Defendant

Both parties

Newly Inserted by Act No. 1011, Dec. 21, 201

Law Firm Pstru et al.

Seoul Central District Court Decision 2016Gohap676 Decided May 31, 2016

All appeals by the defendant and the prosecutor are dismissed.

1. Summary of grounds for appeal;

(a) A prosecutor;

(1) misunderstanding of facts and misapprehension of legal principles

As to the violation of the National Sports Promotion Act (gambling, etc.), the Defendant directly recruited the members of the “○○○” website (hereinafter “○○○ website”) and the lower-level sales, which is a domestic master’s general sales book, and acquired 1% of the betting amount of the recruited members, and 0.2% of the betting amount of the lower-level members recruited by the lower-level sales board as commission. Therefore, the Defendant is not only an act of promoting illegal sports gambling sites, but also an entity directly engaged in the operation with the site operator, and thus, the Defendant violated the prohibition of similar acts.

Nevertheless, the lower court found the Defendant not guilty of this part of the facts charged, which erred by misapprehending the legal doctrine, thereby affecting the conclusion of the judgment.

(2) Unreasonable sentencing

The sentence (two years of imprisonment) sentenced by the court below to the defendant is too unhued and unfair.

B. Defendant

(1) misunderstanding of facts and misapprehension of legal principles

First, with respect to the establishment of gambling space, the Defendant only publicizedd the Defendant’s △△△△△△ for about 27 days from September 4, 2015 to September 20, and did not own shares. The Defendant did not own shares for the members of the ○○ website. The amount calculated by multiplying the distribution rate by the distribution rate to the members who did not know the result is paid to the members who did not know the result. However, the Defendant received some of the betting amount (1% of the betting amount of the recruited members and 0.2% of the total amount of the betting amount of the members recruited) of the ○○○ website members, so there is a difference in the method and structure of profit.

Nevertheless, the court below found the defendant as a co-principal by erroneously determining the period during which the defendant promoted the ○○ site, the contents of the promotional act, and the nature of the benefit derived from the promotional act, etc.

Next, the lower court sentenced the Defendant to the additional collection of KRW 181,490,000 against the Defendant; however, the lower court’s corporate bank account under the name of Nonindicted Company 2, which was used as evidence for calculating the additional collection charges, is not the account of deposits on the website (hereinafter “money deposit account”). There is no evidence suggesting that the bank account under the name of Nonindicted Company 3 is deposit account, and the amount of gambling funds deposited in the account is no longer available. Even if the corporate bank account under the name of Nonindicted Company 2 is deposit account, according to evidence, the total amount of money deposited in the account is limited to KRW 12,197,915,052, and that money is included in the amount of betting money deposited before the Defendant publicized the ○○○○ site, so it is unlawful to calculate the Defendant’s profit based on such amount.

Therefore, the judgment of the court below is erroneous in misconception of facts or misapprehension of legal principles in calculating additional collection charges.

(2) Unreasonable sentencing

The sentence imposed by the court below on the defendant is too unreasonable.

2. Determination

A. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

(1) Opening a gambling space

The crime of opening a gambling space under Article 247 of the Criminal Act is a crime established by opening a gambling space under the control of a person who is him/herself for the purpose of making a profit. The term "scambling person" as referred to in this crime refers to a person who gives an opportunity for gambling under his/her control and management, such as opening a gambling space for the purpose of making a profit. Whether a person is in the position of a presiding official shall be determined by comprehensively taking into account various circumstances such as the control and management of the gambling space, collection of fees, etc., and the role of the offender.

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, it is reasonable to view that the Defendant, with the intent to jointly process the crime of the person without the name of the principal offender, was functionally shared with the act of opening a gambling space by inducing the ○○○ website membership of the gambling person directly or by using the lower command. Accordingly, this part of the Defendant’s assertion is rejected.

① ○○○○ website (Internet address 1 omitted), (Internet address 2 omitted), (Internet address 3 omitted), (Internet address 4 omitted), and (Internet address 5 omitted), etc.) are private sports discussions operated by a person without a name, who opened a server in Japan. A member of the ○○ website deposits cash into an account, etc. on the ○○ website (this is mainly a borrowed account under the name of a legal entity, and it appears that several accounts are used) and receives dividends, and if the result meets the result of the sports games, the virtual currency becomes void. The operator of the ○○ site obtains cash deposited into the above borrowed account to obtain virtual currency. Therefore, in the operation of the ○○ site, it is necessary to prepare a system for promoting ○○ website and inducing members to join and join the said website, to induce members to participate in the activities of paying dividends, and to manage the profits from the operation of the virtual currency.

② ○○ 사이트의 운영자인 성명불상자는 2014. 12.경부터 2015. 10.경까지 피고인에게 ○○ 사이트의 홍보 및 회원 가입 유도 역할을 맡겼다. 그러한 역할을 하는 자를 ‘총판’이라 하고 그 중 피고인과 같이 여러 총판을 거느리는 자를 ‘마스터 총판’이라 지칭하였다. 이에 피고인은 공소외인을 비롯하여 30개의 하부총판(하부총판은 2인 이상의 사람으로 구성되었던 것으로 보인다)을 모집하여 회원 유치 방법을 알려주었고, 피고인과 하부총판은 ☆☆☆☆, 인터넷 개인 방송사이트(▽▽▽▽, ◎◎◎◎◎◎)를 통해 ○○ 사이트를 홍보하고, 홍보물을 보고 연락한 사람들에게 ○○ 사이트 가입 방법을 알려주는 방법으로 회원을 유치하였다.

③ In return for the Defendant’s advertising of the ○○○ site’s name manager and attracting its members, the Defendant, as a master planner’s manager, received 0.2% of the total betting amount among the 1% of the total betting amount and the 0.2% of the total betting amount (the Defendant stated on the 4th trial of the lower court that the total amount of profits was KRW 3.65 million). Meanwhile, the Defendant and the Habow, on the 4th trial of the lower court, could have confirmed the amount of the betting amount that ○○ site recruited by her members and its profits.

④ The person who is the operator of the ○○ site, who is the operator of the ○○ site, had installed the ○ site server in a foreign country and changed the address of the ○ site from time to time, and had operated the ○ site in the form of need for his approval. This appears to be aimed at minimizing the operator himself/herself and avoiding the control of the investigation agency. However, due to such operation form, the Defendant, like the Defendant, was required to publicize the ○ site in Korea and to act as the master planner who recruited its members.

(2) Calculation of a surcharge

Whether confiscation, collection, or collection is subject to strict certification is not required (see, e.g., Supreme Court Decisions 91Do3346, Jun. 22, 1993; 2015Do1233, Apr. 23, 2015).

원심이 적법하게 채택하여 조사한 증거들에 의하여 인정되는 사정 즉, 피고인은 검찰 제2회 피의자신문 당시 이 사건 범행으로 인한 수익금이 4억 원 정도 되고, 그 근거로 명품 시계 4개를 구입하는데 2억 원 정도(◁◁ 6,500만 원, ▷▷▷ 5,500만 원, ▷▷▷ 4,000만 원, ▷▷▷ 4,500만 원), 명품 가방, 지갑, 의류를 구입하는데 2,000만 원, 압수된 현금 3,400만 원, 대부업체로부터 대출받은 1,600만 원을 상환하는데 각 사용하였다고 진술하였고, 이에 검사가 피고인의 진술대로 하자면 생활비, 월세, 병원비로 사용한 금액이 1억 원이 넘는다는 것이냐는 질문에 그렇다고 답하면서 일부는 도박을 하여 잃었다고 진술한 점(증거기록 제1권 제575, 576면), 피고인은 원심에서 자신이 얻은 수익액은 시계, 가방 등 명품 구입비, 생활비, 월세, 병원비, 대출금 상환 등에 사용하였고, 남아 있던 현금 3,400만 원은 압수되어 대부분의 수익금이 회수된 상태라고 변소한 점(공판기록 제42, 198면), 피고인은 원심 제4회 공판기일에 이 사건 범행으로 인한 수익금이 총 3억 6,500만 원이라고 인정한 점 등을 종합하여 보면, 피고인이 이 사건 범행으로 얻은 이익은 3억 6,500만 원인 사실을 인정할 수 있으므로, 위 3억 6,500만 원에서 압수된 증제1 내지 4, 12, 13호의 가액 합계 1억 8,351만 원을 공제한 나머지 1억 8,149만 원을 추징금액으로 산정한 원심의 판단은 정당하고 거기에 피고인이 주장하는 바와 같은 사실오인 또는 법리오해의 위법이 없다. 따라서 피고인의 이 부분 주장은 받아들이지 않는다.

B. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

In the lower court’s argument to the same effect as this part of the grounds for appeal, and the lower court acquitted the Defendant of this part of the facts charged on the grounds that the Defendant’s act as stated in this part of the facts charged cannot be deemed to constitute “similar act” in light of the following circumstances as stated in the judgment of 2. Determination,” and there is no other evidence to acknowledge it. Examining the records of the instant case closely, the lower court’s aforementioned determination can be recognized as legitimate, and thus, rejected the Prosecutor’s allegation of misunderstanding of facts

① In general, “similar act” using an illegal sports gambling site as seen in the instant case takes place through the process of developing a program for operating the gambling site, i.e., (ii) inviting a doorbook to receive money for gambling, (iii) promoting and operating the site, and (iv) withdrawing and distributing earnings. In each ordinary stage of the instant act, multiple people intervene and commit a crime in a systematic and systematic manner.

② The former National Sports Promotion Act (amended by Act No. 11309, Feb. 17, 2012) stipulates that a person who violates the prohibition provision shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 15 million won (Articles 53 and 26 of the Act). Article 26(1) of the current National Sports Promotion Act specifically provides for the concept of “similar act” prohibited under Article 26(2) of the same Act. Article 47 through 49 of the same Act specifically provides for the prohibited act related to “similar act” and Article 47 through 49 of the same Act prescribes the statutory punishment differently depending on the form of each prohibited act.

③ All of the acts prohibited under Article 26(2) of the current National Sports Promotion Act are acts related to one another in the execution of “similar acts.” Subdivision of the acts and the statutory punishment therefor are differentiated. The legislative intent to specify prohibited acts related to illegal sports gambling and then punish the person who committed the acts prohibited under Article 26(2) of the current National Sports Promotion Act is to be deemed to be in violation of the above legislative intent. Therefore, it is against the above legislative intent to punish the person who committed the acts prohibited under Article 26(1) of the current National Sports Promotion Act as a co-principal relationship with the person who committed the acts prohibited under Article 26(2) of the same Act, namely, the relationship between the accomplice who committed the “similar acts” under Article 26(1) of the same Act and the relationship between the co-principal relationship under Article 26(1) of the same Act, by deeming that

④ The Defendant’s act indicated in the summary of this part of the facts charged is merely an act of promoting an illegal sports gambling site’s Mwitter and directly recruiting its members by advertising the above site, or soliciting subordinate members by soliciting its members, and 1% (in the case of a member directly recruited by the Defendant himself) or 0.2% (in the case of a member directly recruited by the Defendant) of the betting amount of the participants in gambling through the private sports site’s ○○○ site, and the Defendant’s act constitutes “an act of promoting similar acts or mediating or mediating the purchase of sports betting tickets or similar things” prohibited under Article 26(2)3 of the National Sports Promotion Act, and it does not constitute “an act of providing property or property benefits to a person who correctly predicted the result of issuing sports betting tickets or similar things” as stipulated under Article 26(1)3 of the National Sports Promotion Act.

C. Determination on the grounds of unfair sentencing by both parties

In full view of the various circumstances, such as the Defendant’s age, character and behavior, environment, background of the crime, circumstance after the crime, etc., and the conditions for sentencing as shown in the pleadings and records and arguments, the Defendant’s punishment imposed by the lower court cannot be deemed as excessive or unjustifiable, and thus, it cannot be deemed unfair on the grounds that the Defendant’s punishment imposed by the lower court is too heavy or unjustifiable. In so doing, the Defendant’s calculation of the profit of KRW 365 million was carried out, the Defendant was punished four times by a fine for gambling and the crime of gambling and gambling, and the Defendant’s health is not good, such as the Defendant’s illness, and there was no special circumstance or change of circumstances that may be newly considered after the sentence of the lower judgment was rendered.

3. Conclusion

Therefore, since the appeal by the prosecutor and the defendant 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 Kim Jong-sik (Presiding Judge)

1) Article 26 of the former Act: No person, other than the Seoul Olympic Sports Promotion Foundation and entrusted business operators, may issue sports betting tickets or similar.

2) Article 26 of the current Act: (1) No person, other than the Seoul Olympic Sports Promotion Foundation or an entrusted business entity, may issue sports promotion betting tickets or similar things (including the issuance by means of information and communications networks) and offer property or property benefits (hereinafter referred to as "similar act") to a person who correctly predicted the result. (2) No person shall engage in any of the following acts:

3) Article 26(1) provides that a person who violates Article 26(1) shall be punished by imprisonment with prison labor for not more than seven years pursuant to Article 47(2) or by a fine not exceeding 70 million won pursuant to Article 47(2), by imprisonment with prison labor for not more than five years pursuant to Article 48(4) or by a fine not exceeding 50 million won pursuant to Article 48(2)(1), or by imprisonment with prison labor for not more than three years pursuant to Article 26(2)(2)( or a fine not exceeding 30 million won pursuant to Article 49(1).

4) According to the reason for the enactment and amendment of Article 26, Article 47, and Article 49 of the current National Sports Promotion Act at the time of the amendment, the Ministry of Government Legislation states as follows: “Any person who, by eradicating the illegal operation of sports gambling business and participation in such gambling by a person who is not a legitimate issuer of sports betting tickets, commits an act such as manipulation in order to ensure the stability and fairness in issuing sports betting tickets, and any person who participates in such gambling shall be punished; and any other person who, as a result, intends to improve and supplement some deficiencies as revealed in the operation of the current system.” The main contents are as follows: “The illegal act related to sports gambling” is to specify the prohibited act related to sports gambling and to establish relevant penal provisions (Articles 26, 47 subparag. 1, 48 subparag. 1, 2, and 49 subparag. 1).

5) At the lower court, the prosecutor clearly recognizes functional control over the operation of the pertinent site between the Defendant and the operator of the “private sports territory” ○○ site. As such, the public prosecutor asserts that the above public contest relationship with the operator on the whole of the violation of the National Sports Promotion Act (such as gambling opening, etc.) and the establishment of gambling spaces has been established, and that the Defendant should be liable for a violation of Article 26(1) of the National Sports Promotion Act (the trial record No. 274-27 of the trial record).