(영문) 대법원 2010.1.28.선고 2009도10963 판결

The conviction part of the judgment of the court below against the defendant is reversed, and this part of the case is remanded to Suwon District Court Panel Division.

Reasons

ex officio deemed to have been filed.

Article 2 subparagraph 1 of the "Game Industry Promotion Act" (amended by Act No. 8247 of Jan. 19, 2007) of the "Game Industry Promotion Act" (hereinafter referred to as the "Game Industry Promotion Act") provides that "game products" is defined as game products with the main purpose of making it possible to play a game by using data processing technology, such as computer programs, or mechanical devices, or increasing leisure use, learning, and physical exercise effects, etc. incidental thereto, or apparatus and devices manufactured for the main purpose of using such video products and speculative game products, and excludes game products from the game products if they constitute speculative game products (proviso (a) of the same subparagraph). Meanwhile, "game products" means game products with the contents of betting or distribution, horse racing and motorboat regulated by the Korean Racing Association Act, game products with which the results are determined by incidental methods, bicycle and motorboat racing and motorboat racing products regulated by the Act, game products with which such results are gathered, game products regulated by the Tourism Promotion Act and those regulated by the Presidential Decree, and profits or losses in property as prescribed by Presidential Decree (proviso 2).

Therefore, the game products excluded from game products subject to the Game Industry Act are speculative game products.

In addition, the progress of a game must be limited by the contents or methods listed in Article 2 subparag. 1-2 of the Game Industry Act, and it means the game machine or device designed to provide a game user with property benefits, such as money or free gifts, or to cause losses to a game user directly through a game machine or a payment device installed in the game device according to the result of the game. In addition, where a game providing business operator causes property benefits or losses by an indirect method, such as awarding a prize to a game user or providing free gifts, even if the contents or method of the game are listed in Article 2 subparag. 1-2 of the Game Industry Act, it shall not be deemed as a "speculative game product" as mentioned above, apart from the fact that the game is listed in Article 2 subparag. 1-2 of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts.

Meanwhile, unlike the former Game Industry Act (amended by Act No. 8247 of Jan. 19, 2007), the purport of the current Game Industry Act excluding a speculative game product is to eradicate a speculative game product by preventing the distribution of a speculative game product in the market and to create a healthy game culture for citizens by promoting the game industry at the same time. In light of the provisions of the Game Industry Act and the legislative intent thereof, the game product under the Game Industry Act does not include a device or device corresponding to a speculative game product, and thus, it does not include a speculative game product.

However, considering that Article 32 of the Game Industry Act prohibits the distribution of illegal game products, etc. and the purport of this Article is to promote the normal development of the game industry, illegal game products stipulated in the relevant provisions include speculative game products, unless they are contrary to their nature. Therefore, "game products not rated" under Article 32 (1) 1 of the Game Industry Act includes speculative game products, and exchange activities prohibited under Article 32 (1) 7 of the same Act include exchange activities of results obtained through the use of speculative game products.

According to the records, the defendant stated that "Accusa" game product of this case was released as gift certificates as a result of the game (Evidence No. 102 pages), so the above "Accusa game product" is likely to constitute a speculative game product in accordance with the above legal principles.

Nevertheless, the lower court determined that the crime of violation of the Game Industry Act was established due to the speculative nature of providing free gifts of the said “Accusa” game products without verifying whether the said “Accusa’s game products was conducted by the contents or methods listed in Article 2 subparag. 1-2 of the Game Industry Act. Such determination by the lower court is erroneous in the misapprehension of the legal doctrine on the Game Industry Act or in failing to exhaust all necessary deliberations.

Therefore, the judgment of the court below should reverse the violation of the Game Industry Act due to the speculative nature of providing free gifts of "Accusa" game products, and the violation of each game industry law using the game products of "Accusa" under the former part of Article 37 of the Criminal Act, and the violation of each game industry law using the game products of "accusa" game products, and the violation of each game industry law using the game products of "sea-to-sea" is also reversed.

Therefore, without further proceeding to decide on the grounds of appeal, the guilty portion of the judgment below against the defendant is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.