Whether the act of re-purchasing free gifts offered constitutes “act of offering free gifts without using the method determined and publicly announced by the Minister of Culture and Tourism” prohibited by Article 32 subparag. 3 and Article 50 subparag. 3 of the former Sound Records, Video Products and Game Products Act (negative)

Article 32 (5) (a) of the former Sound Records, Video Products and Game Products Act (repealed by Article 3 of the Addenda to the Promotion of Motion Pictures and Video Products Act No. 7943 of Apr. 28, 2006) provides that "the standards for handling premiums at a game providing establishment (No. 2005-9)" publicly notified by the Minister of Culture and Tourism pursuant to Article 32 (3) of the same Act is prohibited from repurchasing premiums provided to a game providing business operator in light of the language and text of the provision, and it cannot be deemed that the provision of premiums provided by a game providing business operator in providing premiums is stipulated in Article 32 (3) of the same Act, and therefore, even if considering the need to prohibit repurchasing premiums provided by a game providing business operator in order to effectively regulate the act of offering free gifts which may have harmful effects on juveniles, it is not against the principle of no punishment without the law of the Ministry of Culture and Tourism for extending the provision of premiums by Article 50 (3) of the same Act or the principle of no punishment without the law.

Article 32 subparag. 3 and Article 50 subparag. 3 of the former Sound Records, Video Products and Game Products Act (repealed by Article 3 of the Addenda to the Promotion of Motion Pictures and Video Products Act (Act No. 7943 of Apr. 28, 2006)

[Plaintiff-Appellant] Plaintiff 2002Do4758 delivered on November 24, 2005 (Gong2006Sang, 65)

Defendant

Prosecutor

Ulsan District Court Decision 2006No750 decided January 5, 2007

The appeal is dismissed.

We examine the grounds of appeal.

1. The interpretation of penal provisions shall be strict, and the interpretation of penal provisions in the direction unfavorable to the defendant is not permitted because it is against the principle of no punishment without the law to excessively or analogically interpret the meaning of penal provisions in the direction unfavorable to the defendant (see Supreme Court Decision 2002Do4758, Nov. 24, 2005, etc.).

Article 32 of the former Sound Records, Video Products and Game Products Act (amended by Act No. 7943 of Apr. 28, 2006) provides that "any person engaged in a game providing business shall not engage in any act falling under any of the following items, which may encourage speculation or influence juveniles," (a) provide free gifts other than the types determined and publicly notified by the Minister of Culture and Tourism, and (b) provide free gifts without using the methods determined and publicly notified by the Minister of Culture and Tourism." Article 50 subparagraph 3 of the same Act provides that "any person who violates the provisions of subparagraph 3 of Article 32" shall be punished. Article 32 subparagraph 3 of the same Act provides that "the standard for handling free gifts in a game providing business establishment (Public notified by the Minister of Culture and Tourism No. 2005-9) notified by the Minister of Culture and Tourism pursuant to subparagraph 3 of Article 32 of the same Act shall not provide free gifts and methods of offering to a game providing business operator."

However, in light of the language and text of the above notice, the provision merely prohibits the repurchase of premiums offered to a game providing business operator, and it cannot be deemed that the provision of premiums to be observed by a game providing business operator in providing free gifts is stipulated in Article 32 subparagraph 3 of the same Act. Therefore, even if considering the legislative purport and purpose of Article 32 subparagraph 3 of the same Act and the fact that it is necessary to prohibit the repurchase of premiums offered by a game providing business operator in order to effectively regulate the act of promoting speculation or the act of providing free gifts harmful to juveniles, it is deemed that the act of repurchasing premiums offered by a game providing business operator constitutes a violation of Article 32 subparagraph 3 of the same Act as provided in Article 50 subparagraph 3 of the same Act by excessively analogy or expanded interpretation of the penal law, and thus, it is not permissible as it is against the principle of no punishment without law.

In the same purport, the court below's measure of maintaining the first instance court which acquitted the charged facts of this case as it is just, and there is no error of law as to the interpretation of Article 32 subparagraph 3 of the former Sound Records, Video Products and Game Products Act, as otherwise alleged in the ground of appeal.

2. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)