Whether the public notice of the standards for dealing with premiums on the Ministry of Culture and Tourism which prohibits the provision of premiums for game products deemed to be speculative, exceeds the delegation limit under Article 32 subparag. 3 of the former Sound Records, Video Products and Game Products Act or violates the principle of legality, etc. (negative)

In full view of the contents and purport of the provisions of the former Sound Records, Video Products and Game Products Act (amended by Act No. 7943 of Apr. 28, 2006) concerning the classification of game products, types of free gifts, methods of providing free gifts, etc., the Minister of Culture and Tourism, even if a game providing business entity is rated by the Korea Media Rating Board in light of the type of operation, etc. of the game, may provide for use only by a method that does not provide free gifts for game products exceeding the standard, on the basis of game time, time amount per hour per hour per game, cumulative amount of prizes, etc. Thus, it cannot be deemed that the total amount of free gifts per hour exceeds 90,00 won, or the maximum amount of free gifts or free gifts exceeds the authority of the Korea Media Rating Board to provide free gifts under Article 34(c) of the Framework Act or the authority of the Korea Media Rating Board to delegate the provision of free gifts in accordance with the Act.

Article 6 of the former Sound Records, Video Products and Game Products Act (repealed by Act No. 7943 of Apr. 28, 2006) (see current Article 16(2)), Article 32 subparag. 3 (see current Article 28 subparag. 3 of the Game Industry Promotion Act), Article 12 of the Constitution of the Republic of Korea, Article 4 of the Framework Act on Administrative Regulation

Defendant 1 and one other

Defendants

Law Firm Dogn Law Firm, Attorneys Lee Jin-jin et al.

Seoul Eastern District Court Decision 2006No601 Decided October 12, 2006

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

According to the former Sound Records, Video Products and Game Products Act (amended by Act No. 7943, Apr. 28, 2006; hereinafter “Act”), the Korea Media Rating Board (hereinafter “Commission”) shall deliberate and resolve on matters concerning ex post facto management of the rating classification, such as securing the ethics and public nature of game products, etc. and protecting juveniles (Article 5); the Committee shall deliberate and resolve on matters concerning the classification of game products, etc. and confirmation of harmfulness to juveniles; and whether to produce, distribute, or provide for use according to the rating classification of game products, etc. (Article 6); a person who intends to distribute or distribute game products shall, in advance, apply for rating classification to the Committee on the contents of the relevant game products (Article 20(1)); the rating of the game products is “total permitted use” and “18 years old” that anyone can use; the Committee may withhold the rating classification of the game products for 20 years old or older (Article 20(3)); and the Committee may, if it deems it necessary to determine the contents of the rating classification classification of the game products so excessive that it is inappropriate (Article 20-1).

한편, 법 제32조 에서는 게임제공업자는 각 호의 사항을 지켜야 한다고 규정하면서 “3. 게임제공업자는 사행성을 조장하거나 청소년에게 해로운 영향을 미칠 수 있는 다음 각 목에 해당하는 경품제공행위를 하지 아니할 것 가. 문화관광부장관이 정하여 고시하는 종류외의 경품을 제공하는 행위 나. 문화관광부장관이 정하여 고시하는 방법에 의하지 아니하고 경품을 제공하는 행위”를 규정하고 있고, 위 법조항의 위임에 따라 개정된 ‘경품제공업소의 경품취급기준’ 고시(문화관광부 2004. 12. 31. 제2004-14호, 이하 ‘이 사건 고시’라고 한다)에서는 게임제공업자가 제공할 수 있는 경품의 종류 및 경품제공방법 등을 정하면서, ㉮ 1회 게임의 시간(베팅·홀드 등 이용자에 의해서 진행되는 시간은 제외함)이 4초 미만인 게임물, ㉯ 1시간당 총 이용금액이 90,000원을 초과하는 게임물, ㉰ 잭팟누적점수·최고당첨액(주게임, 부가게임, 잭팟게임의 당첨액 등을 모두 포함)·경품누적점수 등이 경품한도액을 초과하는 게임물 등을 사행성 간주 게임물로 규정하고 이들 게임물에 대해서는 경품을 제공할 수 없도록 하였다.

In full view of the contents and purport of the above provisions on the classification of game products, types of premiums, methods of providing premiums, etc., the Minister of Culture and Tourism may provide for the provision of game products exceeding the standard for free gifts only in a way that does not provide premiums, even if the game products are rated by the commission in light of the type of premiums and methods of providing premiums which are provided by the game providing business operators, if the Minister of Culture and Tourism deems that speculation is promoted in light of the operation of the game products, etc., even though the game products are classified by the commission, such as game hours or hours, cumulative amount of prizes, etc., according to the method of the game. Therefore, the instant public notice where the Minister of Culture and Tourism prohibits the provision of premiums for game products exceeding 90,000 won per hour is merely a provision on the method of providing premiums by a game providing business operator in accordance with delegation of Article 32 subparagraph 3 of the Act, and thus, it does not constitute a violation of the authority to classify the game products, or a violation of the law or the principle of no punishment without law or regulation of administrative regulations.

2. As to grounds of appeal Nos. 3 and 4

In light of the purpose of the law that intends to enhance the quality of cultural life of the people and contribute to the development of the national economy by preventing the economic and social harm caused by excessive use of game products, etc., the notice of this case where the commission already received a rating from the commission exceeds 90,000 won per hour, and where the total amount used per hour exceeds 90,000 won, and the notice of this case where the commission prohibits the provision of free gifts for game products exceeding the premium limit amount and the premium accumulated amount exceeds the premium limit amount, it cannot be deemed that the notice of this case deviates from the scope of reasonable discretion to the extent that it goes against the principle of proportionality or is contrary to the principle of trust protection. The assertion in

3. Therefore, the judgment of the court below which found the Defendants guilty is just, and it is so decided as per Disposition by the assent of all participating Justices on the bench, on the grounds that there are no errors in the misapprehension of legal principles as to the limitation of delegated legislation, the principle of legality, the principle of proportionality, and the principle of protection of trust.

Justices Yang Sung-tae (Presiding Justice)