(영문) 서울행정법원 2012.3.8.선고 2011구합10522 판결

A. On December 29, 2010, each of the plaintiffs used the name "teccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc

B. On January 14, 2011, the president of the Association returned to the Plaintiffs all their applications on the grounds that the instant organization is not a machine subject to safety inspection (hereinafter “instant disposition”). On January 28, 2011, the Defendant excluded the Plaintiff from the institution entrusted with safety inspection of amusement facilities and machines, and accordingly, the affairs related to the instant disposition was reverted to the Defendant. 【Grounds for Recognition” The Defendant did not dispute over the fact that there was no dispute, Party A’s 1 and 6 evidence (including each number; hereinafter the same shall apply), and the purport of the entire pleadings.

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) The instant apparatus is not a speculative game or speculative gaming machine, but a play-type machine subject to safety inspection under the Tourism Promotion Act. Therefore, upon the Plaintiffs’ request, A shall have the instant apparatus undergo the verification inspection, which is subject to safety inspection, but constitutes an illegal rejection disposition. (ii) The A Association has confirmed that the instant apparatus continued to be subject to safety inspection under the Tourism Promotion Act, prior to the instant disposition, it constitutes an illegal rejection disposition. Since the Plaintiffs violated the Plaintiffs’ legitimate trust in the instant disposition, the instant disposition was unlawful since it violated the principle of trust protection.

(b) Related statutes;

Attached Form 3 is the same as the entry of the relevant law.

C. Determination

1) As to whether the instant apparatus constitutes a machine subject to safety non-inspection

A) Article 40(1) [Attachment 11] 3(d) of the former Enforcement Rule of the Tourism Promotion Act (amended by Ordinance No. 79, Feb. 17, 2011) provides that, with respect to play-type amusement facilities and machines not subject to safety inspection, the conditions appearing on the screen due to programs, etc. including auxiliary equipment in a certain facility (such as machines, apparatus, space) or a printed circuit board (PCB) installed with CD memorys, etc. or computer Compact disks (ROM) can be used by any user as an amusement facility or machine that can be used by any user or experience, and provides that, notwithstanding Article 40(1) [Attachment 11] 3(d) of the Enforcement Rule of the Tourism Promotion Act (amended by Ordinance No. 11), Article 40(1) [Attachment 11] 3(d) of the Enforcement Rule of the same Act provides that, however, Article 20(1) [Attachment 2] and 17(3) of the Enforcement Rule of the same Act shall not be subject to safety inspection.

In addition, although the meaning of speculation is not separately prescribed by the laws such as the Tourism Promotion Act, Article 2 (1) 1 and 6 of the former Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc. (amended by Act No. 11034, Aug. 4, 2011; hereinafter referred to as the "Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc.") provides that the act of collecting property or property benefits from many people and determining gain or loss of property through a flexible method is a speculative act, and the act of giving property benefits or loss is defined as a speculative act, such as a mechanical slot machine in addition to the slot machine in subparagraph 5, and the act is defined as a speculative machine and defined as a speculative act, and Article 2 subparagraph 1-2 of the Act on Promotion of the Game Industry (hereinafter referred to as the "Game Industry Promotion Act") provides that the contents of betting or distribution, the result of which is determined by a flexible method, or which regulates the horse and the horse regulated by the Korean Racing Association Act.

B) Considering the following circumstances that are recognized by comprehensively considering the overall purport of pleadings in the descriptions or videos of Gap evidence 2 through 5, Eul evidence 1 through 9, the organization of this case is allowed to be used by anyone provided for in Article 40(1) [Attachment 11] 3(d) of the former Enforcement Rule of the Tourism Promotion Act, and it is difficult to view the organization of this case as an play-type recreation facility or machine without any speculation, and therefore, the plaintiffs' assertion that the organization of this case constitutes an machine subject to safety inspection is without merit.

(1) Since the inclusion of subparagraph 3 (d) of [Attachment 9] of the former Enforcement Rule of the Tourism Promotion Act (amended by Ordinance No. 136 of Apr. 14, 2006), the machine was one of the play types among the amusement facilities and machines not subject to safety inspection until it is excluded from subparagraph 3 (d) of [Attachment 11] of the former Enforcement Rule of the Tourism Promotion Act (amended by Ordinance No. 85 of Mar. 30, 201). Furthermore, even though there was no provision on the form and method of use of the “racing” as examples in the Enforcement Rule of the former Tourism Promotion Act, the machine widely known to the name of the “racing” was a simple method where the users of the machine were placed in the hole in the mouth, the machine was shown in the name of the “racing” and was in the form of the “racing machine at the time of its enforcement.” However, the machine of this case only shows the name of the user in the form of the “racing” and actually displayed.

(2) From among the instant organizations, “rashing” reports the virtual horse racing through a screen. It is similar to one of the speculative game products in the Game Industry Promotion Act. The same is similar to the game product that imitates the horse regulated by the Korean Racing Association Act. The user is not using body other than entering the horse and the board money selected by him/her, and it is different from other types of play-type machines. The user can exchange 10,000 won laps with a right to use, and the user can not use it with a right to use 10,000 won laps. It is difficult to view that there is a possibility that a user can easily use the game in the form of a game machine without any specific possibility of using it. In light of the fact that the result is not determined according to the user’s quantity of the game machine, it is difficult to view that there is a possibility that a user can use it by using the game machine in the form of an exchange-oriented machine without any possibility of using it.

(3) Of the instant body, “racing” in the instant body is a game in the form of fishing with water fishing by using Leber or fishing times. A total of 7 minutes or 20 percent game time is granted to a user who purchases a license of 10,000 won, and a total of 7 minutes or 20 percent game time increases as a result of the user’s fishing with water fishing by adding points to the type and number of water fishing by the user. The user may fish a water fishing by manipulating the Leber or fishing era. However, if the first day he can do so, without the user’s participation, the game can automatically progress and obtain points. In the electronic device inside the apparatus, the screen and winning points that will be transferred to and indicated in the dividend table are set in advance, the points obtained by the game can be easily exchanged with cash via a phone, and in light of the unit amount of usage rights, etc., it is difficult to view it as a “locing machine or machine” in light of the fact that children or juveniles can use it.

2) As to the violation of the principle of trust protection

A) In general in administrative legal relations, in order to apply the principle of the protection of trust to an act of an administrative agency, first, an administrative agency should name a public opinion that is the subject of trust to an individual, second, there is no reason attributable to the individual with respect to the trust of the individual, third, the individual should have trusted and trusted that the name of the opinion of the administrative agency, third, the administrative agency should have conducted any act corresponding thereto. Fourth, the administrative agency's disposition contrary to the above opinion's name should result in infringing on the individual's interest in trust, and last, when taking an administrative disposition in accordance with the above opinion's name, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decision 2004Du13592, Feb. 24, 2006).

B) In the instant case, there is no clear evidence to acknowledge that the Plaintiffs purchased the instant organization and invested funds in leased places of business, and even if they invested enormous funds by trust in the continued confirmation inspection of A Association as asserted by the Plaintiffs, considering the following factors: (a) the instant disposition may not be deemed to be in violation of the principle of trust protection, in view of the following: (b) if the Plaintiffs did not refuse the Plaintiffs’ request for confirmation inspection; (c) if they did not refuse it, there is a concern that the instant disposition may seriously undermine public interest by causing social confusion, such as the proliferation of speculative act; (d) in light of the following: (a) the instant organization’s gambling and real type of business; (b) the social strike

3. Conclusion

Therefore, the plaintiffs' claims are without merit, and all of them are dismissed, and the costs of lawsuit are assessed against the losing plaintiffs. It is so decided as per Disposition.