[1] The principle of interpreting a penal provision

[2] Whether a game providing business operator's act of failing to keep a gift purchase ledger constitutes a violation of Article 32 subparagraph 3 of the Sound Records, Video Products and Game Products Act (negative)

[1] The interpretation of a penal provision shall be strict, and the interpretation of a penal provision shall not be permitted because it is against the principle of no punishment without the law to excessively expand or analogically interpret the meaning of a penal provision against the defendant.

[2] In light of the language and text of Article 32 subparagraph 3 of the Sound Records, Video Products and Game Software Act, the provisions of Article 32 subparagraph 5 (c) of the "Standards for Handling Premiums in Game Providing Establishments" publicly notified by the Minister of Culture and Tourism (No. 2004-14 of the Ministry of Culture and Tourism) are merely demanding a game providing business operator to keep a gift purchase ledger for not less than one year, and it does not constitute a provision on the type or method of providing premiums to be observed by a game providing business operator in providing free gifts. Therefore, even when considering the need to promote the legislative intent and purpose of Article 32 subparagraph 3 of the Sound Records, Video Products and Game Software Act and to have the duty to keep a gift purchase ledger in order to effectively regulate the act of offering free gifts which may affect juveniles, deeming the act of not keeping the gift purchase ledger to constitute a violation of Article 32 subparagraph 3 of the "Article 50 of the same Act" to constitute a violation of the principle of no punishment without a law by excessively analogy or expansion of penal laws and thus allowing it.

[1] Article 12(1) of the Constitution of the Republic of Korea / [2] Article 32 subparag. 3 and Article 50 subparag. 3 of the Promotion of the Motion Pictures and Video Products Act (repealed by Article 3 of the Addenda to the Promotion of the Motion Pictures and Video Products Act (Act No. 7943 of Apr. 28, 2006), Article 12(1) of the Constitution of the Republic of Korea

[1] Supreme Court en banc Decision 92Do1428 delivered on October 13, 1992 (Gong1992, 3190) Supreme Court Decision 2001Do5410 Delivered on February 8, 2002 (Gong2002Sang, 724) Supreme Court Decision 2003Do6535 Delivered on February 27, 2004 (Gong2004Sang, 578 Delivered on November 24, 2005)

Defendant

Prosecutor

Seoul Northern District Court Decision 2005No1247 Decided December 16, 2005

The appeal is dismissed.

The interpretation of penal provisions must be strict, and the interpretation of the meaning of the express provision to the disadvantage of the defendant is not permitted because it is against the principle of no punishment without the law (see, e.g., Supreme Court Decision 2002Do4758, Nov. 24, 2005).

Article 32 of the Sound Records, Video Products and Game Products Act provides that one of the matters to be observed by a proprietor of a game providing business shall not conduct 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, (b) provide free gifts without using the methods determined and publicly notified by the Minister of Culture and Tourism, and 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 at a game providing business establishment (Article 204-14 of the Ministry of Culture and Tourism notification)" publicly notified by the Minister of Culture and Tourism pursuant to subparagraph 3 of Article 32 of the same Act provides that "the date, type, unit price (including serial numbers), quantity, and method of providing free gifts to be provided by a proprietor of a game providing business shall be kept as one of the "matters to be observed" under paragraph (5) (c).

However, in light of the language and text of the above notice provision, the Minister of Culture and Tourism only requests a game providing business operator to keep a gift purchase ledger for at least one year, and cannot be deemed as a provision on the type or method of providing premiums to be observed by a game providing business operator in providing premiums. Therefore, considering the legislative purport and purpose of Article 32 subparag. 3 of the Sound Records, Video Products and Game Products Act and the need to have the business operator keep a gift purchase ledger in order to effectively regulate the act of promoting speculation or providing premiums harmful to juveniles, deeming that the act of not keeping a gift purchase ledger constitutes a violation of Article 32 subparag. 3 of the Act under Article 50 subparag. 3 of the same Act by excessively analogy or expanded interpretation of penal provisions to constitute a violation of the principle of no punishment without law, and thus, it is not permissible.

In the above 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 in the misapprehension of legal principles as to the interpretation of Article 32 subparagraph 3 of the Sound Records, Video Products and Game Products Act, as otherwise alleged in the ground of appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition.

Justices Kim Hwang-sik (Presiding Justice)