The case holding that in the case where the defendant's act of selling an item constitutes a crime of violation of Article 44 (1) 2 and Article 32 (1) 7 of the same Act as a result of exchanging the game product, and the defendant's act of selling the item constitutes a crime of violation of Article 44 (1) 2 and Article 32 (1) 4 of the same Act as a result of exchanging the game product, and the defendant's act of selling the item constitutes a crime of violation of the Act on Promotion of the Game Industry by transferring the sales proceeds to an account under the name of the defendant, and the prosecutor prosecuted the crime of violation of the Act on Promotion of the Game Industry by using Article 44 (1) 2 and Article 32 (1) 9 of the same Act as a result of providing the game product without approval, and the prosecutor recognized the crime of violation of Article 44 (1) 2 and Article 32 (1) 4 of the same Act as a result of the crime of violation and ordered the sale proceeds of the game item to be collected in violation of Article 47 (1) of the same Act.

As to the facts charged that the Defendant violated the Game Industry Promotion Act (hereinafter “Game Industry Promotion Act”) by creating and selling items and remitting total of KRW 226,483,00 to users a total of KRW 1,573 times in the account in the name of the Defendant, the prosecutor indicted the Defendant by applying Article 44(1)2 and Article 32(1)9 of the Game Industry Promotion Act due to the provision of unapproved game products. The first instance court recognized the facts charged by the Defendant, and recognized the sales proceeds of the game items, and deemed the proceeds arising from the act of providing unapproved game products, and sentenced the collection of the total amount in accordance with Article 44(2) of the Game Industry Promotion Act.

The case holding that since the game item sales proceeds received by the defendant by producing a game item to users are not only for providing Nive Game without approval by the game products related business entity, but also for selling to users, it is difficult to regard it as profits arising from the violation of Article 44 (1) 2 and Article 32 (1) 9 of the Game Industry Act due to the provision of unapproved game products, and rather, the game item produced by the defendant constitutes a violation of Article 32 (1) 7 of the Game Industry Act, Article 18-3 (1) 3 (a) of the Enforcement Decree of the Game Industry Promotion Act, and Article 32 (1) 7 of the Game Industry Promotion Act, and Article 32 (2) 4 of the Game item sales proceeds are not permitted as a result of the crime of exchanging the game item because it constitutes a violation of Article 47 (1) 4 of the Game Industry Promotion Act, since the game item sales proceeds are not only for receiving and delivering money from exchange, but also for receiving money from the game item.

Article 32(1)7 and 9, Article 44(1)2 and (2) of the Game Industry Promotion Act, subparagraph 3(a) of Article 18-3 of the Enforcement Decree of the Game Industry Promotion Act

Defendant

Defendant

(2) The number of days of discharge and one other

Attorney Kim Won-won

Ulsan District Court Decision 2019No3266 decided December 19, 2019

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

However, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

The defendant shall be ordered to provide community service for 80 hours.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

The defendant's act of providing a game item sales amount of KRW 226,483,00,00, which the defendant created and sold an item to users, is not a profit accrued from the act of providing an unapproved game product, so it cannot be subject to additional collection.

B. Unreasonable sentencing

The punishment of the court below against the defendant (one year and six months of imprisonment, and additional collection) is too unreasonable.

2. Judgment on the mistake of facts or misapprehension of legal principles by the defendant

According to the records, the prosecutor prosecuted the facts charged of this case by applying Article 44(1)2, Article 32(1)9, and Article 44(2) of the Game Industry Promotion Act, Article 334(1)9 of the Criminal Procedure Act, and Article 334(1)9 of the same Act to the facts charged of this case. The court below acknowledged the facts charged in the judgment of the court below after compiling the evidence, and determined the defendant by applying Article 44(1)2, and Article 32(1)9 of the Game Industry Act to Article 32(1)9 of the same Act, and sentenced the collection of the total amount of KRW 226,483,00 for game items created by the game item to the users and sold to the users.

However, the sales proceeds of the game item in itself do not mean that the defendant received for the provision of 10 game items without approval by the non-indicted 1 corporation. As such, it is difficult to view it as profits generated from the violation of Article 44(1)2 and Article 32(1)9 of the Game Industry Act due to the provision of the defendant's non-approval game products. Rather, the game items created by the defendant constitutes "game money or data such as game items produced and acquired by writing, hacking or hacking" under Article 32(1)7 of the Game Industry Promotion Act, Article 18-3(a) of the Enforcement Decree of the Game Industry Promotion Act, and Article 18-2 subparag. 3(1)9 of the above Act, and Article 32(1)7 of the Game Industry Promotion Act does not constitute "the act of receiving money from exchange" and "the act of receiving money from exchange" as well as "the act of receiving money from exchange" under Article 40(2)9 of the above Act. It is reasonable to interpret it as "the act of receiving money from the defendant."

Nevertheless, the lower court deemed the sales proceeds of the above game items to be accrued from the criminal act of providing the unregistered game products in this case and sentenced to the collection of the entire amount thereof constitutes a case where it erred by misapprehending the legal principles on interpretation and application of Article 44(2) of the Game Industry Act, thereby affecting the conclusion

Therefore, the defendant's assertion pointing this out is justified.

3. Conclusion

Therefore, the defendant's appeal is reasonable, and the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the defendant's argument of unfair sentencing, and the defendant's appeal is again decided as follows.

No one shall produce, distribute, provide, or arrange game products not provided or approved by a game products related business entity.

On July 2017, the Defendant leased a connection device that can connect Nonindicted 2 to the illegal private cooking game server (○○○, △△△, △△△, △△△, △△, △△, △△, △△△, △△△), and had the users connect the said connection device to the Defendant’s website opened at the Defendant’s place of residence located in Ulsan ( Address omitted) from July 10, 2017 to December 26, 2018, and allowed Nonindicted Company 1 to conduct the said private cooking game which was not approved.

As a result, the defendant provided game products not approved by game products related business operators.

[검사는 피고인에 대하여 게임산업법 제32조 제1항 제9호 위반으로 의율하여 공소를 제기하면서, 이 사건 공소장에 ‘피고인이 아이템을 만들어 판매하여 별지 범죄일람표 기재와 같이 총 1,573회에 걸쳐 아이템 판매대금 합계 226,483,000원을 피고인 명의의 ◁◁◁◁◁ 계좌와 ▷▷ 계좌로 송금받은 사실’을 적시하였다.

However, as seen earlier, the part in which the above Defendant’s game item exchange act constitutes separate crimes in violation of Article 44(1)2 and Article 32(1)7 of the Game Industry Act due to the act of exchanging game items. It is irrelevant to the liability for violation of Article 44(1)2 and Article 32(1)9 of the Game Industry Act due to the act of providing unregistered game products subject to the instant adjudication. Furthermore, the part in the facts charged is irrelevant to the crime of violation of Article 44(1)2 and Article 32(1)9 of the Game Industry Act due to the act of offering the game products subject to the instant adjudication. Since it is not likely that the deletion of this part in the charges

The summary of the evidence of the above crime is the same as that stated in the corresponding column of the judgment of the court below, and thus, it is accepted in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 44(1)2 and 32(1)9 of the Act on the Promotion of Game Industry (generally, the choice of imprisonment)

1. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration favorable Circumstances among the Reasons for Sentencing below)

1. Social service order;

Article 62-2 of the Criminal Act

The crime of this case is a crime that undermines the distribution order of game products and is not good, and the fact that the crime of this case was committed continuously and repeatedly over a long period exceeding one year is disadvantageous to the defendant.

On the other hand, the fact that the defendant does not repeat again while he reflects his mistake, and that the defendant has no criminal records exceeding the fine is favorable to the defendant.

In addition, in comprehensive consideration of the defendant's age, character, conduct and environment, motive, means and consequence of the crime, the circumstances after the crime, etc., and all the sentencing factors in the course of pleading, the punishment as ordered shall be determined.

Judges Kim Young-gu (Presiding Judge)