Defendant

Prosecutor

Dom Kim Fence

Seoul Northern District Court Decision 2005Gohap1477 Decided September 6, 2005

The prosecutor's appeal is dismissed.

1. Facts charged and the summary of the judgment of the court below

A. Facts charged

From March 15, 2005 to May 17, 2005, the Defendant: (a) from around 15, 2005, up to 18 years old-old games using 18 years old-old games, the Defendant installed a total of 118 game machine, including 70 and 48, a total of 118, a “HHD” game machine; and (b) had been registered as a distributor at the competent district office; and (c) had been operating a business with a trade name called “(trade name omitted)”, the Defendant kept and managed a gift purchase ledger in which details of gift exchange are recorded in order to prevent gift exchange for more than one year. However, during the period from May 1, 2005 to May 11, 2005, the Defendant did not violate the standards for keeping gift purchase ledger, such as the date of purchase of gift certificates at the time of purchase, the unit price (name number) quantity, and the gift purchase ledger.

B. Summary of the reasoning of the judgment below

The court below found the Defendant not guilty on the ground that the Defendant’s act of not keeping the details of the gift purchase in the gift purchase ledger was merely a part of the “matters to be observed in the light of the provision of a gift offer business establishment” under Article 32 subparag. 3 (b) of the Sound Records, Video Products and Game Software Act, which is a legal provision applied by the prosecutor to the facts charged of this case, was “an act of providing free gifts without using a method determined and publicly announced by the Minister of Culture and Tourism,” and thus, the facts charged of this case is not a crime.

2. Summary of grounds for appeal;

The duty to keep a gift purchase ledger is prescribed to prevent the act of cash payment to game users or the act of exchanging free gifts. Although such duty is stated in the “matters to be observed in the public announcement of 5. free gifts” rather than the “standards for providing free gifts at a game providing establishment” announced by the Ministry of Culture and Tourism, this is directly related to the provision of free gifts, so it can be said that the failure to keep a gift purchase ledger in the course of providing free gifts violates the method of providing free gifts, the lower court erred by misapprehending the legal doctrine, thereby acquitted the Defendant.

3. Determination

A. Key issue

In light of the evidence of this case, the issue of this case is whether the defendant's act constitutes "the act of offering free gifts without using the method determined and publicly announced by the Minister of Culture and Tourism" as stipulated in Article 32 subparagraph 3 (b) of the Sound Records, Video Products and Game Software Act, since it is acknowledged that the defendant purchased 5,00 gift certificates of TSK 5,00 gift and did not keep the details of the free gift purchase in the free gift purchase ledger.

(b) the relevant regulations;

(1) Article 32 of the Sound Records, Video Products and Game Software Act provides that a person who violates the provisions of Article 32 subparagraph 3 of the aforesaid Article shall not be punished by imprisonment for not more than two years or by a fine not exceeding twenty million won. Article 32 of the same Act provides that a person who conducts a game providing business shall not be punished by imprisonment with prison labor for not more than two years, or by a fine not exceeding twenty million won.

(2) The Ministry of Culture and Tourism’s announcement on February 5, 2002 was made with No. 202-18 of the Ministry of Culture and Tourism’s announcement on the purpose of protecting juveniles and preventing speculative acts to provide free gifts at a game providing business establishment (this is referred to as “the standard for dealing with free gifts at a game providing business establishment”. The Ministry of Culture and Tourism’s announcement on December 30, 2002 was amended with No. 204-14 on December 31, 2004 to provide free gifts at the same time, and the provision of free gifts should not be made in the same manner as indicated in the facts charged of the instant case’s announcement on the purpose, type of free gifts, standards for providing free gifts, methods of offering free gifts, timing for offering free gifts, etc. (hereinafter “instant announcement”). The provision of free gifts should not be made in the same manner as the previous announcement on the provision of free gifts by the Ministry of Culture and Tourism, but shall not be made in the same way as the provision of free gifts.

C. Determination

First, with respect to the provision of the above Sound Records, Video Products and Game Software Act and the literal meaning of the notice of this case, or the form of the provision thereof, acts prohibited by Article 32 subparag. 3 of the above Act are acts of providing premiums other than the kind determined and publicly notified by the Minister of Culture and Tourism as "act of providing premiums" by a game providing business operator that may encourage speculation or influence juveniles, and acts of providing premiums without using the methods determined and publicly notified by the Minister of Culture and Tourism. It is so stated in the notice of this case that "at least one year from the date of purchasing premiums, types, unit prices, volume (including serial numbers), quantity (including serial numbers), etc., stated as one of the matters to be observed in the notice of this case, the phrase "kicking act" that requires the game providing business operator to enter the details of the gift purchase in the gift purchase ledger and keep them for more than one year, and the meaning and contents of the phrase "act of providing premiums" or "act of providing premiums" are not "act of providing premiums" in light of the meaning and contents of the notice of this case.

Next, the provisions of the above Act and the notice of this case aim at preventing the speculative nature of a game room and creating a healthy game room culture, and most adult game establishments provide a large quantity of merchandise coupons exceeding the limit of free gifts, and they require the duty to keep the gift ledger in order to effectively control the provision of free gifts in the reality where merchandise coupons provided as free gifts are exchanged and reusable, so the above provisions should be interpreted for a purpose. However, the above provisions of the Act provide that the act of providing free gifts is punished without using the types and methods of providing free gifts as prescribed and publicly notified by the Minister of Culture and Tourism, and the specific types and methods of providing free gifts are provided in the form of "public notice" rather than the notice of this case. Even if the above legislative form does not exceed the limit of delegated legislation because it falls under extenuating circumstances in which it is impossible to determine the types and methods of free gifts in advance, the provision of free gifts under the law must be specifically defined in the request of the principle of no punishment without law, and if the provision of free gifts constitutes a violation of the duty to provide free gifts in the form of this case.

Therefore, since the facts charged in this case do not constitute a crime, the prosecutor's above assertion is without merit.

4. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Yang Ho-ho (Presiding Judge)