Defendant 1 and two others

Defendants

Gangwon Knowledge

Attorneys Yellow Jho-ho et al.

Seoul Central District Court Decision 2009No2031 Decided July 22, 2009

1. The part on Defendant 2 among the judgment below is reversed.

Defendant 2 shall be punished by a fine of KRW 3,000,000.

When Defendant 2 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

To order the provisional payment of an amount equivalent to the above fine against Defendant 2.

2. All appeals filed by Defendants 1 and 3 are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of facts

Of the seized evidence Nos. 12 through 15 (the total amount of KRW 5,2890,000,000), 24 million was held by Defendant 1 regardless of the instant crime. Thus, the court below erred by misapprehending the legal principles as to the confiscation of KRW 24 million.

(2) Unreasonable sentencing

The punishment of the lower court (eight months of imprisonment) against Defendant 1 is too unreasonable.

B. Defendant 2 (Unfair Undue Practices)

The sentence of the lower court (six months of imprisonment, two years of suspended execution) against Defendant 2 is too unreasonable.

C. Defendant 3

(1) misunderstanding of facts

Defendant 3, at the direction of Nonindicted 1, did not conspired with Nonindicted 1, etc. to commit the instant crime only because he played a role in the heart name or a supervisory role.

(2) The misapprehension of the legal principle on the violation of the Tourism Promotion Act

(A) The instant crime does not constitute a casino business under Article 5(1) of the Tourism Promotion Act, since the instant crime did not have a professional place of business and did not continue to conduct business for a certain period and at a certain place. Therefore, even if Defendant 3 conspired with Nonindicted 1, etc. and carried on the instant casino business without permission, it does not constitute a violation of the Tourism Promotion Act.

(B) Defendant 3 did not constitute a crime of violating the Tourism Promotion Act, since Defendant 3 only assisted Nonindicted 1 to do so, and did not operate the instant casino.

(3) Unreasonable sentencing

The punishment of the court below (eight months of imprisonment) against Defendant 3 is too unreasonable.

2. Determination

A. Determination on Defendant 1’s grounds of appeal

(1) Determination of misunderstanding of facts

According to the records, on March 26, 2009, before the crime of this case was controlled, Defendant 1 was recognized to have exchanged USD 18,600 at a national bank (Evidence No. 183 pages). Meanwhile, the following circumstances acknowledged by the records are 5,289 million won in total (Evidence No. 117 through 119 pages), and Nonindicted 1 delivered checks, cash, and chips worth KRW 30 million to Defendant 1 (Evidence No. 509,556 pages of the evidence record) before the opening of the casino gambling (Evidence No. 509,556 pages), and Defendant 1 did not have a reasonable ground to view that it was necessary for Defendant 1 to exchange the above money with cash No. 1850,000 won (Evidence No. 1850, Mar. 27, 2009). Thus, Defendant 1 had no reasonable ground to view that it was necessary for Defendant 2 to exchange the said money with cash No. 985, which was exchanged by the police staff No.

(2) Determination on the assertion of unreasonable sentencing

In light of the following circumstances: (a) Defendant 1 had no criminal record of the same kind; (b) Defendant 1 was in charge of money exchange work, which is an important role in casino business, as well as the management of funds for the instant crime; and (c) other circumstances, which are the conditions for sentencing specified in the records and arguments, including the background, scale, circumstances after the instant crime, the above Defendant’s age, character and conduct, and criminal records, the sentence against the above Defendant is too unreasonable, and therefore, the above Defendant’s assertion of unfair sentencing is without merit.

B. Determination on the grounds of appeal by Defendant 2

In full view of the following circumstances: (a) Defendant 2 did not have a criminal record at all; (b) the above Defendant did not play a leading role in the instant crime; (c) the Defendant divided the instant crime and took depth against the Defendant; and (d) other various circumstances that form the conditions for sentencing as specified in the records and pleadings, the lower court’s sentence against the above Defendant appears to be somewhat unreasonable, and thus, it appears that the Defendant’s allegation of unfair sentencing is reasonable.

C. Determination on Defendant 3’s grounds of appeal

(1) Determination of misunderstanding of facts

According to the records, if Defendant 3 prepared a gambling place under the direction of Nonindicted 1, who is the operator of the casino of this case and was in charge of the business of paying accommodation expenses (Evidence No. 561, 587, 588, 625, 628). The fact that Defendant 3 was also in charge of the business of employing and managing employees, such as Durging or monitoring, etc. (Evidence No. 210, 604, 656, 628). When the casino business place is changed to the above employees, it can be recognized that Defendant 3 did the crime of this case in collusion with Nonindicted 1, 1, 2, and 4, etc. According to the above facts, it is reasonable to view that Defendant 3 committed the crime of this case. Thus, Defendant 3’s assertion of mistake of facts is without merit.

(2) Judgment on the misapprehension of legal principles

(A) Determination as to the assertion that it does not constitute a casino business

1) Relevant statutes

A) Tourism Promotion Act

Article 3 (Categories of Tourist Businesses) (1) Types of tourist businesses shall be as follows:

5. Casino business: The business of operating an exclusive business facility in which certain players make a profit while other players sustain a loss as a consequence of probice, playing with specific instruments, such as dice, cards, and slot machines;

Article 5 (Permission and Reporting) (1) A person who intends to run a casino business under Article 3 (1) 5 shall obtain permission from the Minister of Culture, Sports and Tourism by preparing facilities and equipment prescribed by Ordinance of the Ministry of Culture, Sports and Tourism

Article 23 (Standards, etc. for Facilities of Casino Business) (1) Any person who intends to obtain permission for casino business shall have facilities and instruments prescribed by Ordinance of the Ministry of Culture

Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than five years or by a fine not exceeding 50 million won. In such cases, the imprisonment and the fine may be imposed concurrently:

1. A person who runs a casino business without permission under Article 5 (1);

B) Enforcement Rule of the Tourism Promotion Act

Article 29 (Standards for Facilities of Casino Business) (1) Any person who intends to obtain permission for a casino business under Article 23 (1) of the Act shall meet the following standards for facilities and instruments:

1. An exclusive business area of at least 30 square meters;

2. At least one foreign exchange exchange institute;

3. Game instruments and facilities that can conduct at least four types of business among the types of casino business under Article 35 (1);

4. Casino facilities meeting the standards determined and publicly announced by the Minister of Culture, Sports and Tourism;

(2) The criteria under paragraph (1) 4 shall include the following matters:

1. Matters concerning the performance and installation method of hardware;

2. Matters concerning the formation of networks;

3. Matters concerning the operation of systems and the prevention of disability.

4. Matters concerning the security management of systems;

5. Matters on software for the management of money exchange and the management of cash and chips;

2) Determination

A) Whether the casino business does not include the requirements for permission for the casino business under Article 81 subparagraph 1 of the Tourism Promotion Act

A person who intends to operate a casino business shall obtain permission from the Minister of Culture, Sports and Tourism (Article 5(1) of the Tourism Promotion Act), a person who is equipped with facilities and equipment such as an exclusive place of business to obtain permission for a casino business (Articles 5(1) and 23(1) of the Tourism Promotion Act, Article 29 of the Enforcement Rule of the Tourism Promotion Act), and a person who operates a casino business without permission constitutes a violation of the Tourism Promotion Act (Article 81 subparag. 1 of the Tourism Promotion Act).

However, the purport of the above Act and the Enforcement Rule of the Tourism Promotion Act is not only to force a person who intends to operate a casino business to have certain facilities and equipment, but also to punish a person who runs a casino business without obtaining permission because he/she has failed to have certain facilities and equipment. Thus, even if he/she operated a casino business without being equipped with facilities and equipment prescribed in the above Act and the Enforcement Rule, it constitutes a violation of Article 81 subparagraph 1 of the Tourism Promotion Act.

Therefore, Defendant 3’s assertion that the instant casino business place does not constitute a casino business prescribed in the Tourism Promotion Act because it did not have facilities and equipment prescribed in the Tourism Promotion Act and the Enforcement Rule of the Tourism Promotion Act is without merit (if the instant casino business place is interpreted by limiting the casino business to a casino business that satisfies the requirements for permission under Article 5(1) of the Tourism Promotion Act as alleged by the Defendant, the said provision is only a dynamic class of the meaning that a person who satisfies the requirements for permission for a casino

B) Whether a person constitutes a casino business under Article 81 subparagraph 1 of the Tourism Promotion Act only when the person continues to conduct business for a certain period or at a certain place

In order to obtain permission for a casino business under the Tourism Promotion Act and the Enforcement Rule of the Tourism Promotion Act, it shall have an exclusive business place of not less than 330§³, and thus, permission under the above Act is a type of casino business continuously operating at a specific place.

However, as seen earlier, the casino business subject to punishment under Article 81 subparag. 1 of the Tourism Promotion Act does not mean only the casino business that satisfies the requirements for permission, and in the case of an illegal casino business that has not been permitted, there are many cases where the place after the short-term business is moved to avoid crackdown due to its nature, and it is reasonable to view that the above provision aims to punish such a type of casino business. Thus, even if a person operates a casino business for a short-term business, it constitutes a violation of Article

Therefore, Defendant 3’s assertion that the instant casino business does not constitute a casino business under the Tourism Promotion Act because the instant casino business was not operated continuously for a certain period or at a certain place is without merit.

(B) Determination as to the assertion that the instant casino was not operated

As seen earlier, Defendant 3 committed the instant crime in collusion with Nonindicted 1, the operator of the instant casino, and even if Defendant 3 is not the operator of the instant casino, Defendant 3 is liable for the joint principal offense of violating the Mine Promotion Act. As such, Defendant 3’s assertion of this part of the misapprehension of the legal doctrine is without merit.

(3) Determination on the assertion of unreasonable sentencing

In full view of the various circumstances, including the background and scale of the instant crime, the circumstances after the instant crime, the age of the said Defendant, character and conduct, and the record and arguments, Defendant 3, who served as an important role in the instant crime, did not go against the law, and the fact that the instant crime was committed even though he was under criminal trial for the same kind of crime, and other various circumstances, which are the conditions for sentencing as shown in the record and pleadings, it cannot be deemed that the Defendant’s punishment against the said Defendant is excessively unreasonable, and therefore, the Defendant’s allegation of unfair sentencing is without merit.

3. Conclusion

Therefore, since Defendant 2’s appeal is well-grounded, pursuant to Article 364(6) of the Criminal Procedure Act, the part of the judgment of the court below against Defendant 2 is reversed and it is again decided as follows. Defendant 1 and 3’s appeal is without merit, and it is all dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

The summary of the facts charged and evidence against Defendant 2 recognized by this court is identical to each corresponding column of the judgment below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Articles 81 subparag. 1 and 5(1) of the Tourism Promotion Act, Article 30 of the Criminal Act (the point of operation of casino business without permission), Article 247 of the Criminal Act, Article 30 of the Criminal Act (the point of operation of gambling place)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Offences of Violation of the Tourism Promotion Act, Crimes of Gambling and Gambling)

1. Selection of punishment;

Selection of Fines

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

It is so decided as per Disposition for the above reasons.

Judges Lee Young-young (Presiding Judge)