[1] Whether a notice on the criteria for dealing with free gifts of the Ministry of Culture and Tourism, which provides that a person cannot provide free gifts for a game deemed to be a speculative game, exceeds the limit of delegated legislation under Article 32 subparag. 3 of the former Sound Records, Video Products and Game Products Act (negative)

[2] In a case where the Ministry of Culture and Tourism revised a public notice on the criteria for dealing with free gifts to which the previous provision of free gifts is permitted, and the game providing business operator is granted a grace period of 60 days from the date of implementation, whether the principle of protection of trust and proportionality are violated (negative)

[3] Whether delegation to the Minister of Culture and Tourism for the detailed contents of an offer of free gifts prohibited under Article 32 subparag. 3 of the former Sound Records, Video Products and Game Products Act is against the principle of no punishment without law (negative in principle)

[1] Article 32 subparag. 3 of the former Sound Records, Video Products and Game Software Act (repealed by Act No. 7943 of Apr. 28, 2006) provides that a game providing business entity shall not encourage speculation or provide free gifts that may adversely affect juveniles. However, Article 32 subparag. 3 of the former Sound Records, Video Products and Game Products Act provides that a game providing business entity may provide free gifts of the kind determined and publicly notified by the Ministry of Culture and Tourism only in such a manner as determined and publicly notified by the Ministry of Culture and Tourism. The purport of the provision is to prevent the speculation of the game providing free gifts and to delegate the specific method of implementation to the public notice. Thus, the provision that the Minister of Culture and Tourism is unable to provide free gifts for the game providing deemed to be a speculative game by the public notice on the criteria for handling free gifts does not exceed the limit of delegation by acts prohibited under Article 32 subparag. 3 of the former Sound Records, Video Products and Game Products Act (repealed by Act No. 7943 of Apr. 28, 2006).

[2] The Ministry of Culture and Tourism revised a public notice on the criteria for dealing with free gifts to ensure that the provision of previous free gifts is not possible, and the provision of free gifts to a game providing business operator shall not be deemed to violate the principle of trust protection and the principle of proportionality in the event that a grace period of 60 days has been granted to a game providing business operator from the date of its implementation.

[3] The principle of no crime without the law protected under Articles 12 and 13 of the Constitution refers to that a crime and punishment should be determined by law. Article 50 subparagraph 3 of the former Sound Records, Video Products and Game Products Act (repealed by Act No. 7943, Apr. 28, 2006) provides that "any person who violates Article 32 subparagraph 3 of the same Act shall be punished by imprisonment for not more than two years or by a fine not exceeding twenty million won," and Article 32 subparagraph 3 of the same Act provides that "no game providing business operator shall promote speculation or provide free gifts that may affect juveniles, which shall be harmful to juveniles," and Article 32 subparagraph 3 of the same Act provides that "the act prohibited by the game providing business operator shall not engage in any act of giving free gifts, which is delegated to the Ministry of Culture and Tourism for the specific contents of the act of providing free gifts prohibited by Article 32 subparagraph 3 of the same Act, and therefore the above notice shall not be deemed to violate the principle of no punishment without the law.

[1] Article 32 subparag. 3 of the former Sound Records, Video Products and Game Software Act (repealed by Act No. 7943 of Apr. 28, 2006) / [2] Articles 13(2) and 37(2) of the Constitution of the Republic of Korea, Article 7(2) of the former Sound Records, Video Products and Game Software Act (repealed by Act No. 7943 of Apr. 28, 2006) / [3] Articles 32 subparag. 3 and 50 subparag. 3 of the former Sound Records, Video Products and Game Software Act (repealed by Act No. 7943 of Apr. 28, 2006), Articles 12 and 13 of the Constitution of the Republic of Korea

[2] Constitutional Court en banc Order 9Hun-Ma574 delivered on July 18, 2002 (Hun-Gong71, 633)

Defendant

Defendant

Kim Jin Kim

Law Firm Dura, Attorneys Kim U-American et al.

Seoul Western District Court Decision 2005Gohap1247 decided Dec. 28, 2005

The defendant's appeal is dismissed.

1. Summary of grounds for appeal by the defendant;

A. Legal principles

The lower court applied Article 50 Subparag. 3 and Article 32 Subparag. 3 of the former Sound Records, Video Products and Game Products Act (amended by Act No. 7943 of Apr. 28, 2006; hereinafter referred to as the “Food Act”) on the premise that the game products offered by the Defendant in the game (hereinafter referred to as “the instant game products”) constituted “the game deemed to be a speculative game” as stipulated in the Public Notice on Standards for Handling Gift on the Ministry of Culture and Tourism amended as of December 31, 2004 (hereinafter referred to as the “Public Notice”). On the following grounds, the lower court erred by misapprehending the legal doctrine and thereby convicting the Defendant of the facts charged.

(1) A deviation from the limitation of delegated legislation

Article 32 Subparag. 3 of the Food and Drug Promotion Act only delegates the authority to determine “type of a light product” and “providing method of a light product” as a public notice by the Minister of Culture and Tourism, and does not have any explicit delegation to stipulate “game products deemed to be a speculative game.” In the instant public notice, the provision of “game products deemed to be a speculative game” exceeds the scope of delegation under Article 32 Subparag. 3 of the Food and Drug Promotion Act.

(2) Violation of the principle of trust protection.

The Defendant was rated as “game products 18 years old or older” by the Korea Media Rating Board, and thus trusted and purchased the instant game products and provided them for the game. The Ministry of Culture and Tourism, contrary to the Defendant’s trust, provided that the instant game products fall under “game products deemed to have speculation” by the public notice of this case, violates the principle of protection of trust.

(3) Violation of the proportionality principle

The instant notice considers the instant game product as “the game product deemed to be a speculative act” and, by forcing the Defendant and other game providing business operators to substantially discontinue business or suspend business, thereby excessively infringing on the private interests of the game provider, including the Defendant, and thus violating the principle of proportionality.

(4) Violation of the principle of no punishment without law

It is against the principle of no punishment without the law to decide the punishment in accordance with the criteria set forth in the notice of this case.

B. Unreasonable sentencing

Even if the defendant is found guilty, in light of various circumstances such as the circumstance leading up to the crime of this case, the sentence of the court below (2 million won) is too unreasonable.

2. Determination on the grounds for appeal

A. Judgment on the misapprehension of legal principles

(1) Whether it deviates from the limitation of delegated legislation

Article 32 subparag. 3 of the Food and Drug Act provides that a game providing business operator shall not promote speculation or provide free gifts that may affect juveniles. However, the purport of Article 32 subparag. 3 of the Food and Drug Act is to prevent the speculation of game products that provide free gifts and to delegate specific methods of implementation to the public notice. Thus, the Ministry of Culture and Tourism’s provision that the Ministry of Culture and Tourism is unable to provide free gifts for the game products deemed to be speculation by the public notice of this case is merely a specification of the contents of the act of providing free gifts as prohibited pursuant to Article 32 subparag. 3 of the Food and Drug Act within the scope of delegation, and it does not exceed the limit of delegated legislation.

(2) Whether the principle of trust protection or the principle of proportionality is violated

The public notice of this case set the criteria for handling premiums provided at a game providing establishment as delegated by Article 32 subparag. 3 of the Music Act for the purpose of protecting juveniles and preventing speculative acts to contribute to the sound operation of the game providing establishment. In particular, the public notice of this case set the criteria for the types of premiums and methods of paying premiums provided at the game providing establishment as delegated by Article 32 subparag. 3 of the Music Act, and made it impossible to pay premiums after classifying some of the game products that encourage speculation as game products if premiums are paid after passing through the speculative nature as the game of this case.

However, from the perspective that business activities of a game providing business entity, such as the defendant, etc. do not belong to the private economic activities induced by the State in order to achieve specific economic policy objectives, but are merely a case of utilizing opportunities given by the law by itself as a risk burden, it cannot be deemed as a trust interest that should be specially protected prior to the interests of the amendment of the relevant regulations, such as the notice of this case, intended to prevent speculative acts and contribute to the sound operation of a game providing business establishment by preventing the impacts on the game site and related game industry

However, in light of the fact that the defendant had lawfully operated a game room business, it is necessary to individually determine each specific case in consideration of the protection value of trust interests, the degree of infringement that can be flexibly cope with, or the purpose of public interest to be realized through the revised law, etc. (see, e.g., Constitutional Court en banc Decision 9Hun-Ma574, Jul. 18, 2002). The following circumstances revealed in the records and arguments, i.e., the notice of this case has a grace period for 60 days from the date of its implementation, and such grace period can no longer be provided to the defendant with the same method as before the announcement of this case, and whether it can be seen that it is possible to use the game of this case with some different method, such as where it is difficult for the defendant to use the game of this case to use the game of this case for the same purpose as before the announcement of this case, or where it is impossible to use the game of this case with some different method, such as the announcement of this case to the extent that it can no longer be available before the announcement of this case.

Ultimately, the instant notice is sufficiently taking account of the trust interests of the game providing business operators, such as the Defendant, and cannot be deemed to violate the principle of trust protection and the principle of proportionality.

(3) Whether it violates the principle of no punishment without law

Article 12 and Article 13 of the Constitution of the Republic of Korea provide that crimes and punishment shall be determined by law. Article 50 Subparag. 3 of the Food and Drug Act provides that a person who violates Article 32 Subparag. 3 of the Food and Drug Act shall be punished by imprisonment for not more than two years or by a fine not exceeding 20 million won. Article 32 Subparag. 3 of the Food and Drug Act provides that a game providing business operator shall not engage in any act of providing free gifts which may encourage speculation or have harmful effects on juveniles, and stipulates in the Act regarding prohibited acts and punishment. However, Article 32 Subparag. 3 of the Food and Drug Act delegates to the Ministry of Culture and Tourism only the specific contents of the act of providing free gifts prohibited by Article 32 Subparag. 3 of the Food and Drug Act, and as seen earlier, the notice of this case does not violate the principle of no punishment without law, unless it exceeds the scope of delegation of Article 32 Subparag. 3 of the Food and Drug Act.

(4) Therefore, the defendant's ground of appeal for misapprehension of legal principles is without merit.

B. Determination on the grounds for appeal on unreasonable sentencing

Even after the grace period for the notice of this case has expired, the defendant continued to provide the game of this case to the game of this case, the quantity of the game of this case by the defendant exceeds 48, and the speculative nature of the game of this case is relatively high, and in light of various circumstances such as the defendant's age, character and conduct, environment, etc., the sentence of the court below cannot be deemed to be heavy, and therefore, the defendant's assertion of the grounds for appeal on unfair

3. Conclusion

Therefore, the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Park Jae-chul (Presiding Judge)