In a case where a fishing place operator issued gift certificates when a guest who has paid a certain fee and applied a number tag, etc. in advance without permission from the commissioner of a district police agency, the case affirming the establishment of a violation of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc.

In a case where a fishing place operator, without permission from the commissioner of a district police agency, provides gift certificates when customers who have admitted to a certain fee fish with a number tag, etc. in advance, the case holding that this constitutes a kind of gift business and constitutes a violation of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc.

Articles 4(1) and 30(2)1 of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc., Article 247 of the Criminal Act

Defendant

Prosecutor

Kim Jong-ok

Gwangju District Court Decision 2007Kadan4047 Decided March 4, 2008

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

The gist of the grounds for appeal by the prosecutor is that the defendant's act of operating the fishing place of this case constitutes a speculative act, and thus, the defendant was acquitted on the grounds that there is no evidence to prove that the defendant was engaging in the speculative act. Thus, the court below erred by misapprehending the legal principles as to the speculative act, thereby adversely affecting the conclusion of the judgment.

2. Determination:

A. Ex officio determination

Before determining on the grounds for appeal by the prosecutor, the prosecutor, ex officio, maintains the facts charged by the court below, and applied for changes in the indictment to add "Article 247 of the Criminal Act" as the conjunctive applicable provisions of the Criminal Act, and "Article 247 of the Criminal Act" as the conjunctive charged, and "Article 247 of the Criminal Act" as the ancillary charge. Since the scope of the trial against the defendant is expanded by a party member's permission, the judgment of the court below is no longer maintained.

However, the reason for appeal against the primary facts charged by the prosecutor is still subject to the judgment of this court.

B. Determination of the Prosecutor’s argument

(1) Summary of the main facts charged

The Defendant is a person operating a “(trade name omitted) fishing place” (number omitted) and without obtaining permission from the commissioner of a district police agency;

From April 207 to November 15, 207, the above "fishing place" contains approximately 600 square meters in total. The number tickets from 00 to 169 square meters in 70, the number tickets from 50 to 163 square meters in 40, the number tickets from 1,000 to 1,000 in 00, the number tickets from 1,000 to 1,000 in 20, the number tickets from 1,000 to 1,000 in 1,000 in 20, the number tickets from 0 to 2,000 in 3,00 in 1,00 in 2,00 in 1,00 in 2,00 in 3,00 in 1,00 in 1,00 in 2,00 won in 3,00 won in 2,00 won in 3,000 won in 3,000 won in 2,00

(2) The judgment of the court below

In regard to this, the lower court determined that the Defendant did not constitute a violation of the Act on Special Cases concerning Regulation and Punishment, such as Speculative Acts, on the ground that it is difficult to see that the above operating method of the fishing place was in property profit or loss by an incidental method, and that it was merely for promoting the re-employment of the fishing place, on the ground that the Defendant did not constitute a violation of the Act on Special Cases concerning Regulation and Punishment, such as Speculative Acts, on the grounds that the Defendant’s use of the fishing place was merely for promoting the re-employment of the fishing place, on the following grounds: (a) the Defendant received only the charge of KRW 15,00 for 5 hours, KRW 30,00 for 8 hours, KRW 45,00 for 45,00 for 8 hours; (b) the above merchandise was not used in other places; and (c)

(3) Judgment of the court below

The term "speculative act" means an act of collecting property or property benefits from a large number of people and making them gain or loss property benefits or losses by making them gain by an incidental method. The defendant, after having customers fish with a number tag or letter tag attached, paid merchandise coupons in accordance with the number tag or letter tag attached to the water altitude, and the main source of merchandise coupons to be paid by the above fishing place customers are the fee per hour paid by customers, and the acquisition and loss of such merchandise coupons are determined by the "whether a fishing machine is attached with a number tag or letter tag in the water altitude" that can be considered as a "fishing machine or letter tag" that can be considered as a "the fishing machine or letter tag has been attached to a fishing machine". Thus, the court below erred in the misapprehension of legal principles as to the "speculative business" among the fishing places, which constitutes a speculative business, and thus, it constitutes a violation of the Act on the Punishment of Speculative Acts and subordinate statutes against the defendant, without having any influence on the judgment of the court below.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act on the ground that the above grounds for reversal exist, and it is again decided as follows.

(b) Paragraph (1) of the above 2-b above.

1. Partial statement of the defendant;

1. Each statement (Non-Indicted 1 and 2)

1. A photographic register of relevant data, such as control sites and merchandise coupons;

1. Copy of business registration certificate;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 30(2)1 and 4(1) of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc.

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges Lee Jae-han (Presiding Judge)