[1] In applying Article 30(1)4 of the former Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc., whether the speculative nature of operating methods should also be considered in addition to the speculative nature of the machinery and apparatus itself (affirmative)

[2] Where it is deemed that a speculative spirit is likely to be induced by providing or exchanging premiums in violation of the "Standards for Handling Gift of Game Establishments" even in a game room operated with game products classified under Article 20 (2) 2 of the former Sound Records, Video Products and Game Products Act, it constitutes a violation of Article 30 (1) 4 of the former Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc. (affirmative)

[1] Article 2 (1) 1 (d) of the former Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc. (amended by Act No. 7901 of March 24, 2006) [see current Article 2 (1) 2 (c)] and Article 30 (1) 4 (see current Article 30 (1) 1) of the former Act / [2] Article 30 (1) 4 of the former Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc. (amended by Act No. 7901 of March 24, 2006) (see current Article 30 (1) 1 of the former Act), Article 20 (2) 2 of the former Sound Records, Video Products and Game Products Act ( repealed by Act No. 7943 of April 28, 2006)

Defendant 1 and one other

Defendants

Changwon District Court Decision 2006No753 decided August 17, 2006

All appeals are dismissed.

The grounds of appeal are examined.

1. According to the former Regulation and Punishment of Speculative Acts, etc. (amended by Act No. 7901, Mar. 24, 2006; hereinafter the same shall apply), business prescribed by the Presidential Decree, which is a business by apparatus or method, etc. likely to attract speculative spirit, shall be permitted as legitimate speculative acts (Article 2(1)1 Item (d)), but in cases where the business of inducing speculative spirit such as slot machines, mechanical slot machines, or speculative electronic amusement machines, etc. using machines and apparatus, etc. which are likely to attract speculative spirit to users as a result of friendship, it constitutes a violation of Article 30(1)4 of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc. (amended by Act No. 7901, Mar. 24, 2006; hereinafter the same shall apply). Therefore, the determination of whether there is concern to attract speculative spirit should be made by considering not only the speculative spirit of the machinery and apparatus itself, but also the speculative nature in operating methods such as illegal offering of premiums or money exchangeing.

In the same purport, the court below is just to find that the defendants' act of exchanging premiums to customers in violation of the standards for dealing with free gifts at a game providing establishment constitutes Article 30 (1) 4 of the Speculative Act, and that the defendants' act constitutes a violation of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, etc. in its holding, and the argument in the grounds of appeal pointing this out is not acceptable.

2. According to Article 8(1)1 and 2 of the Act on the Regulation and Punishment of Criminal Proceeds Concealment, any property derived from criminal proceeds or criminal proceeds may be confiscated. According to Article 10(1) of the same Act, if it is not possible to confiscate the property to be confiscated under the provisions of Article 8(1) of the same Act, or if it is deemed that there is a right of a person other than the criminal with respect to the property, or it is not reasonable to confiscate the property due to the nature of the property, the situation of its use, and other circumstances, the equivalent value thereof may be collected from the criminal.

The court below acknowledged that cash and gift certificates equivalent to KRW 121,435,00,00, which were seized by the defendants in the company of the game room operated by the defendants and the game products, are criminal proceeds or property derived from criminal proceeds as stated in Article 30 (1) 4 of the Speculative Act. The court below collected the amount equivalent to the above amount from the defendants on the ground that the above cash and gift certificates are returned to the defendants after the judgment of the court of first instance, and it is not reasonable to confiscate them. In light of the records, the court below's measures are just and acceptable, and there are no errors in the misapprehension of legal principles as to confiscation or collection as alleged in the grounds for appeal.

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)