The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. Article 2 Subparag. 1 of the Game Industry Promotion Act (hereinafter “Game Industry Promotion Act”) defines a game product as a video product produced to enable a game to play a game using data processing technology, such as a computer program, or a mechanical device, or to enhance the use of leisure time, learning, and physical effects, etc. incidental thereto, or an apparatus and device produced for the main purpose of using such video product, and excluded it from a game product in cases of speculative game products.

Therefore, even if a person caused customers to perform speculative acts using a speculative game product, it cannot be punished pursuant to Article 44 (1) 1 and Article 28 (2) of the Game Industry Act.

According to the reasoning of the lower judgment and the evidence duly admitted by the first instance court, which maintained the reasoning of the lower judgment and the lower court, on January 28, 2010 (see, e.g., Supreme Court Decision 2009Do12650, Jan. 28, 2010). In so doing, it is sufficient to deem that the instant “FR 3” game is a speculative game since the outcome was determined by an incidental method, and accordingly,

Nevertheless, the lower court did not clarify the fact that the instant “Sastro Daejeon 3” game product is a game product not a speculative game product, and concluded that the Defendant committed a violation of the Game Industry Act related to Article 28 subparag. 2 of the Game Industry Act. In so doing, the lower court erred by misapprehending the legal doctrine on the game product as provided in the Game Industry Act, which led to the failure to exhaust all necessary deliberations, and thereby affected the judgment

The ground of appeal pointing this out is with merit.

3. Meanwhile, the lower court maintained the first instance judgment that rendered a single sentence on the ground that the above part of the crime was in a concurrent relationship with the remaining crime under the former part of Article 37 of the Criminal Act, and thus, has no choice but to reverse the entire judgment.

4. Therefore.