[1] Whether a person operating an amusement business affecting the public morals may be punished for a violation of Article 3 subparag. 3 of the Act on the Regulation of Amusement Businesses Affecting the Public Morals, in cases where he/she makes a gambling which is merely a temporary entertainment at a public morals business place

[2] Grounds for not punishing gambling acts which are merely a temporary entertainment

[3] The case holding that in case where a person operating an amusement business affecting the public morals conducts gambling which is merely a kind of friendship and temporary entertainment in his/her entrance, the crime of gambling under the Criminal Code is not established, and it constitutes a violation of the Act on the Regulation of Amusement Businesses Affecting the Public Morals, but is not contrary to the social rules, and the illegality is excluded

[1] Where a person operating an amusement business affecting the public morals conducts gambling at the place of business, even if it is merely a temporary entertainment, and thus cannot be punished as a crime of gambling under the Criminal Act, it constitutes the elements of a crime under Articles 10(1) and 3 subparag. 3 of the Act on the Regulation of Amusement Businesses Affecting the Public Morals Act, and even in cases where a certain act appears to fall under the elements of a crime under the language and text of the law, if it is considered to fall under the elements of a crime under the scope of the order of the socially created social life as a normal form of living, it shall not be punished as a violation of the ordinary social rules.

[2] Gambling which is merely a temporary entertainment, to the extent that the motive or purpose of the gambling act, its means or method, the benefit and protection of the law, the formation of the right to legal interest and the infringement legal interest, and the temporary entertainment are to the extent that the economic value of the property is so severe that it does not infringe on the sound work consciousness, so it is merely a minor entertainment that is limited to a simple entertainment that is to the extent that there is no possibility of undermining the sound public morals, and the entertainment that solves the mental and physical tension of ordinary people by making use of their leisure is permitted even from a national policy standpoint.

[3] The case holding that in case where a person operating an amusement business affecting the public morals conducts gambling which is merely a kind of friendship and temporary entertainment in his/her entrance, the crime of gambling under the Criminal Act is not established, and it constitutes an element of violation of the Act on the Regulation of Amusement Businesses Affecting the Public Morals, but it is not contrary to the social rules, and thus

[1] Articles 3 subparag. 3 and 10(1) of the Act on the Regulation of Amusement Businesses Affecting Public Morals / [2] Article 246(1) of the Criminal Act / [3] Article 246(1) of the Criminal Act, Article 3 subparag. 3 and Article 10(1) of the Act on the Regulation of Amusement Businesses Affecting Public Morals

[2] Supreme Court Decision 82Do2151 decided Mar. 22, 1983 (Gong1983, 771)

Defendant

Defendant

Daejeon District Court Decision 2003No1540 Delivered on September 26, 2003

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court.

We examine the grounds of appeal.

The purpose of the Act on the Regulation of Amusement Businesses Affecting Public Morals (hereinafter referred to as the "Act on the Regulation of Amusement Businesses Affecting Public Morals") is to contribute to the preservation of good customs and the protection of juveniles by regulating acts, etc. which undermine the sound cultivation of juveniles at places where they operate the amusement business affecting public morals, or undermine the sound fosterage of juveniles, and to this end, Article 3 Item 3 of the Customs Act provides that "no person shall allow any person to do gambling or other speculative acts at the amusement business place affecting public morals, as the matters to be observed by the operator of the amusement business place affecting public morals," and in light of the above legislative purpose of the Customs Act, in a case where a person operating the amusement business affecting public morals makes him gamble at the amusement business place, it is merely a temporary entertainment, and thus, it constitutes the element of the crime of Article 10 (1) and Article 3 Item 3 of the Customs Act

However, even if it appears that a certain act constitutes an element of crime under the language and text of the legal provision, if it is considered that it is within the scope of the order of social life which has been naturally created as a normal form of life, the illegality of the act that does not violate the social rules and that it cannot be punished accordingly.

According to the records, the defendant was found not guilty on the ground that the crime of gambling was committed in the first instance court and the lower court, on the ground that the crime of gambling is merely a temporary entertainment and does not constitute a crime, and the crime of gambling is not committed. The defendant was found not guilty on the ground that he was found guilty on the ground that he was found not guilty on the ground that he was able to drink with the relatives who reside in the same kind of club and drink, and she was drinking, and that he was found not guilty.

In addition, considering that gambling, which is merely the motive or purpose, means or method of the defendant's act, the formation of the right to benefit and protection of the law, and the degree of temporary entertainment, is to the extent that the economic value of the property is so small that it does not infringe on the sound work consciousness, it is merely a simple entertainment that is not likely to undermine the sound public morals, and that the entertainment that the ordinary people have made use of leisure to solve the physical and mental tension of ordinary people is allowed from the national policy perspective (see Supreme Court Decision 82Do2151, Mar. 22, 1983). In addition, it is reasonable to deem that the defendant's act in violation of the Customs Law of this case constitutes an act acceptable in light of ordinary social norms, and thus, it does not violate the social rules, and thus, it is reasonable to deem the illegality to be dismissed.

Nevertheless, the court below reversed the judgment of the court of first instance and convicted the facts charged of this case on the ground that the gambling which the amusement businessman is prohibited from allowing him to run in the public morals business under Article 3 subparag. 3 of the Customs Act is merely a temporary entertainment, and it includes gambling which cannot be punished as a crime of gambling under the Criminal Act. Thus, the court below erred by misapprehending the legal principles on the grounds for the exclusion of legitimate acts and illegality, thereby affecting the conclusion of the judgment.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)