The defendant's appeal is dismissed.

1. Summary of the grounds for appeal (misunderstanding of legal principles or factual errors);

A. The Defendant’s act does not constitute “game products” under Article 2 subparag. 1 of the Game Industry Promotion Act, which argues that the elements of a game are not satisfied (hereinafter “Game Industry Act”). Therefore, the Defendant’s act cannot be punished pursuant to the Game Industry Act.

B. Although the Defendant alleged that the punishment provision is null and void, as stated in the facts charged in the instant case, provided premiums exceeding KRW 5,00 in excess of the consumer sale price, Article 4(1)1-2 and Article 28 subparag. 3 of the Game Industry Act (hereinafter “instant punishment provision”) violates the principle of no punishment without the law and the principle of prohibition of comprehensive delegation of legislation, the principle of clarity, etc., violates the Defendant’s freedom of occupation and the right to pursue happiness, and violates the rule of law, the State’s duty to guarantee fundamental rights, and the principle of national sovereignty, and thus is unconstitutional and void.

2. Determination

A. With respect to the assertion that there is no possibility of meeting the requirements of a game product, the term " apparatus and device produced for the main purpose of using the video product" in the main text of Article 2 subparagraph 1 of the Game Industry Act refers to " apparatus and device produced for the main purpose of using the video product" and the term "game product". Even if the device was not produced for the main purpose of using the video product, if it is manufactured for the main purpose of making it possible to play a game by using data processing technology, such as computer programs, or equipment, or for raising leisure use, learning and physical effects, etc., it shall be interpreted as falling under "game product" in Article 2 subparagraph 1 of the Game Industry Act. It shall be interpreted as falling under "game product" in Article 2 subparagraph 1 of the Game Industry Act, which is not produced for the main purpose of using the video product, and thus, it shall be deemed as falling under the scope of "game product" in Article 2 subparagraph 1 of the Game Industry Act.

Supreme Court Decision 2010Do3358 Decided June 24, 2010