2015Do13444 Violation of the Game Industry Promotion Act, Regulation and Measures of Speculative Acts, etc.

Violation of the Act on Special Cases concerning Punishment, violation of the Resident Registration Act, escape, and gambling;

A

Defendant

Attorney CB (State Ship)

Ulsan District Court Decision 2015No244, 2015Do763 (Consolidated) Decided August 12, 2015

October 29, 2015

The part of the judgment of the court below regarding gambling aid is reversed, and that part of the case is remanded to the Ulsan District Court Panel Division. The remaining appeals are dismissed.

1. As to the ground of appeal

According to the records, the defendant appealed against the judgment of the court of first instance, and asserted mistake of facts and misapprehension of legal principles as well as unfair sentencing as the grounds for appeal, but withdrawn the grounds for appeal concerning mistake of facts and misapprehension of legal principles on the second trial of the court below. In such a case, the argument that the court below erred by mistake of facts or misapprehension of legal principles is not legitimate grounds for

In addition, pursuant to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where a more minor sentence has been imposed on the defendant, the argument that the sentencing of the

2. Ex officio determination as to gambling and gambling

According to the reasoning of the lower judgment, the lower court found the Defendant guilty of applying Article 246(1) of the current Criminal Act and Article 32 of the Criminal Act, among the facts charged in the instant case, that the Defendant lent KRW 500,000 to BZ as gambling money when he/she did so on October 29, 201, and aiding and abetting BZ by facilitating gambling. Even if there is a change in the law after the crime, if the punishment is severe but changes occur, the law at the time of the act should be applied in accordance with Article 1(1) of the Criminal Act, and the above crime constitutes a case where Article 246(1) of the former Criminal Act (amended by Act No. 11731, Apr. 5, 2013; hereinafter referred to as the “former Criminal Act”) which was enforced at the time of the crime of gambling, and thus, Article 246(1) of the former Criminal Act should be applied to a case where the punishment is changed to a fine not exceeding KRW 1 million.

Therefore, the court below erred in the application of Article 246 (1) of the current Criminal Code, not Article 246 (1) of the former Criminal Code, to the above crime of aiding and abetting gambling, and it is obvious that the court below affected the judgment.

3. Conclusion

Among the facts of each of the instant crimes, each of the crimes except the crime of gambling aiding and abetting and the crime of gambling aiding and abetting are concurrent crimes under the former part of Article 37 of the Criminal Act. However, the lower court rendered a fine for the crime of gambling and the punishment of imprisonment for the remaining crimes except the crime of gambling and aiding and abetting is concurrently imposed. Therefore, the part of the lower judgment on the crime of gambling and aiding and abetting is reversed and remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik et al.

Justices Lee Sang-hoon

Justices Cho Jong-hee

Chief Justice Park Sang-ok