[1] Whether a person may be punished pursuant to Article 44(1)1 and 1-2 of the Game Industry Promotion Act, where a person allows customers to perform speculative acts or provide free gifts, etc. using “private game products” (negative)

[2] Whether a person may be punished pursuant to Article 45 subparagraph 2 of the Game Industry Promotion Act, where a person conducts a business that provides "speculative game products" for public use without permission from the competent authority (negative)

[1] In full view of the fact that the provisions of the Game Industry Promotion Act and the "game products related to the game industry" are excluded from the game products, the business of providing "speculative game products" that do not fall under the game products for public use does not fall under the "game providing business" under Article 2 subparagraph 6 of the same Act, and thus, the person who conducts such business does not fall under the "game providing business" under subparagraph 9 of Article 28 of the same Act, and the "game products" under subparagraph 2 of Article 28 of the same Act refers to the game products under subparagraph 1 of Article 2 of the same Act. Therefore, even if "game products related to speculative game products" causes customers to perform speculative acts, or give prizes, etc. according to the result of the game to customers who use "speculative game products", it shall not be punished pursuant to Article 44 (1) 1 and Article 28 subparagraph 2 of the same Act or Article 44 (1) 1-2 and Article 28 subparagraph 3 of the same Act.

[2] Article 2 subparagraph 6-2 (b) of the Game Industry Promotion Act defines a general game providing business as "business providing game products not permitted for use by juveniles and all game products for use by the public" among game products classified pursuant to Article 2 subparagraph 6-2 (b) of the same Article, and Article 26 (1) provides that a person who intends to conduct a general game providing business without permission shall obtain permission from the competent authority, and a person who conducts a business without permission in violation of Article 45 subparagraph 2 of the same Act is punished pursuant to Article 45. In addition, in light of the language and structure and structure of the above provision, interpretation of penal provisions should be strict, and interpretation or analogical interpretation to the disadvantage of the defendant is not allowed, providing "game products not classified" for use by the public does not constitute a general game providing business under Article 2 subparagraph 6-2 (b) of the Game Industry Promotion Act. Thus, even if a person provides "private game products" other than game products for use by the public, it does not constitute a general game providing business under Article 2 subparagraph 2-2 (b) of the same Act.

[1] Article 28 subparag. 2 and 3, Article 44(1)1 and 1-2 of the Game Industry Promotion Act / [2] Article 2 subparag. 6-2(b), Article 26(1) and Article 45 subparag. 2 of the Game Industry Promotion Act

[2] Supreme Court Decision 2006Do265 decided Jun. 2, 2006 (Gong2006Ha, 1300) Supreme Court Decision 2009Do4590 decided Aug. 20, 2009 (Gong2009Ha, 1591)

Defendant 1 and one other

Prosecutor and Defendant 1

Attorney Jeon-Gyeong et al.

Suwon District Court Decision 2009No3702 Decided October 22, 2009

The part of the judgment of the court below excluding the violation of the Act on the Promotion of Game Industry due to the business of general game providing business without permission is reversed, and that part of the case is remanded to the Suwon District Court Panel Division. The prosecutor's remaining appeal is dismissed

The grounds of appeal are examined.

1. Judgment on Defendant 1’s grounds of appeal

According to the provision of Article 383 subparagraph 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only for a case on which death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. Thus, in this case where the defendant has been sentenced to a minor imprisonment, the reason that the sentencing of the sentence is unfair cannot

2. Judgment on the grounds of appeal by the prosecutor

A. The judgment of the court below

The lower court determined that the Defendants’ act of altering the game industry’s respective game contents and the contents of the game industry’s 20 game products’ excluding the game products’ game products’ rating 5,00 won per 5,00 won or per 5,000 won with the maximum points of 80,000 won, and that the Defendants’ act of altering the game industry’s 20 game products’ excluding the game products’ rating 20,000 won and 5,00 won per 20,000 won was not deemed to fall under the category of the game products’ game products’ 5,00 won and 5,000 won, and thus, the Defendants’ act of altering the game industry’s 20,000 won and 5,000 won and 5,00 won per 5,00 won per 20,000 won and 5,000 won per 20,000 won per 20,000 won per 20.

B. The judgment of this Court

(1) Provision of speculative acts using game products and provision of free gifts

Unlike the former Game Industry Act (amended by Act No. 8247 of Jan. 19, 2007), the Game Industry Act (amended by Act No. 8247 of Jan. 19, 2007) provides that game products subject to it are game products which can be used as data processing techniques, such as computer programs, or game products made to increase leisure use, learning, and physical effects, or apparatus and devices produced for the main purpose of using such video products, or which are produced for the main purpose of using such video products. Unlike the former Game Industry Act (amended by Act No. 8247 of Jan. 19, 2007), “private game products” was excluded from game products (Article 2 subparag. 1 (a)), game products with contents of betting or distribution, horse racing regulated by the Korean Racing Association Act and those which can be regulated by the Bicycle and Motorboat Act, and those which can be regulated by the Act or those which will be regulated by the Act No. 2 as well as those which will be regulated by the Act or those which will be regulated by the Act.

Meanwhile, Article 28 of the Game Industry Act provides that "game products related business entities shall observe the following matters." Article 28 subparagraph 2 provides that "The game products shall not allow others to gamble or perform other speculative acts, or leave them to do so by using the game products." Article 44 (1) 1 of the Game Industry Act provides that "the game products shall not encourage speculation by providing congratulations, etc.," and Article 44 (1) 2 of the same Act provides that "the game products shall be punished against persons who violate Article 28 subparagraph 2 of the same Article, and Article 44 (1) 1-2 of the Game Industry Act provides that "the game products related business entities shall be punished pursuant to Article 44 (1) 1 or 1-2 of the same Act," and Article 2 subparagraph 9 of the Game Industry Act provides that "the game products related business entities shall be defined as "the game products related business entities" under Article 6 of the same Act shall be defined as "the game products related business entities".

In full view of the provisions of the Game Industry Act concerning the "game products related business entity" and the "game products industry" and the contents that the game products are excluded from the game products, the business that provides the game products for public use, which do not fall under the game products, does not fall under the "game providing business" under subparagraph 6 of Article 2 of the Game Industry Act, and thus a person who conducts such business does not fall under the "game products related business entity" under subparagraph 9 of Article 28 of the Game Industry Act. Furthermore, the "game products" under subparagraph 2 of Article 28 of the Game Industry Act refers to the "game products" under subparagraph 1 of Article 2 of the Game Industry Act.

Therefore, even if the game was used to allow customers to perform speculative acts, or given free gifts, etc. according to the result of the game, it cannot be punished pursuant to Article 44(1)1 and Article 28 subparag. 2 of the Game Industry Act, Article 44(1)1-2 and Article 28 subparag. 3 of the Game Industry Act, or Article 44(1)2 and Article 28 subparag. 3 of the Game Industry Act.

Examining the reasoning of the judgment below in light of the above legal principles, the court below acknowledged the facts as stated in its holding, and judged that the game machine of this case, which the defendants offered for public use, constitutes speculative game products not provided for in Article 2 subparagraph 1 of the Game Industry Act, and the defendants installed the game machine of this case and let customers perform speculative acts, and the defendants who provided the right to gift in accordance with the game result, cannot be punished on the basis of the rates under Articles 44 (1) 1, 28 (1) 2, and 44 (1) 1-2, and 28 (1) 3 of the Game Industry Act, and Article 28 (1) 3 of the same Act, and there is no violation of the legal principles as to the Game Industry Act, as argued in the Grounds for Appeal. This part of the grounds for appeal by the prosecutor is without merit.

(2) An unauthorized general game providing business

Article 2 Subparag. 6-2 (b) of the Game Industry Act defines a general game providing business as “business providing game products not permitted for use by juveniles and all game products for use by the public” among the game products rated pursuant to Article 21. Article 26(1) provides that a person who intends to conduct a general game providing business without permission is punished pursuant to Article 45 subparag. 2 of the Act. In addition to the language and structure of the above provision, the interpretation of penal provisions should be strict and penal provisions should not be broadly interpreted or analogically interpreted to the disadvantage of the defendant. In light of the fact that the provision of a non-classified game product for use by the public does not fall under a general game providing business provided for in Article 2 subparag. 6-2 (b) of the Game Industry Act, and thus, Article 26(1) provides game products for use by the public cannot be punished pursuant to Article 2 subparag. 2 (b) of the same Act even if it provides game products for use by the public without permission (see Supreme Court Decision 2009Do4590, Aug. 20, 209).

In the same purport, the court below is just in holding that the defendants cannot be punished on the grounds that the game machine of this case provided by the defendants for public use constitutes speculative game products pursuant to subparagraph 2 of Article 45 and Article 26 (1) of the Game Industry Act, and there is no violation of the legal principles as to the Game Industry Act, as alleged in the grounds of appeal. The prosecutor's ground of appeal on this part is without merit.

(3) Points of exchanging game products

The purpose of the Game Industry Act excluding speculative game products is to eradicate speculative game products by preventing the distribution of speculative game products in the market, and at the same time to create a healthy game culture for the people by promoting the game industry. In light of the provisions of the Game Industry Act and the legislative intent thereof, in principle, game products under the Game Industry Act do not include instruments and devices corresponding to speculative game products.

However, Article 32 of the Game Industry Act prohibits the act of distributing illegal game products. Considering that the purpose of this Article is to promote the normal development of the game industry, illegal game products referred to in this article include speculative game products. Therefore, acts prohibited by Article 32 (1) 7 of the Game Industry Act include acts of exchanging results obtained through the use of speculative game products, and with respect to acts in violation of the prohibition of exchange, they can be punished by Article 44 (1) 2 and Article 32 (1) 7 of the Game Industry Act.

Nevertheless, the court below held that since each game machine of this case constitutes "private game products" as stipulated in subparagraphs 1 and 1-2 of Article 2 of the Game Industry Act, it cannot be punished on the basis of the rate under Articles 44 (1) and 2, and 32 (1) 7 of the Game Industry Act. In light of the above legal principles, the court below erred in the misapprehension of legal principles as to Article 32 (1) 7 of the Game Industry Act, and the prosecutor's ground of appeal pointing this out has merit.

3. Scope of reversal

The part of the judgment of the court below on the violation of the Act on the Game Industry due to exchange of game results is reversed. The part on the violation of the Act on the Game Industry due to the provision of game products different from the rating contents and the violation of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts due to the provision of game products is a concurrent crime under the former part of Article 37 of the Criminal Act with the part on the violation of the Act on the Game Industry due to exchange of game products. The part on the violation of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts on the Game Industry due to the provision of speculative acts and the provision of free gifts, which the court below acquitted the Defendants of the violation of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts on the Game Industry due to

4. Conclusion

Therefore, the part of the judgment below excluding the violation of the Game Industry Act due to the business of general game providing business without permission is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Si-hwan (Presiding Justice)