juveniles, and that provides free gifts without using a method determined and publicly notified by the Minister of Culture and Tourism” (Article 50 subparag. 3), and Article 50 of the Ministry of Culture and Tourism prohibits the exchange of free gifts in detail on July 6, 2005 of the Ministry of Culture and Tourism (Article 205-9).

Inasmuch as a customer’s act of exchanging gift certificates obtained through a game product is provided as a gift gift in the end, the restriction on the type and method of providing a gift if it is permitted to do so is no more meaningful. Therefore, prohibiting the act of exchanging gift certificates can be deemed as the minimum restriction on the method of paying gift premiums, and it is clear that the act of exchanging gift certificates has the effect of promoting speculation. Thus, the Ministry of Culture and Tourism’s announcement cannot be deemed as going beyond the limit of delegated legislation.

Therefore, the argument in the grounds of appeal that money exchange should be interpreted as excluded from the subject of punishment under Articles 50 and 32 Item 3 of the Food Sanitation Act is without merit.

B. As to the establishment of co-principals

(1) The co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, namely, the commission of a crime through functional control based on the intent of co-processing and the intent of co-processing. While the co-principal may be held liable for the crime even if he/she did not directly share and implement part of the elements of a crime among the conspiracy, he/she may be held liable for the crime as a co-principal. However, when comprehensively considering the status, role, control or power over the progress of the crime as a whole in the whole crime, it should be deemed that there is a functional control through an essential contribution to the crime rather than a simple conspiracy.

(2) According to the above legal principles and the methods of operating merchandise coupons which are legally admitted by the court below, the defendant's act of issuing merchandise coupons to the extent of using merchandise coupons at any time and time. The defendant's act of distributing merchandise coupons at the 0th of the 5th of the 6th of the 1st of the 6th of the 6th of the 6th of the 6th of the 1st of the 6th of the 6th of the 6th of the 6th of the 6th of the 6th of the 5th of the 6th of the 6th of the 5th of the 6th of the 6th of the 5th of the 5th of the 6th of the 5th of the 5th of the 5th of the 5th of the 1st of the 6th of the 5th of the 5th of the 1st of the 6th of the 1st of the 6th of the 6th of the 1st of the 6th of the 1st of the 1st of the 1st of the 3th of the 3th of the 2.

(3) Therefore, we affirm the judgment of the court below that found the defendant guilty on the violation of the public notice on the method of providing free gifts by the act of exchange in this case by recognizing the defendant's liability for joint principal offenders, and there is no violation of the rules of evidence or misapprehension of the legal principles as to joint principal offenders, as otherwise alleged in the grounds of appeal.

3. As to the establishment of aiding and abetting the instant speculative businesses, etc.

In the Criminal Act, aiding and abetting under the Criminal Act refers to any direct or indirect act that facilitates the principal offender to commit a crime. Aid and abetting is established not only in the case of aiding and abetting the principal offender during the commission of the principal offender, but also in the case of aiding and abetting by predicting and facilitating the future act before the commission of the principal offender commences. Aid and abetting must have the principal offender’s intent to assist and abetting the principal offender and that the principal offender’s act constitutes an element of a crime. However, if the principal offender denies the principal offender, it should be proven by the method of proving indirect facts that are highly related to the principal offender’s intent in light of the nature of the object, and in this case, there is no other way to reasonably determine the connection status of the fact by using a detailed observation or analysis power based on the normal empirical rule. Moreover, the principal offender’s intent in aiding and abetting is not required to recognize the specific contents of the crime realized by the principal offender, but it is not necessary to do so (see, e.g., Supreme Court en banc Decision 200Do426537, Apr. 26, 2097, 2097).

In addition, Article 30(1)1 of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc. provides that persons engaged in speculative acts (such as machines and instruments, etc. that are likely to cause speculative acts, such as mechanical slot machines, speculative electronic amusement machines, etc.), other than speculative acts under Article 2(1)2 of the same Act, shall be punished by persons engaged in speculative acts (such as collecting property or property benefits from many persons and making decisions on gain or loss of property by an incidental method). The issue of whether a person falls under the category of "speculative acts, etc. which are likely to cause speculative acts" should not be determined solely by the original usage or characteristic of the relevant machines, apparatus, etc., not by the method and scale of use, the degree and scale of use, whether money or exchange free gifts are given depending on the result of use, and whether free gifts are actually given in cash, etc. shall also be determined by taking into account such unlawful methods as provision of gift or exchange, etc., such as holding them to the extent of violation of Article 2(1)26 of the same Act.

In light of the above legal principles and evidence duly admitted by the court below, the following circumstances and the main contents of the principal act of this part of the game providing business are 0% of the input amount by the so-called mert function and example function, so that the users of the game providing business can exchange the discharged gift vouchers, etc. at the game site, and the "sea-based" which caused speculative spirit to users to use the said speculative gaming machine at the game site and the gift certificates received to 4,500 won per 1 gift certificates are distributed to customers by using the game 5% of the total gift certificates (hereinafter referred to as "the speculative act of this case"), and the key contents of this part are 0% of the total gift certificates issued by the defendant's 10% of the total amount of gift certificates issued by the game providing business, and it can be said that there is no more than 9% of the total gift certificates issued by the defendant's 10% of the total amount of gift certificates issued by the game using the mert function.

Therefore, in this regard, the judgment of the court below that found the defendant guilty on the charge of each aiding and abetting part of this part is just and acceptable, and there is no violation of the rules of evidence or misunderstanding of legal principles as to aiding and abetting crimes, as alleged in the grounds of appeal.

4. Conclusion

Therefore, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)