Defendant 1 and one other

Prosecutor

Non-permanent iron (prosecution), Kim Sea (Trial)

Law Firm Man & Yang, Attorneys Yellow-ho et al.

Seoul Northern District Court Decision 2012Gohap1809 Decided December 28, 2012

All appeals filed by the prosecutor against the Defendants are dismissed.

1. Summary of the grounds for appeal;

A. It is more so in light of the fact that the filling limit of the instant capital or game money constitutes “content” as provided by Article 32(1)2(a) of the Game Industry Promotion Act (hereinafter “Act”), and in particular, in the case of filling game money by the CPA method, it is more so in light of the fact that the game begins simultaneously with charging.

B. After purchasing the instant game money, if it is difficult to exchange the game money, and it is substantially possible to charge more than the filling limit that received due to the impossibility of exchange, in light of the fact that each of the instant game products causes property loss to the users of each of the instant game products, it constitutes a ground for refusal of classification under the Review Regulations of the Game Rating Board (hereinafter “Review Regulations”) (hereinafter “Committee”).

C. Therefore, the court below acquitted the Defendants of the facts charged despite the Defendants’ “act of providing game products with contents different from those of the grade” prohibited under Article 32(1)2 of the Act. The court below erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2. Determination

A. The issues of the instant case

The Act does not stipulate the definition of “content” of game products, so whether the instant capitaling limit or the game money filling limit falls under “content” under Article 32(1)2 of the Act, and whether the modification of the filling limit provides “other contents of game products” under Article 32(1)2 of the Act shall be determined by considering the legislative purpose under Article 1 of the Act, the legislative purpose under Article 1 of the Act, the purport of the rating system under Chapter 4 of the Act, and the following provisions:

(b) arranging relevant regulations;

Article 2 Subparag. 2 of the Act defines “information on the contents of a game product” as “information on the contents of a game product”, and Article 21(1) of the Act provides that “any person who intends to produce or distribute a game product for the purpose of distributing the game product or providing for the use thereof shall undergo a rating from the Committee before producing or distributing the game product concerned.”

Article 21(2) of the Act classify the rating of a game product as “total user, 12 years of age, 15 years of age, and 15 years of age, and not available for juveniles.” Article 8 of the Enforcement Rule of the Act stipulates, based on the rating classification, “the degree of expression of obscenity, violence, etc., which may affect users’ harmful effects” and “the degree of expression of specific ideas, religions, etc., which may affect users mentally and physically,” and the detailed classification criteria accordingly are prescribed by the committee’s regulations.

Article 28 subparag. 2-2 of the Act provides that "no game business entity shall encourage speculation through an operation method closely related to the realization of the contents of the game" as one of the "matters to be observed by the game business entity." Article 9-2 (3) of the Enforcement Rule of the Act provides that "the Committee shall return a report pursuant to paragraph (1) of this Article and notify the reporter of the purport of return, etc., without delay, where the contents of the game product reported as the content revision are significantly changed or the contents of the game account (referring to information or contents on the use of specific game users) are not succeeded." In such cases, where the contents of the game product reported as the content revision are not succeeded, the Committee shall immediately return the report pursuant to Article 21 (5) of the Act and notify the reporter of the purport of return."

Article 6 subparag. 1 of the Review Regulations provides that "the principle of classification shall not be subject to classification for parts other than contents", and Article 18 subparag. 1 of the Review Regulations provides that "Where the usage fees are likely to fall outside the normal scope, and the use fees may be verified as speculative game products and the rating may be refused."

Article 2 subparagraph 1 of the Act defines "game products" as "game products" except for "game products", and Article 2 subparagraph 1-2 of the Act defines "game products that give property profits or losses according to the result of a game" as "speculative game products."

C. Interpretation of relevant provisions

In full view of the above provisions, the "operating method" related to the "privateity" shall be deemed to fall under the "content" of the game product as the subject of the rating classification, and it shall be more so in light of the content "the modification of the method of use" in Article 9-2 (3) of the Enforcement Rule of the Act and "the modification of the method of use" in Article 9-2 (3) of the Enforcement Rule of the Act shall be included in the scope of the modification. However, in principle, in consideration of the principle of no punishment without the law and the principle of clarity and the deliberation rules, only the contents "in principle, as a game product as the subject of the rating classification among the operating methods or the methods of use" should be extremely limited, and the criteria for determining whether the contents "content" are included in the "content" shall ultimately be determined whether there is a relation with the expression of the contents of the game product

D. Application to the instant case

The instant game money is merely a tool used by the user for the purchase of other services or goods within the instant game money and the instant game portal. The instant game money is a tool used for the use of each of the instant game money, and the purchase of the instant game money is merely a preparatory procedure for the use of the game prior to the commencement of each of the instant game. Therefore, the instant game money filling limit is not related to the realization of the contents of each of the instant game. The prosecutor’s assertion that the instant capital or the instant game money filling limit falls under the “content” of each of the instant game products on the ground of Article 18 subparag. 1 of the Review Regulations, but it is not clear standard for the scope of “normal” in determining where the game providing business operator is likely to engage in gambling beyond normal limits, and it is against the principle of no punishment without the law, in light of the fact that the game industry does not limit the charging limit, and that the restriction on the filling limit was voluntarily set and voluntarily set, it constitutes the content of the instant game money subject to the foregoing Review Regulations.

In addition, as argued by the Prosecutor, even if the user of each of the instant game products causes property loss to the user due to impossibility of money exchange after purchasing the instant capitalsh or game money, this does not constitute property loss under “the result of the game,” and thus, it cannot be deemed that the filling limit of the instant capital or game money is related to “private behavior.”

E. Sub-decision

Thus, the limit of the filling of the instant capital or game money cannot be deemed as the subject of the rating, and even if the Defendants provided each of the instant game products to make it possible for the Defendants to charge more than the filling limit specified at the time of the rating using gift or CPA methods, it cannot be deemed as having provided game products different from the contents of the rating. Thus, the prosecutor’s assertion is without merit.

3. Conclusion

Therefore, since all appeals by the prosecutor against the defendants are without merit, they are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judge Kang Sung-sung (Presiding Judge)