[1] Whether Article 2 subparag. 4 of the Standard for Handling Gifts at a game providing establishment publicly notified by the Ministry of Culture and Tourism, which has entrusted the Korea Game Industry Development Institute with the authority to designate types of merchandise coupons that can be provided as free gifts (affirmative)

[2] Where a game providing business operator receives a disposition of business suspension in violation of his/her duty not to provide free gifts other than the types determined and publicly notified by the Minister of Culture and Tourism in accordance with the former Sound Records, Video Products and Game Products Act and the Ministry of Culture and Tourism’s standards for free gifts in a game providing business, the case holding that even if the designation of a gift coupon made by the Korea Industrial Development Institute is null and void in accordance with the above public notice provision and its public notice, the above public notice provision does not constitute a premise for the disposition of

[1] Article 32 subparagraph 3 (a) of the former Sound Records, Video Products and Game Software Act (repealed by Act No. 7943 of Apr. 28, 2006, Article 32 subparagraph 3 (a) of the former Act (repealed by Act No. 3943 of the Act on the Promotion of Motion Pictures and Video Products) only granted the authority to determine and announce the types of gift gifts to the Minister of Culture and Tourism, and does not grant the authority to entrust the authority to the Minister of Culture and Tourism to the non-governmental organizations. The Minister of Culture and Tourism does not deem that the authority to designate the types of gift vouchers that can be provided as gift gifts is included in the authority to entrust the authority to the non-governmental organizations. The designation of gift vouchers publicly notified by the Minister of Culture and Tourism pursuant to the invalid public notice is invalid as an administrative act without the authority.

[2] Where a game providing business operator is subject to a disposition of business suspension in violation of his/her duty not to provide free gifts other than the kinds determined and publicly notified by the Minister of Culture and Tourism according to the former Sound Records, Video Products and Game Products Act (repealed by Article 3 of the Addenda to the Promotion of Motion Pictures and Video Products Act, Act No. 7943 of April 28, 2006) and the standards for handling free gifts at game providing establishments publicly notified by the Minister of Culture and Tourism, the case holding that even if the designation of gift certificates by the Korea Industrial Development Institute is null and void in accordance with the above provision of public notice and its public notice, the above provision of public notice is a provision allowing partial exemption from gift certificates

[1] Article 32 subparag. 3 (see current Article 28 subparag. 3) of the former Sound Records, Video Products and Game Products Act (repealed by Act No. 7943 of Apr. 28, 2006, Article 39(1)3 (see current Article 35(1)4 of the Game Industry Promotion Act), Article 6(3) of the Government Organization Act, Articles 10 and 11(1) of the Regulations on Delegation and Entrustment of Administrative Authority, Article 2 subparag. 4 of the former Sound Records, Video Products and Game Products Act (repealed by Article 3 of the Addenda to the Promotion of the Motion Pictures and Video Products Act, Act No. 7943 of Apr. 28, 2006), Article 39(1)3 (see current Article 35(1)4 of the Act on Promotion of the Motion Pictures and Video Products, Article 30 subparag. 13(1) of the former Act on Promotion of the Game Industry, Article 32 subparag. 4(1) of the Government Organization Act, Article 206(3) of the current Act) of the Game Industry Act

Plaintiff (Attorney Jeong-hee et al., Counsel for plaintiff-appellant)

City Mayor Do Governor

Changwon District Court Decision 2006Gudan553 decided July 25, 2006

September 8, 2006

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The defendant's disposition of business suspension for the plaintiff on February 20, 2006 shall be revoked.

1. Basic facts

(a) The process of amending standards for dealing with premiums;

(1) Based on Article 32 subparag. 3 of the Sound Records, Video Products and Game Software Act (hereinafter “The Music Act”), the Minister of Culture and Tourism amended and publicly announced “standards for handling premiums at a game providing establishment” under Article 204-14 of the Ministry of Culture and Tourism’s notification on December 31, 2004. Article 2(2) of the said notification limited to gift certificates among the types of gift offered as a result of games, which are certified by the Minister of Culture and Tourism through an examination by the Korea Game Industry Development Institute, etc. (hereinafter “Korea Game Industry Development Institute”).

(2) On March 31, 2005, the Minister of Culture and Tourism selected and publicly announced 22 kinds of merchandise coupons that can be provided as free gifts in a game establishment through the “Public Notice on Selection of Gift Gift Stamps in a game establishment” (Public Notice on Ministry of Culture and Tourism No. 2005-26). However, the original function of merchandise coupons is lost and merchandise coupons that mainly perform exchange function are crossed, and the above merchandise coupons (this merchandise coupon) are provided as free gifts in a game establishment and their speculation has been promoted, after examining the current status, etc. of merchandise coupon issuers selected as free gifts in a game establishment, the Minister revoked the selection of merchandise coupons in the above 22-type merchandise coupons through the “Public Notice on Revocation of Selection of Gift Stamps in a game establishment” (Public Notice on Ministry of Culture and Tourism No. 2005-64) on June 30, 2005.

(3) On July 6, 2005, the Minister of Culture and Tourism amended and publicly announced “standards for handling premiums at game establishments” under Article 205-9 of the Ministry of Culture and Tourism’s notification on July 6, 2005 (hereinafter “instant notification”), and Article 2 Subparag. 4 of the instant notification limited merchandise coupons among the types of merchandise that may be provided as a result of games to “the merchandise coupons designated by the Korea Game Industry Development Institute.”

(4) The Director of the Korea Game Industry Development Institute, on August 1, 2005, designated and publicly announced seven kinds of merchandise coupons, such as Lone Star Cultural merchandise coupons, issued by Catex, as gift gift certificates. On August 19, 2005, on August 29, 2005, he additionally designated and publicly announced the merchandise coupons issued by Catex as gift certificates, on August 29, 2005, on August 29, 2005, on the merchandise coupons issued by the following communication companies, and on November 28, 2005, on November 28, 2005.

B. Details of the instant disposition

On November 16, 2005, the Plaintiff registered as a distributor in relation to the general game room business in the name of "space tour" (hereinafter "the game room of this case") with the location of the business office of Tong Young-si 163-48 on November 16, 2005, and the Defendant operated the game room of this case. On February 20, 2006, the Plaintiff issued a disposition to the Plaintiff on November 28, 2005, by providing the Plaintiff with the ticket of selling selling goods issued by Escenz Co., Ltd. (hereinafter "Es") as free gifts to unspecified customers, and by applying Article 39 (1) 5 and Article 32 subparagraph 3 of the Music Act to suspend business operation (hereinafter "the game room of this case") for the reason that the Plaintiff offered free gifts other than the kind of gift determined and publicly notified by the Minister of Culture and Tourism (hereinafter "ASS"), 30 days from February 28, 2006.

[Reasons for Recognition] In the absence of dispute, Gap evidence 1-2, Gap evidence 2, 3, 4, Gap evidence 6-9, Eul evidence 2, Eul evidence 8, Eul evidence 8, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Despite the fact that the former Gift Certificates Act (repealed on December 5, 199) which prescribed a registration system and authorization system for merchandise coupon issuers and sellers was abolished so that merchandise coupons can be freely issued and sold without any legal restriction, the introduction of a designation system for merchandise coupons for merchandise coupons which account for at least 90% of the sale of merchandise coupons by the instant public notice, which is not a law, and granting the designation authority to the Korea Game Industry Development Institute in violation of the principle of statutory reservation for restriction on fundamental rights, and the delegation by Article 32 subparag. 3 of the Food and Drug Promotion Act is not only a type of gift gifts (e.g., completes, phrases, tamps, merchandise coupons, merchandise coupons, etc.) and the provision of gift gifts to the Minister of Culture and Tourism, and thus, it is unlawful to invalidate the above public notice, and thus, the disposition based on the invalid public notice is also unlawful.

(2) According to Article 6(3) of the Government Organization Act and Articles 2 subparag. 3, 10, 11(1), 12(2), and 45(1) and (2) of the Regulations on Delegation and Entrustment of Administrative Authority, where an administrative agency intends to entrust part of its duties to a corporation, not a local government, to a corporation, etc., it shall be as prescribed by law. <2> its duties are not directly related to the rights and obligations of the people, such as investigation, inspection, appraisal, and management, and (3) the entrusted agency shall, in principle, conduct open recruitment, and (4) the entrusted agency is limited in the case of the Minister of Culture and Tourism. The public notice of this case where the Minister of Culture and Tourism entrusts the Korea Game Industry Development Institute with the designation of merchandise coupons. As such, the public notice of this case is unlawful since it fails to meet all the requirements of the above ① or ③, the disposition

(3) Since non-designated merchandise coupons cannot further encourage speculation compared to designated merchandise coupons, or affect juveniles more harmful to their interests, the Plaintiff’s non-designated merchandise coupons are not different. The Plaintiff’s non-designated merchandise coupons are used without any choice due to lack of the issuance volume of designated merchandise coupons. If the Plaintiff’s input cost for the opening of the instant game room business falls short of 25 million won due to the instant disposition, then the Plaintiff’s business was suspended due to the instant disposition, the Plaintiff’s loss caused to the Plaintiff’s livelihood and the employees’ loss caused to the Plaintiff’s livelihood, and the Plaintiff’s business was suspended after being subject to the disposition of business suspension. From the beginning of April 2006, the instant disposition is unlawful by abusing and abusing discretionary authority.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Markets:

(1) Determination on the assertion related to the validity of the public notice

Pursuant to the provisions of subparagraph 3 (a) of Article 32 of the Music Promotion Act, the Minister of Culture and Tourism has the authority to determine and announce the types of gift which a game providing business operator may provide, and the authority to designate the kinds of gift certificates that a game providing business operator may provide as gift certificates by prescribing the types of gift gifts that a game providing business operator may provide under Article 2 of the Notification of this case, and by prescribing the kinds of gift certificates that a game providing business operator may provide as gift certificates, the authority to designate the types of gift certificates that a

However, Article 32 subparag. 3 (a) of the Food and Drug Promotion Act only granted the authority to determine and announce the types of premiums to the Minister of Culture and Tourism and did not grant the authority to entrust the affairs to the Minister of Culture and Tourism to the non-governmental organizations. If the Minister of Culture and Tourism specifically determines the types of premiums through the public announcement, the kinds of premiums determined by the Minister of Culture and Tourism shall supplement the contents of the upper juristic person and combine them with the laws and regulations, but it shall not be deemed that the authority to determine and publicly announce

In addition, Article 6 (3) of the Government Organization Act provides that "an administrative agency may entrust affairs not directly related to the rights and obligations of the people, such as investigation, inspection, examination, and management, among its affairs, to a corporation, organization, institution, or individual other than a local government, as prescribed by statutes." Article 10 of the Regulations on Delegation and Entrustment of Administrative Authority provides that "Unless otherwise provided for in other Acts and subordinate statutes, this Decree shall apply with respect to private entrusted affairs," and Article 11 (1) provides that "an administrative agency may entrust affairs not directly related to the rights and obligations of the people, such as investigation, inspection, examination, and management, among its affairs, among its affairs, as prescribed by Acts and subordinate statutes." 1. Administrative action which is simple fact-finding, 2. Affairs requiring special expertise and skills, 4. Administrative affairs which require special expertise and authority of the public, 4. Private sector, even if there is no provision on the private sector of administrative authority of the Korea Development Institute of Gift Gift tickets, which can be directly entrusted to the Korea Development Institute of Gift Bonds.

However, the Plaintiff is obligated not to provide any gift other than the kind of gift specified and publicly notified by the Minister of Culture and Tourism under Article 32 subparag. 3(a) of the Food and Drug Promotion Act and the instant public notice, and is subject to a disposition of suspension of business in violation of its duty. Where the designation of gift certificates issued by the Korea Industrial Development Institute is null and void pursuant to Article 2 subparag. 4 of the instant public notice and its public notice, Article 2 subparag. 4 of the instant public notice is null and void, so the Plaintiff’s duty not to provide any gift other than the gift certificates designated by the Korea Game Industry Development Institute (i.e., the Plaintiff’s right to use non-designated goods as gift certificates should be deemed null and void of the instant public notice). The Plaintiff’s assertion to the effect that Article 2 subparag. 4 of the instant public notice cannot be deemed null and void since Article 2 subparag. 4 of the instant public notice cannot be deemed null and void because it is not the Plaintiff’s duty not to provide any gift other than the gift certificates designated by the Korea Game Industry Development Institute.

(2) Determination on the assertion of discretionary violation

According to the public notice of this case, it is unnecessary to use non-designated goods rights even if there is no restriction on the purchase of goods such as pets, phrases, character products, cultural products, tourist souvenirs, food and essential goods, etc., in addition to merchandise coupons, and there is no need to use non-designated goods rights even if there is no lack of designated goods rights. As seen above, the use of non-designated goods rights without providing other merchandise despite promoting speculation goes against the purport of the law, and the public interest gained by suppressing the use of merchandise coupons encouraging speculation is larger than the private interest that the plaintiff gains by preventing the use of merchandise coupons encouraging speculation, and the public interest gained by suppressing the use of merchandise coupons promoting speculation is larger than that of the plaintiff. Even if the plaintiff violated the disposition of this case (as recognized by the plaintiff, from the opening of business to March 2, 2006) and even after it was discovered, the plaintiff's disposition of this case is also unlawful in view of the fact that the business rights continues to be abused and abused in the same way.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just and it is so decided as per Disposition on the ground that the plaintiff's appeal is without merit.

Judges Park Jong-dae (Presiding Judge)