[1] Whether a device or device that can be used for "video works" under the main sentence of Article 2 subparagraph 1 of the Game Industry Promotion Act, but cannot be produced for the main purpose can be confiscated based on Article 44 (2) of the same Act (negative)

[2] The case affirming the judgment below which held that a seized computer cannot be confiscated on the ground that it cannot be seen as "a device and device produced for the main purpose of using the video product", which is a "game product" under Article 2 subparagraph 1 of the Game Industry Promotion Act

[1] Article 1(1) of the Criminal Act, Article 12(1) of the Constitution, Article 2 subparag. 1 and Article 44(2) of the Game Industry Promotion Act / [2] Article 2 subparag. 1 and Article 44(2) of the Game Industry Promotion Act

[1] Supreme Court Decision 2005Do6525 Decided May 12, 2006, Supreme Court Decision 2009Do3053 Decided December 10, 2009 (Gong2010Sang, 180)

Defendant

Prosecutor

Cheongju District Court Decision 2009No907 Decided November 11, 2009

The appeal is dismissed.

The grounds of appeal are examined.

1. The main text of Article 2 subparag. 1 of the Game Industry Promotion Act (hereinafter “Game Industry Promotion Act”) provides that “game products” means video products produced so that one may play a game by using data processing technology, such as computer programs, or machinery and apparatus to make good use of leisure time, increase the effect of learning and physical exercise, etc., or apparatus and apparatus produced for the main purpose of using such video products.” Article 44(2) of the Game Industry Act provides that “The game products owned or occupied by a person falling under the provisions of Article 44(1) of the Game Industry Act, the profits generated by such criminal act (hereinafter “criminal profits”) and the property derived from criminal proceeds shall be confiscated, and if confiscation is impossible, the value thereof shall be collected additionally.”

Although a teleological interpretation that takes into account the legislative intent, purpose, legislative history, etc. of the Act is not excluded in interpreting the provisions of each provision of the Game Industry Act in the interpretation of the provisions of each provision of the same Act, the interpretation of the provisions of the same Act shall be strict, and the interpretation of the provisions of the penal law shall be excessively expanded or analogical interpretation in the direction unfavorable to the defendant is not permitted as it is in violation of the principle of no punishment without the law (see, e.g., Supreme Court Decisions 2005Do6525, May 12, 2006; 2009Do3053, Dec. 10, 2009). In full view of the language, content and form of the provisions of Article 2 subparag. 1 of the Game Industry Act, and the apparatus and devices that can be used for the use of video works, but can not be produced mainly for this purpose, it is reasonable to deem that such equipment and devices cannot be forfeited on the ground of Article 44(2)2 of the Game Industry Act.

2. According to the reasoning of the lower judgment, the lower court determined that: (a) even if based on the language and text of Article 2 Subparag. 1 of the Game Industry Act, it is difficult to view the instant confiscated articles as falling under “equipment and device produced for the main purpose of using the said images” by itself; (b) the Defendant’s leased and installed the instant confiscated articles from Nonindicted Co., Ltd.; (c) did not immediately commit the instant crime; and (d) completed the registration of Internet computer game facility providing business on Oct. 31, 2008 with the idea of operating the instant confiscated articles on Nov. 1, 2008; (c) operated the instant confiscated articles on a leased basis on Nov. 20, 2008, on the ground that the instant confiscated articles were committed only from Jan. 4, 2009, which did not make profits to the point of view; and (d) did not constitute “game products” under Article 2 Subparag. 1 of the Game Industry Act.

In light of the above legal principles and records, such determination by the lower court is justifiable. In so doing, it did not err by misapprehending the legal principles on game products provided in the main sentence of Article 2 subparag. 1 of the Game Industry Act and subject to forfeiture provided in Article 44(2) of the Game Industry

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)