[1] The purport of the Tourism Promotion Act stipulating that the act of running a casino business without permission shall be more severe than the crime of opening and opening gambling in the event that the person is equipped with strict facilities and equipment such as an exclusive business place

[2] In a case where a casino business is operated without permission, the case holding that it is difficult to view that the casino business was operated with facilities and standards equivalent to the exclusive use place in light of overall circumstances, such as the size of machines and facilities

[3] The relationship between the crime of violating the Tourism Promotion Act and the crime of opening gambling through an unauthorized casino business (=commercial concurrence)

[1] Article 247 of the Tourism Promotion Act provides that a person who operates a casino business without permission shall be subject to more severe punishment than the crime of opening gambling (Article 247 of the Criminal Act) with regard to an act of operating a casino business without permission by allowing the person to operate the casino business, such as an exclusive business place. Even if the person fails to meet all such requirements, if the person actually conducts casino business without permission after having facilities and equipment equivalent to the exclusive business place, it shall be strictly punished for violating the Tourism Promotion Act, and if the person fails to meet such requirements, it shall be construed that the person intends to punish the person who operates the casino business without having facilities and equipment corresponding to the exclusive business place, i.e., if the person actually conducts gambling without having facilities and equipment corresponding to the exclusive business place. Whether the person actually satisfies the facilities and equipment corresponding to the exclusive business place shall be determined by comprehensively taking into account the size of the apparatus and facilities, the location and size of the place of business, the period of business, the role of the employees, etc.

[2] In a case where a casino business is run without permission, the case holding that it is difficult to view that the game machine operated the casino business with facilities and standards corresponding to the exclusive use place (specialized place of business) in light of all the circumstances, including the following: although the game machine prepared by the defendant et al. was employed separately by staff members in charge of money exchange and withering, it is difficult to view that the game machine operated the casino business with facilities and standards corresponding to the exclusive use place (specialized place of business)

[3] The crime of violation of the Tourism Promotion Act and the crime of opening gamblings by unauthorized casino business is an ordinary concurrent crime.

[1] Article 247 of the Criminal Act, Article 81 subparagraph 1 of the Tourism Promotion Act / [2] Article 81 subparagraph 1 of the Tourism Promotion Act / [3] Article 40 of the Criminal Act, Article 247 of the Criminal Act, Article 81 subparagraph 1 of the Tourism Promotion Act

[3] Supreme Court Decision 2008Do3189 Decided June 26, 2008

Defendant

Defendant

Attorney Park Ho-ap

Seoul Central District Court Decision 2009No2480 Decided September 30, 2009

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

We examine the grounds of appeal.

1. Summary of the facts charged

A person who intends to run a casino business, without obtaining permission from the competent authority after meeting the facilities and standards prescribed by the law, such as exclusive business places, but the defendant conspireds with Nonindicted 1, 2, 3, and 4 on March 25, 2009 to 02:30:310, 311, and 312 of the Gangnam-gu Seoul Metropolitan Government Cheongdam-dong, Gangnam-gu from around 22:00 on March 25, 2009, Liber, located in 129, was equipped with 310, 311, and 312, 1, 13, 13 chips, and 5, etc. who found at the same time carried out the casino business, and had Nonindicted 5, etc., receive fees, including opening the casino business at the same time with the purpose of earning profits of an average of two million won per day from the end of February 200 to the above date.

2. The judgment of the court below

For the following reasons, the lower court rejected Defendant’s assertion of misapprehension of the legal doctrine as to violation of the Tourism Promotion Act.

The purpose of the Tourism Promotion Act, which requires a person who operates a casino business to obtain permission from the Minister of Culture, Sports and Tourism with facilities and apparatus of exclusive business place and punish him/her for operating a casino business without permission, is not only to compel a person who intends to operate a casino business to have certain facilities and apparatus, but also to punish a person who operates a casino business without a certain facility and apparatus, and thus, constitutes a violation of the Tourism Promotion Act even when he/she operates a casino business without being equipped with facilities and apparatus prescribed by the above Act and the Enforcement Rule. In addition, in cases of an illegal casino business without permission, there are many cases where he/she moves his/her place after a short-term business place to avoid control due to its nature, and the above provision is to punish

3. Judgment of the Supreme Court

A. Interpretation of the relevant provisions of the Tourism Promotion Act

관광진흥법은 ‘전문 영업장을 갖추고 주사위·트럼프·슬롯머신 등 특정한 기구 등을 이용하여 우연의 결과에 따라 특정인에게 재산상의 이익을 주고 다른 참가자에게 손실을 주는 행위 등을 하는 업’을 카지노업으로 정의하면서( 제3조 제1항 제5호 ) 카지노업의 영업의 종류는 문화체육관광부령으로 정하도록 하고 있는데( 제26조 제1항 ), 관광진흥법 시행규칙 제35조 제1항 에 의하면 카지노업의 영업의 종류는 룰렛, 블랙잭, 포커, 바카라 등 20가지로 정해져 있다.

In addition, according to the Tourism Promotion Act, a person who intends to run a casino business shall obtain permission from the Minister of Culture, Sports and Tourism with facilities and equipment prescribed by Ordinance of the Ministry of Culture, Sports and Tourism, including exclusive business places (Articles 5(1) and 23(1)). According to Article 29 of the Enforcement Rule of the Tourism Promotion Act, the term “facilities and equipment” refers to exclusive business places of not less than 330§³, one or more foreign exchange exchange centers, game instruments and facilities capable of conducting not less than four types of business among the types of casino business, and casino computer facilities that meet the standards prescribed and publicly notified by the Minister of Culture, Sports and Tourism. Furthermore, the Minister of Culture, Sports and Tourism may permit casino business only to facilities meeting the requirements prescribed by Presidential Decree, such as the highest class hotel, and may restrict permission as prescribed by Presidential Decree (Article 21 of the Act). A person who runs a casino business without such permission shall be punished by imprisonment for not more than five years or by a fine not exceeding 50 million won (Article 81 subparag. 1 of the Act)

As can be seen, the Tourism Promotion Act provides that a person who operates a casino business without permission shall be subject to more severe punishment than the crime of opening gambling (Article 247 of the Criminal Act) with regard to an act of operating a casino business without permission when he/she is equipped with strict facilities and equipment, such as an exclusive business place. Even if the person fails to meet all the requirements required under the same Act and the Enforcement Rule thereof, if he/she actually operates a casino business without obtaining permission after having facilities and equipment equivalent to an exclusive business place (a specialized business place), it shall be strictly punished against the crime of opening gambling, i.e., if he/she fails to meet the requirements, and if he/she conducts a casino business without having been equipped with facilities and equipment equivalent to an exclusive business place (a specialized business place), the purport of punishing him/her only for the crime of opening gambling. In addition, whether the person actually satisfies the facilities and equipment equivalent to an exclusive business place shall be determined by comprehensively taking into account the size of the organization and facilities, the location and size of the business place, the period of the business, the role group of employees, etc.

B. In the instant case

In the instant case, the first instance court and the lower court acknowledged the following circumstances based on the evidence duly investigated and adopted by the Defendant, i.e., ① the game apparatus prepared by the Defendant, etc., one prefabricated game board and one chips on the prefabricated game board and one chips on the prefabricated game board, ② the Defendant, along with other co-offenders, carried on casino business six times in total, by moving the place into a casino business, ② the Defendant was engaged in casino business on a total of six occasions. 4 of the six types of hotels, and the rest of the two types of hotels or apartments, ③ the total period of business was about one month from the end of February 2009 to March 27 of the same year, ③ the total period of business was about four days, and four days each place of business was operated separately. However, it is difficult to deem that the Defendant, along with other co-offenders, had the facilities and equipment equivalent to the dedicated casino business.

Nevertheless, the lower court’s conviction of this part of the facts charged is erroneous in interpreting and applying the elements of “a person who operates a casino business without obtaining permission for the casino business” under the Tourism Promotion Act, and does not err by adversely affecting the conclusion of the judgment. Meanwhile, the crime of violation of the Tourism Promotion Act and the crime of opening gambling by an unauthorized casino business are in a commercial concurrent relationship (see Supreme Court Decision 2008Do3189, Jun. 26, 2008). As long as the part on the violation of the Tourism Promotion Act is reversed for the foregoing reasons, the part on the conviction of the crime of opening a gambling which is in a commercial concurrent relationship with the former cannot be exempted.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)