[1] Whether Article 32 (1) 7 and Article 44 (1) 2 of the Game Industry Promotion Act and Article 18-3 of the Enforcement Decree of the same Act violate the principle of clarity that requires the principle of no punishment without law (negative)

[2] Whether Article 32 (1) 7 of the Game Industry Promotion Act and Article 18-3 of the Enforcement Decree of the same Act are contrary to the principle of prohibition of comprehensive delegation of penal provisions or the principle of no punishment without law (negative)

[3] Whether punishment of an act such as exchange of game money conducted before the enforcement date of Article 18-3 of the Enforcement Decree of the Game Industry Promotion Act is against the principle of prohibition of retroactive effect of penal law (affirmative)

[1] Examining the legislative purpose, the entire contents, structure, etc. of the game industry promotion-related laws and regulations, it appears that there can be a reasonable interpretation criteria for the standardized or limited types of acts that meet the elements of the elements of Article 44(1)2, Article 32(1)7, and Article 18-3 of the Enforcement Decree of the Game Industry Promotion Act by understanding and judgment of the general public with the capacity to distinguish things. Thus, Articles 44(1)2 and 32(1)7 of the Game Industry Promotion Act and Article 18-3 of the Enforcement Decree of the same Act have clarity as a penal provision, and thus do not violate the principle of clarity of the principle of no punishment without law required under Article 12(1)2 and the former part of Article 13(1) of the Constitution.

[2] Article 32 (1) 7 of the Game Industry Promotion Act delegates "game money and things similar thereto, which are prohibited from exchange, exchange brokerage, and repurchase business," to the Presidential Decree. It is not practically impossible to stipulate all laws and regulations related to criminal punishment without exception due to complex and diversification of social phenomenon, the limit of professional and technical capabilities of the National Assembly, and the limit of time adaptation ability, and it is due to considering that there are inevitable circumstances, especially urgent need or in advance, which cannot be determined in detail by law. The above provision provides that "the tangible and intangible result acquired through the use of game products", which is the object of punishment, is "game money used in the game and things similar thereto, as prescribed by the Presidential Decree," and its language itself can understand what is tangible and intangible results obtained through the use of game products, and what can be delegated to the Presidential Decree, and therefore, it does not seem that Article 18 (1) 3 of the Enforcement Decree of the Game Industry Promotion Act and Article 8 (2) 3 of the same Act does not violate the principle of no punishment without law.

[3] The former part of Article 13(1) of the Constitution and Article 1(1) of the Criminal Act state the principle of prohibition of retroactive effect of penal laws. According to Articles 4(1)2 and 32(1)7 of the Act on the Promotion of Game Industry, which was amended by Act No. 8247 of Jan. 19, 207, and Article 18-3 of the Enforcement Decree of the Act newly enacted by the Presidential Decree No. 20058 of May 16, 2007, and Article 18-3 of the Addenda thereto, and Article 18-3 of the Enforcement Decree of the Act are punished since the enforcement date of Article 18-3 of the Enforcement Decree of the Act, it violates the principle of prohibition of retroactive effect of penal laws to punish the act of exchanging, arranging for exchange and repurchase of game money.

[1] Articles 32(1)7 and 44(1)2 of the Game Industry Promotion Act, Article 18-3 of the Enforcement Decree of the Game Industry Promotion Act, Articles 12(1) and 13(1) of the Constitution / [2] Articles 12 and 75 of the Constitution, Article 32(1)7 of the Game Industry Promotion Act, Article 18-3 of the Enforcement Decree of the Game Industry Promotion Act / [3] Articles 32(1)7 and 44(1)2 of the Game Industry Promotion Act, Article 18-3 of the Enforcement Decree of the Game Industry Promotion Act, Article 1 of the Addenda ( May 16, 2007), Article 1(1) of the Criminal Act, Articles 12 and 13(1) of the Constitution

[1] [2] Supreme Court en banc Decision 98Do3665 delivered on November 16, 2000 (Gong2001Sang, 100) / [1] Supreme Court Decision 2001Do3531 Delivered on November 13, 2001 (Gong2002Sang, 122) Supreme Court Decision 2003Do451 Delivered on April 11, 2003 (Gong203Sang, 1224) / [2] Supreme Court en banc Decision 98Do3665 Delivered on November 16, 200 (Gong201Sang, 100), Supreme Court Decision 2006Do8419 Delivered on January 26, 2007

Defendant

Defendant

Attorney Jeong-mo

Incheon District Court Decision 2008No1818 Decided November 14, 2008

The part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. As to the violation of the Game Industry Promotion Act

From January 19, 2007 to April 6, 2007, the summary of the violation of the Game Industry Promotion Act among the facts charged against the Defendant is that the Defendant had a computer connected to the Internet game site (name 1 omitted) and the game money used on the above site at the office of Co-Defendant 2 Co-Defendant 2 Co-Defendant 2 Co-Defendant 2 Co-Defendant 2 Co-Defendant 2 Co-Defendant 2 Co-Defendant 3 of the judgment below convicts the Defendant of the charges of selling game money with approximately KRW 300,000 per 30,000 per 18,000 won by purchasing game money in approximately KRW 1,314,285,543 won, and it does not violate the principle of prohibition of exchange of game money for business purposes (hereinafter referred to as "the above provision of prohibition of exchange of money for business purposes") on the ground that it does not violate the principle of prohibition of use of game money for profit-making of approximately 50,000,00 won.

In light of the general public’s understanding and judgment with the ability to distinguish things, if it is possible to find a reasonable interpretation standard to standardized or limit the types of acts constituting the elements of punishment by examining the legislative purpose, overall contents, structure, etc. of the punishment law, it does not go against the principle of clarity in the penal law as required by the principle of no punishment without the law (see, e.g., Supreme Court en banc Decision 98Do3665, Nov. 16, 200; Supreme Court Decision 2006Do920, May 11, 2006). Furthermore, it is practically impossible to define all laws and regulations within the formal meaning without exception due to the complexity of social phenomenon, the limitation of professional and technical ability of the National Assembly, and the limitation of time adaptation ability, and therefore it is not in fact impossible to define them by the law within the practical meaning, and therefore, it is not in violation of the principle of no punishment without the law. In addition, the delegation of the law can be clearly determined to the extent that the act subject to punishment can be predicted in the aspect of the elements of punishment in advance.

Article 32(1)7 of the Act (amended on January 19, 2007 and enforced on the same day) provides that "any person shall not engage in conversion, exchange, or repurchase of tangible or intangible results (referring to points, premiums, virtual currency prescribed by Presidential Decree and things similar thereto prescribed by Presidential Decree) acquired through the use of game products for business purposes", and Article 44(1)2 of the Act (amended on January 19, 2007 and enforced on the same day) provides that "any person who commits an act falling under Article 32(1)7 shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 50,000 won, and Article 18-3 of the Enforcement Decree of the Act (amended on May 16, 2007) provides that "any person shall not engage in such act as a business of producing or exchanging game products or using data for the purpose of using them in a way prescribed by Presidential Decree or using them in a way prescribed by Presidential Decree", Article 32(1)7) of the Act.

In addition, Article 32 (1) 7 of the Act delegates to the Presidential Decree the prohibition of exchange, exchange brokerage, repurchase and repurchase of game money and others similar thereto which are prohibited to be prescribed by the Presidential Decree. It is virtually impossible to provide for all laws and regulations related to criminal punishment without exception due to the complex and diversification of social phenomenon, the limit of professional and technical capabilities of the National Assembly and the limit of time adaptation ability. Since it is not appropriate to do so, in particular, it is particularly necessary or it is not possible to provide for it in advance by law in advance. Article 32 (1) 7 of the Act provides that "It means game money prescribed by the Presidential Decree as virtual currency used in game and others similar thereto as prescribed by the Presidential Decree" with regard to the tangible and intangible result acquired through the use of game products which are the objects of punishment, it is difficult to understand what is tangible and intangible result obtained through the use of game products, and it is possible to expect any matters to be delegated to Presidential Decree, and therefore, it does not constitute a comprehensive delegation of Article 18 (1) 3 of the Enforcement Decree and Article 7 of the Act.

However, under the former part of Article 13(1) of the Constitution and Article 1(1) of the Criminal Act, the principle of prohibition of retroactive effect of penal laws is clarified, and Articles 4(1)2, 32(1)7, and Article 18-3 of the Enforcement Decree of the Act newly enacted by the Presidential Decree No. 2058 of May 16, 2007 and Article 1 of the Addenda of the Enforcement Decree of the Act are punished for the exchange, exchange, intermediation, and repurchase of game money under each subparagraph of Article 18-3 of the Enforcement Decree of the Act after the enforcement date of Article 18-3 of the Enforcement Decree of the Act. Thus, punishment of money exchange, intermediation, and repurchase of the game money under each subparagraph of the above Article of the Enforcement Decree prior to the enforcement date of the Act is against the principle of prohibition of retroactive effect of penal laws.

Therefore, the judgment of the court below which found the defendant guilty of the act of exchanging game money as provided in the subparagraphs of Article 18-3 of the Enforcement Decree of the Act prior to the enforcement date of Article 18-3 of the Enforcement Decree of the Act, is erroneous in the misapprehension of legal principles

2. Regarding habitual aiding and abetting gambling and violation of the Telecommunications Business Act

The allegation in the grounds of appeal in this part is erroneous for the selection of evidence or fact-finding which belongs to the exclusive jurisdiction of the court below, which is a fact-finding court. The court below's decision in this part is not erroneous in the rules of evidence as otherwise alleged in the grounds of appeal. Thus, the above ground of appeal

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant in violation of the Act on Promotion of the Game Industry as above is reversed, and the court below rendered a single sentence on the remaining criminal facts against the defendant, which are concurrent crimes with this part of Article 37 of the Criminal Act, and without examining the remaining grounds of appeal, reversed the part of the judgment below as to the defendant and remanded this part to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating

Justices Kim Nung-hwan (Presiding Justice)