2006Guhap1458 Revocation of the disposition of business suspension

Plaintiff

Simsan City

August 13, 2008

September 10, 2008

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The defendant revoked 30 days of business suspension against the plaintiff on April 25, 2006 (from May 15, 2006 to June 13, 2006).

1. Details of the disposition;

A. On March 16, 2006, the Plaintiff acquired the general game room (hereinafter “instant game room”) in the name of “Seoul-si, Do-si, Do-si,” located in the Seo-si, Seo-si, Seo-si, Busan-si.

나 . 피고는 2006 . 4 . 25 . 원고에 대하여 , “ 이 사건 게임장에서 2005 . 11 . 24 . 문화관 광부장관이 2005 . 7 . 6 . 개정 · 고시한 문화관광부고시 제2005 - 9호 ‘ 게임제공업소의 경품 취급기준 ' ( 이하 이 사건 고시라 한다 ) 에 의하여 한국게임산업개발원장이 지정 공고한 상품권이 아닌 엔터프라이즈 주식회사 ( 이하 소라 한다 ) 가 발행한 XXXX 문화상품권을 경품으로 제공하였다 ” 는 이유로 , 음반 · 비디오물 및 게임물에 관한 법률 ( 이하 ' 음비게법 ' 이라고 한다 ) 제32조 제3호 , 제39조 제1항 제5호에 의하여 영업정지 30일 ( 2006 . 5 . 15 . 부터 2006 . 6 . 13 . 까지 ) 에 처하는 처분 ( 이하 이 사건 처분이라고 한다 ) 을 하였다 .

[Grounds for Recognition] Unsatisfy, Eul 1 to 22, evidence 27 to 50 (including each number), before oral argument

The purpose of body

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Illegality of the instant notice

Since the notice of this case is null and void for the following reasons, the disposition of this case based on the null and void notice is also unlawful.

(A) Despite the fact that the former Gift Certificates Act, which provided for the registration system and authorization system of gift certificates, was repealed on December 5, 199, allowing the free issuance and sale of gift certificates, it restricted the Plaintiff’s property rights and freedom of business guaranteed under the Constitution by limiting gift certificates, which account for at least 90% of each withdrawal, to be designated by the Korea Game Industry Development Institute. This goes against the principle of statutory reservation of restriction on fundamental rights as stipulated under Article 37 of the Constitution.

(B) According to Article 32 Subparag. 3 of the Music Act, matters that can be determined through a public announcement by the Minister of Culture and Tourism are limited to the types of free gifts and the methods of providing free gifts. However, the public announcement of this case, however, is remarkably deviating from the scope of delegation under Article 32 Subparag. 3 of the Food and Drug Promotion Act due to the fact that: (a) the public announcement of this case is to restore the former Gift Certificates Act that has already been abolished

(C) Even though there is no provision that the Minister of Culture and Tourism may delegate or entrust the certification examination or recommendation authority to the Korea Game Industry Development Institute (hereinafter referred to as the “Korea Game Industry Development Institute”) which is an incorporated foundation, to the Korea Game Industry Development Institute (hereinafter referred to as the “Korea Game Industry Development Institute”), the Minister of Culture and Tourism delegated or entrusted the certification examination or recommendation authority so that the Minister of Culture and Tourism may designate and publicly announce gift certificates that can be provided as gift certificates to the Director of the Korea Game Industry Development Institute

(2) The illegality of the instant disposition itself

설령 이 사건 고시가 적법하다고 하더라도 , 이 사건 고시와 관련한 각종 법률적 다툼이 진행 중이고 , 원고가 지정 받지 않은 XXXX 상품권을 경품으로 제공함으로써 취득한 이득이 많지 않으며 , 공익을 침해한 것도 별로 없고 , 지정 상품권의 발행량이 절대적으로 부족하여 어쩔 수 없이 비지정 상품권을 사용하게 되었으며 , 이 사건 게임 장 개업을 위한 투입비용이 2억 원에 달하고 , 원고 및 원고 직원들의 생계가 달려있는 점 등을 고려할 때 , 이 사건 처분은 지나치게 과중하여 재량권을 일탈 · 남용한 것으로서 위법하다 .

(b) Related statutes;

As shown in the attached Form.

(c) The process of amending standards for dealing with premiums.

The following facts may be established by taking account of the overall purport of the arguments as a whole:

(1) The current Food and Drug Promotion Act prohibits a game providing business entity from providing free gifts other than the kind of gift as determined and publicly notified by the Minister of Culture and Tourism (Article 32 subparag. 3 of the Food and Tourism), and the Ministry of Culture and Tourism’s officers, upon delegation of the Food and Tourism Promotion Act, provide two types of gift vouchers to be provided in the game providing business entity through the "standard for handling free gifts in a game providing business establishment" under Article 2004-14 of the Public Notice of the Ministry of Culture and Tourism (hereinafter referred to as the “existing public notice”) under the Ministry of Culture and Tourism’s announcement on December 31, 2004.

(2) However, as the exchange function of goods or services, which are the original function of a merchandise coupon, is lost, and the merchandise coupon mainly performs the exchange function, is crossed, and the speculative nature of the game providing business becomes an issue as a gift gift in the game providing industry, the Minister of Culture and Tourism cancelled the designation of the above 22 types of merchandise coupons selected as merchandise coupons to be offered as gift in a game providing establishment through the "Public Notice of Designation of merchandise coupons in a game providing establishment" (No. 2005 - 64 of the Ministry of Culture and Tourism Notice) on June 30, 2005, after having inspected the current status, etc. of merchandise coupons issued by a merchandise coupon issuer selected for the provision of gift certificates in a game providing establishment.

(3) After that, the Minister of Culture and Tourism revised and publicly announced the standards for handling gift certificates at a game providing establishment (the notice of this case) on July 6, 2005 to prevent the speculation by strengthening the original function of merchandise coupons provided as free gifts, thereby limiting the product rights that can be provided at a game providing establishment to be designated by the Korea Game Industry Development Institute, thereby making it impossible to provide other merchandise coupons as free gifts.

(4) On August 1, 2005, the Director General of the Korea Game Industry Development Institute designated and announced 7 kinds of merchandise coupons as merchandise coupons for gift purposes based on the instant notice, and thereafter, at the time of detection of the instant case, only 10 merchandise coupons could be provided as merchandise coupons at a game establishment.

D. Determination

(1) Whether the instant public notice is lawful

(A) Re-elections without entirely stipulating the matters generally delegated by law is contrary to the doctrine of prohibition of delegation, and it brings about changes in the contents of delegation law, and the Ordinance of the Ministry of Government Administration and Home Affairs

Considering the fact that the enactment and amendment procedures are more easy than the Presidential Decree, the restriction of the Constitution that is imposed on the Presidential Decree by delegation shall be applied as a matter of course to the case of Ordinances of Ministries. Thus, it is not allowed to re-election without prescribing any matters delegated by the Act, and it is allowed to re-endorse the delegated matters only where the matters are determined by the Presidential Decree and the specific matters among them are delegated to the subordinate statutes (see, e.g., Constitutional Court Order 94HunMa213, Feb. 29, 1996; Constitutional Court Order 2001HunMa605, Jul. 18, 2002).

Article 32 subparag. 3 (a) of the Food and Drug Promotion Act (hereinafter referred to as the "Food Promotion Institute") has been delegated by the Minister of Culture and Tourism with the category of premiums which may encourage speculation or influence harmful to juveniles, and the Minister of Culture and Tourism, upon delegation from the above provision of the above Act, delegated the type of premiums which may be provided as a result of games, and the Minister of Culture and Tourism entrusted with the authority to designate the scope of merchandise coupons that may be provided as free gifts by stipulating that the types of gifts that may be provided as a result of games are generally distributed in daily lives, such as toyss, phrases, character products, cultural products, tourism souvenirs, and liquid books, under Article 2(1) of the Notice of this case, paragraph (2) of the same Article and paragraph (3) of this Article, and the gift diskettes for exchange under paragraph (4) of this Article (limited to merchandise coupons that may be provided as free gifts, to the Korea Game Industry Development Institute.

Therefore, with respect to the matters delegated by Article 32 subparag. 3 (a) of the Music Act, Article 2(1), (2), and (3) of the Notice of this case specifically define the scope of the gift, and then re-endorses only the gift certificates to the Korea Game Industry Development Institute, and it does not re-endorse all the delegated matters without stipulating all the delegated matters under Article 32 subparag. 3 (a) of the Food and Drug Promotion Act. Thus, Article 2(4) of the Notice of this case cannot be deemed to have deviates from the scope of delegated legislation delegated by the Act. In addition, the designated donation certificate of this case, which is an act prohibited by the Act, is merely a specification of the contents of the act of providing gift, which is an act prohibited by the Act, within the scope of delegation by the Act. Thus, it cannot be said to be in violation of the principle of statutory reservation.

(B) Even if the instant notice deviates from the limit of delegation legislation and is null and void, and the subsequent designation of gift certificates by the Korea Game Industry Development Institute, a foundation, is null and void, Paragraph 2(4) of the instant notice provides an exception to gift certificates which cannot be used as free gifts in general.

Since it is a provision that grants partial permission, where Paragraph 2 (4) of the Notice of this case is null and void, it can only be a result that it can not be provided as a gift gift gift certificate, which can be used as a gift gift, and it cannot be said that it is included in non-designated gift certificates as a matter of course permitted gift. Thus, non-designated gift certificates

The Plaintiff’s act provided as gift premiums shall be limited to the case where premiums other than kinds publicly notified by the Minister of Culture and Tourism are provided, regardless of the validity of Article 2(4) of the Notice.

(C) The Plaintiff’s assertion on this part is without merit.

(2) Whether the instant disposition itself is legitimate

In light of the fact that the gift certificates of this case traded in the Plaintiff’s game providing business are destroyed by the loss of the function of exchanging water or service, which is the original function of the gift certificates, and mainly performs the exchange function, and thereby deepening the speculative nature of the game providing business as a whole society, the Plaintiff’s violation is serious and the amount of use of the gift certificates is high, and the disposition of this case meets the criteria for disposition prescribed in the Enforcement Rule of the Music Act [Attachment 3], even considering all the circumstances alleged by the Plaintiff, it does not seem that the private disadvantage the Plaintiff suffered from the disposition of this case is larger than the purpose of the public interest to achieve the disposition of this case. Thus, the Plaintiff’s assertion that the disposition of this case is a disposition that deviates from and abused by discretionary authority is without merit.

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.

Judges Hwang Sung-ju

Kim Gyeong-do

Freeboard

Related Acts and subordinate statutes

[The Sound Records, Video Products and Game Products Act]

A person (hereinafter referred to as the "person related to distribution") who runs the business referred to in subparagraphs 8 through 12 of Article 2 (limited to the business which includes the business falling under subparagraphs 8 through 11 in the middle of the combined distribution and provision business) of the same Article (hereinafter referred to as the "person related to distribution") shall observe the matters falling under each of the following subparagraphs:

3. No game providing business operator shall provide free gifts falling under any of the following items, which may encourage speculation or have a harmful effect on juveniles:

(a) Acts to offer free gifts other than those as determined and publicly announced by the Minister of Culture and Tourism;

(b) Providing premiums without using such a method as determined and publicly announced by the Minister of Culture and Tourism;

Article 39 (Revocation, etc. of Registration)

(1) Where a business operator falls under any of the following subparagraphs, the Mayor/Do Governor or the head of a Si/Gun/Gu may issue an order to close the relevant business or revoke the registration thereof, or order the suspension of the relevant business for a fixed period not exceeding six months: Provided, That where the business operator falls under subparagraph 1 or 7, he/she shall issue an order to close the business or revoke the registration thereof:

5. Where he violates the matters to be observed by the businessman under Article 32;

Article 50 (Penalty Provisions) Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than two years or by a fine not exceeding twenty million won:

3. A person who violates subparagraph 3 of Article 32;

[Enforcement Rule of the Sound Records, Video Products and Game Products Act]

Article 9 (Criteria, etc. for Administrative Dispositions)

(1) The criteria for administrative dispositions referred to in Article 39 of the Act shall be as shown in attached Table 3.

[Attachment 3] Criteria for administrative disposition (related to Article 9(1)) 2. Individual criteria

[Standards for dealing with free gifts at game software establishments (No. 2005 - No. 9)]

1. Objectives;

The purpose is to contribute to the sound operation of a game providing establishment by protecting juveniles and preventing speculative acts by prescribing standards for handling free gifts provided by a game providing establishment.

2. Types of premiums:

The types of premiums which may be provided as a result of the game shall be as follows:

(1) ① Toys, phrases, characters, kinds of goods, cultural goods, tourist souvenirss, liquid sheet articles, etc.;

1. Articles of general circulation, such as clothes, daily necessities, etc.: Provided, That cleaning-related media products and harmful drugs prescribed by the Juvenile Protection Act shall be excluded;

(3) Plots for free exchange (limited to all-used game products and game products)

(Re) Gift certificates designated by the Korea Game Industry Development Institute (limited to those for 18 years of age game products).

3. Standards for granting free gifts:

(a) The criteria for the maximum limits of game products and premiums which may be provided as follows:

(1) All game products permitted for use: Within ten thousand won (based on market price).

(2) Game products permitted for use by 18 years of age: Within 20,000 won (based on market price).

(3) No game product deemed a speculative game shall be provided with free gifts.

(b)The meaning of the terms of these criteria shall be as follows:

(1) The term "limit of free gifts" means the maximum amount of free gifts which can be acquired by accumulating points awarded in the course of running a game at least once.

(2) The term "market price" means a price recognized in comparison with the same or similar goods being sold at the general retail store.

(3) The term "one-time game" means the period from the commencement of a game to the commencement of the following game: Provided, That in cases of a game product using a medal, the term "one-time game" means a game product prior to the commencement of a game one month following a medal.

(4) The term "game products deemed speculation" means the following game products:

(A) A game for less than four seconds of time (other than time run by users, such as hosting failure, etc.)

Game products in excess of 90,00 won per hour of Q 1-hour

다 . 잭팟누적점수 · 최고당첨액 ( 주게임 , 부가게임 , 잭팟게임의 당첨액 등을 모두 포함 ) · 경품누적점 수 등이 경품한도액을 초과하는 게임물

4. Methods of offering free gifts:

(a) A premium shall be provided by a rating classification agency only through a premium payment scheme approved at the time of rating, and in particular, no person related to a place of business shall exchange and provide free gifts to a person with whom a 18-year-old game product is used without a premium payment scheme.

(b)at the same time as the grant is provided, all matters recorded in any originals except for the user fee created by the user must be numbered;

(c) No points that have been acquired as a result of a game shall be kept, and no person shall trade or have another person trade or trade such points;

5. Matters to be observed when giving free gifts.

(a) No person shall exchange or arrange for money exchange or re-purchase (re-purchase) premiums offered;

(b) not exhibit, keep, exchange or provide any goods other than the premiums provided;

(c)be kept for not less than one year from the date of purchase, type, unit price, quantity (including serial numbers in the case of merchandise coupons), and free gift purchase ledger (a separate sheet of confirmation of details of transactions) entered by the purchaser, etc.

(d)in the case of a game product which is unable to provide free gifts in accordance with the standards for granting free gifts, a sign "non-competitive Game Products Act" (not less than 10cmx 5cm) shall be posted and managed on the upper right top of the front side of the game product.

6. Time of enforcement; and

This Notice shall enter into force on the date of public notice.