[1] The meaning of "a device and device produced for the main purpose of using the video product" under the interpretation of Article 2 subparagraph 1 of the Game Industry Promotion Act, which is a definition provision of game products

[2] The case affirming the judgment of the court below which held that the "cateral game machine" which was not produced for the main purpose of using a video product constitutes a game product under Article 2 subparagraph 1 of the Game Industry Promotion Act

[3] Whether an act of running a business of providing game products without being registered with the competent authority for public use can be punished as a violation of Article 45 subparagraph 2 of the Game Industry Promotion Act (negative)

[4] The case holding that the judgment below erred in the misapprehension of legal principles in concluding that the act of operating a business of providing a creat game machine for public use without examining and determining whether the game was classified as a game product constitutes a violation of the Game Industry Promotion Act

[1] If the Act on the Promotion of Game Industry provides for a sound record and video product as well as the former Sound Records, Video Products and Game Products Act (repealed by Article 3 of the Addenda to the Promotion of Motion Pictures and Video Products Act, Act No. 7943, Apr. 28, 2006), with the aim of improving an independent legal system for game products, with respect to the fact that the unique characteristics of the game products are not reflected, the basic regulatory system for the game products was maintained in the legislative process as well as in the Act on the Promotion of Game Industry. In the definition of the former Sound Records, Video Products and Game Products Act, it is apparent that the term “ appliance” is not limited to those produced for the main purpose of use of video products. The Act on the Promotion of the Game Industry is produced with the definition of the said game products, and it can be deemed that the term “video products and apparatus” under the former Sound Records, Video Products and Game Products Act were produced with “principal instruments and apparatus for the main purpose of use of video products”, and even if the provisions of the Act on the Promotion of Game Industry Act on the Establishment of the former Video Industry Act stipulate and Video Products Act are excluded from the scope of the former Video Products Act.

[2] The case affirming the judgment below which held that the "crecil game machine" (one-sreciling a well-known figure) which was not produced for the main purpose of using a video product constitutes a game product under Article 2 subparagraph 1 of the Game Industry Promotion Act

[3] Article 2 subparag. 6-2(a) of the Game Industry Promotion Act defines juvenile game providing business as “business of installing game products for use by the general public among the game products classified pursuant to Article 21,” and Article 26(2) provides that a person who intends to conduct juvenile game providing business shall be punished pursuant to Article 45 subparag. 2, who conducts business without registration in violation of Article 45, with the facilities prescribed by Ordinance of the Ministry of Culture, Sports and Tourism registered with the competent authority, such as the head of Si/Gun/Gu. In light of the language and structure of the aforementioned provision, providing the game products that have not been classified for use by the public does not constitute juvenile game providing business under Article 2 subparag. 6-2(a) of the said Act. Thus, even if such business was not registered with the competent authority, it cannot be punished pursuant to Article 45 subparag. 2 and Article 26(2).

[4] The case holding that the judgment below erred in the misapprehension of legal principles, which concluded that the act of operating a game machine without registering it with the competent authority and providing it for public use without examining and determining whether it is a game product classified, constitutes a violation of the Game Industry Promotion Act

[1] Article 2 subparag. 1 of the Game Industry Promotion Act, Article 2 subparag. 3 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 Apr. 28, 2006) / [2] Article 2 subparag. 1 of the Game Industry Promotion Act / [3] Articles 2 subparag. 6-2 (a), 26 (2), and 45 subparag. 2 of the Game Industry Promotion Act / [4] Articles 2 subparag. 6-2 (a), 26 (2), and 45 subparag. 2 of the Game Industry Promotion Act

[3] Supreme Court Decision 2009Do4590 Decided August 20, 2009 (Gong2009Ha, 1591) Supreme Court Decision 2009Do12650 Decided January 28, 2010 (Gong2010Sang, 487)

Defendant

Defendant

Attorney Park Young-chul

Jeonju District Court Decision 2009No890 Decided February 11, 2010

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

1. The grounds of appeal are examined.

A penal provision shall be strictly interpreted and applied in accordance with the language and text, and shall not be extensively interpreted or analogically interpreted to the disadvantage of the defendant, but a teleological interpretation that takes into account the legislative intent and purpose, history, etc. of the statute shall not be excluded unless it goes beyond the ordinary meaning of the language and text (see Supreme Court en banc Decision 2001Do2819, Feb. 21, 2002, etc.).

Article 2 Subparag. 1 of the Game Industry Promotion Act (hereinafter “Game Industry Promotion Act”) provides that “game products” refers to video products produced so that they can play a game by using information processing technology, such as computer programs, or a mechanical device to enhance the use of leisure time, learning and physical effects, etc., or apparatus and device produced for the main purpose of using such video products.” In interpreting the above provision, it is problematic whether both “equipment” and “equipment” should be “production produced for the main purpose of using video products.”

However, the Game Industry Act was enacted for the purpose of promoting the game industry and establishing a healthy game culture by improving an independent legal system for game products with respect to those that are not reflected only in the unique characteristics of the game products prescribed in the former Sound Records, Video Products and Game Products Act (amended by Act No. 7943, Apr. 28, 2006; hereinafter “the Sound Standards Act”). The basic regulatory framework of the Sound Standards Act in the legislative process is maintained in the Game Industry Act as it is; the Act defines the game products as “video products and instruments produced for the purpose of enabling them to play entertainment using information processing technology, such as computer programs, or their incidental effects, or raising the scope of their main contents such as video products produced for the purpose of using them.” The language and text of the Act is not limited to those produced for the main purpose of using video products, so that they can be seen as those produced for the purpose of using the former Video Products and Video Products Act or those produced for the purpose of using them for the purpose of using them, such as the definition and effectiveness of the Act.

In the same purport, the court below is just in holding that the game machine of this case is a game product under Article 2 subparagraph 1 of the Game Industry Act, and there is no error in the misapprehension of legal principles as to the game product. The ground of appeal on this part is without merit.

2. We examine ex officio.

Article 2 subparag. 6-2(a) of the Game Industry Act defines juvenile game providing business as “business of installing game products for use by the general public among the game products rated pursuant to Article 21,” and Article 26(2) of the same Act provides that a person who intends to conduct juvenile game providing business shall register his/her business with the competent authority, such as the head of a Si/Gun/Gu, by having the facilities prescribed by Ordinance of the Ministry of Culture, Sports and Tourism, and by having the head of a Si/Gun/Gu register his/her business in violation of Article 45 (2). In light of the language and structure of the provision of the same Act, offering the unclassified game products for public use does not constitute juvenile game providing business under Article 2 subparag. 6-2(a) of the Game Industry Act, so even if such business was not registered with the competent authority, it cannot be punished pursuant to Articles 45 subparag. 2 and 26(2) (see, e.g., Supreme Court Decision 209Do459, Aug. 209). 209.

However, since the facts charged of this case alone cannot be confirmed as to whether the game machine of this case was rated, the court below should have first deliberated and judged whether the game machine of this case was rated in light of the above legal principles, and without doing so, concluded that the crime of violation of the Game Industry Act was established against the facts charged of this case. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the Game Industry Act, and it has affected the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)