[1] The meaning of "speculative game products" excluded from game products subject to the Act on the Promotion of Game Industry

[2] Whether a person can be punished pursuant to Article 44(1)1 and 1-2 of the Game Industry Promotion Act for engaging in speculative acts or providing free gifts, etc. using a "speculative game product" (negative)

[1] Article 2 subparag. 1 (a) and Article 1-2 of the Game Industry Promotion Act / [2] Article 28 subparag. 2 and 3, Article 44(1)1 and Article 44(1)2 of the Game Industry Promotion Act

[1] [2] Supreme Court Decision 2009Do11666 Decided January 28, 2010, Supreme Court Decision 2009Do12650 Decided January 28, 2010 (Gong2010Sang, 487) / [2] Supreme Court Decision 2009Do13078 Decided January 28, 2010, Supreme Court Decision 2009Do13875 Decided January 28, 2010

Defendant

Defendant

Attorney Lee Dong-soo

Seoul Southern District Court Decision 2009No1654 decided October 21, 2009

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

Before determining the grounds of appeal, we examine ex officio the violation of the Act on the Promotion of Game Industry due to the speculative design for providing premiums.

1. The Game Industry Promotion Act (amended by Act No. 8247 of Jan. 19, 2007) provides, unlike the former Game Industry Act (amended by Act No. 8247 of Jan. 19, 2007), the term “speculative game products” means video products produced so that they can play a game by using data processing technology, such as computer programs, or mechanical devices, or enhance leisure use, learning, and physical exercise effects, etc., or apparatuses and equipment produced for the main purpose of using such video products, unlike the former Game Industry Act (amended by Act No. 8247 of Jan. 19, 2007), which excludes “speculative game products” from game products; game products with betting or distribution contents; horse racing regulated by the Korean Racing Association Act; bicycle and motorboat racing regulated by the Korean Racing Association Act; game products with ambiguous contents regulated by the Act; and game products with profits and losses regulated by the Tourism Promotion Act or those regulated by the Game Industry Act; and thus, the term or losses of the game products shall be restricted by Article 2 of the Game Industry Act or its own profits.

Meanwhile, Article 28 of the Game Industry Act provides that "game products related business entities shall observe the following matters." Article 28 subparagraph 2 provides that "The game products shall not allow others to gamble or perform other speculative acts, or leave them to do so by using the game products." Article 44 (1) 1 of the Game Industry Act provides that "the game products shall not encourage speculation by providing congratulations, etc.," and Article 44 (1) 2 of the same Act provides that "the game products shall be punished against persons who violate Article 28 subparagraph 2 of the same Article, and Article 44 (1) 1-2 of the Game Industry Act provides that "the game products related business entities shall be punished pursuant to Article 44 (1) 1 or 1-2 of the same Act," and Article 2 subparagraph 9 of the Game Industry Act provides that "the game products related business entities shall be defined as "the game products related business entities" under Article 6 of the same Act shall be defined as "the game products related business entities".

In full view of the provisions of the Game Industry Act concerning the “game related business entity” and the “game providing business,” as seen earlier, a business that provides a speculative game not falling under a game product for the public’s use is not a “game providing business” under Article 2 subparag. 6 of the Game Industry Act, and thus, a person who conducts such business is not a “game related business entity” under Article 2 subparag. 9 of the same Act. Furthermore, “game products” under Article 28 subparag. 2 of the Game Industry Act refers to “game products” under Article 2 subparag. 1 of the Game Industry Act.

Therefore, even if a person caused customers to perform speculative acts using a speculative game product, or provided free gifts, etc. to customers who use a speculative game product, such act cannot be punished pursuant to Article 44(1)1 and Article 28 Subparag. 2 of the Game Industry Act or Article 44(1)1-2 and Article 28 Subparag. 3 of the Game Industry Act (see, e.g., Supreme Court Decision 2009Do12650, Jan. 28, 2010).

2. According to the reasoning of the judgment below and the record, since the game product of this case "the game product of this case" (hereinafter "the game product of this case") appears to be a game product as if the gift certificates were discharged from the game machine with the result of betting determined and accumulated points, it is sufficient to regard it as a speculative game product. Thus, without clarifying the fact that the game product of this case is not a speculative game product, the judgment of the court below that the charge of promoting speculation by providing free gifts, etc. according to the result of the game of this case constitutes a violation of the Game Industry Act is erroneous in the misapprehension of legal principles as to the Game Industry Act, and this affected the conclusion of the judgment, and this part of the judgment of the court below cannot be maintained.

3. Therefore, of the judgment of the court below, the part of violation of the Game Industry Act due to the speculative landscape of providing premiums should be reversed, and since the remaining violation of the Game Industry Act, which was sentenced to a single punishment due to the substantive concurrent relation, shall be reversed together, the judgment of the court below is entirely reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent

Justices Yang Sung-tae (Presiding Justice)