[1] The meaning of "act of offering a good" regulated by the former Sound Records, Video Products and Game Products Act

[2] The case holding that a game providing business operator's act of offering free gifts by paying a stone lottery ticket, regardless of the result of the game, does not constitute a violation of Article 50 subparag. 3 and Article 32 subparag. 3 of the former Sound Records, Video Products and Game Products Act

[1] An act of offering free gifts under Article 32 subparag. 3 of the former Sound Records, Video Products and Game Software Act (repealed by Article 3 of the Addenda to the Promotion of Motion Pictures and Video Products Act No. 7943 of Apr. 28, 2006) and Article 32 subparag. 3 of the Act on Promotion of Motion Pictures and Video Products (Notice of the Ministry of Culture and Tourism No. 2002-18 of the Ministry of Culture and Tourism) is limited to an act of providing free gifts using game products at a game providing establishment, and an act of providing free gifts by a game providing business operator does not constitute an act

[2] The case holding that a game providing business operator's act of offering free gifts by paying a stone lottery ticket to an unspecified number of customers, regardless of the result of the game, does not constitute a violation of subparagraph 3 of Article 50 and subparagraph 3 of Article 32 of the former Sound Records, Video Products and Game Products Act (repealed by Article 3 of the Addenda to the Promotion of Motion Pictures and Video Products Act, Act No. 7943 of April 28, 2006)

[1] Article 32 subparagraph 3 of the former Sound Records, Video Products and Game Products Act (repealed by Article 3 of the Addenda to the Promotion of the Motion Pictures and Video Products Act, Act No. 7943 of Apr. 28, 2006) (see Article 28 subparagraph 3 of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of the current Act) / [2] Article 32 subparagraph 3 of the former Sound Records, Video Products and Game Products Act (repealed by Article 3 of the Addenda to the Promotion of the Motion Pictures and Video Products Act, Act No. 7943 of Apr. 28, 2006) (see Article 28 subparagraph 3 of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

Defendant

Defendant

Attorney Kim Jong-young et al.

Changwon District Court Decision 2004No2587 delivered on June 9, 2005

The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

1. The court below acknowledged the fact that the defendant, a game providing business operator, distributed advertising leaflets that 10,00 won or more of unspecified customers are provided with lottery tickets in order to attract customers in a game room, i.e., e., a frigerite and cash, and provided free gifts by paying the lottery tickets to customers who won at least 10,000 won, among such unspecified customers. The court below acknowledged the provision of subparagraph 3 of Article 32 of the former Sound Records, Video Products and Game Software Act (repealed by Act No. 7943 of Apr. 28, 2006; hereinafter “MtB Act”) to ensure the soundness of the game room and prevent speculation and protect juveniles, and found the defendant not guilty of the act of providing free gifts to customers in accordance with the first type and method of providing free gifts in accordance with the provision of free gifts under Article 32 subparag. 3 of the same Act (hereinafter “No. 20 of the Act”). The court below should interpret the judgment of the court below to punish those who violated the provision of free gifts in a rating classification standard to be provided.”

2. However, it is difficult to accept the judgment of the court below for the following reasons.

Article 32 of the Food and Drug Act provides that "any person who runs a business under subparagraphs 8 through 12 of Article 2 shall observe the following matters," and Article 32 subparagraph 3 of the same Act provides that "a game providing business operator shall not engage in any act falling under any of the following items which may encourage speculation or influence juveniles, provide free gifts other than the types determined and publicly notified by the Minister of Culture and Tourism, and (a) provide free gifts without using the methods determined and publicly notified by the Minister of Culture and Tourism." Accordingly, Article 1 of the notified notice of this case announced by the Minister of Culture and Tourism on December 30, 202 provides that "for the purpose of promoting the sound operation of a game providing business establishment, preventing speculative acts, and protecting juveniles by prescribing the criteria for handling free gifts provided by a game providing business establishment," and Article 2 of the notified notice of this case provides for the types of free gifts, and Article 3 of the notified notice of this case provides that "for the purpose of providing free gifts only to customers in the state of original rating."

However, the main purpose of punishment for the act of providing free gifts in the Act is to prevent the promotion of unique speculation or harmful acts to juveniles in a game providing business. The act of providing free gifts in the game providing business is limited to the case where users of a game providing business are related to the use of game products, and the act of promoting free gifts in the game providing business is not limited to the special behavior of only a game providing business establishment. If the above provision is deemed to prohibit the act of offering free gifts without relation to the outcome of a game providing business and the freedom of business of a game providing business operator, it excessively infringes on the provision of free gifts, and as a result, the notice of this case goes against the principle of no punishment without the law, and goes beyond the limit of delegation of the law, and it is probable to view that the act of offering free gifts is an act of offering free gifts in the 20th place of a game providing business as a result of the amendment of the Act, which provides that the act of offering free gifts should not be subject to the provision of 10th place of a game providing.

Nevertheless, the court below found the defendant guilty of the facts charged of this case on the premise that the defendant can be punished by applying Article 50 subparagraph 3 of the Music Act to the act of providing free gifts regardless of the outcome of game regardless of the outcome of the judgment, and there is an error of law by misunderstanding the legal principles on the interpretation and application of the Music Act and the Notification of this case, and it is obvious that this affected the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)