Defendant

Prosecutor

Maliapap

Public-service Advocates

Seoul Western District Court Decision 2009 High Court Decision 2812 Decided January 28, 2010

The prosecutor's appeal is dismissed.

1. Summary of the grounds for appeal;

In light of the legislative enactment and amendment of the former Game Industry Promotion Act (amended by Act No. 9928, Jan. 1, 2010; hereinafter the same), which regulates the citizens' corporate awareness, and the process of enacting and amending the statutes governing game products, etc., the game of this case where the defendant provided the place of installation and use power, and the game of this case installed and operated by Nonindicted 1 and 2 shall be deemed to fall under the game products stipulated in the Act of this case. However, the judgment of the court below which acquitted the defendant of the facts charged of this case on the ground that the game of this case does not fall under the game products stipulated in the Act of this case.

2. Summary of the facts charged

A. From April 2008 to July 19:10, 2009, the Defendant and Nonindicted Party 1 provided 1 with a pop-market displayer “Inward,” which the Defendant operated by the Defendant, for the purpose of enabling a large number of unspecified persons to use the game in which the entire use of the game software was rated by the Game Rating Board.” The Defendant provided the place of installation and use of the said game machine and received KRW 100,000 per month in return for providing the said game machine installation and use power, and received KRW 100,000 per month from Nonindicted Party 1 in collusion with the competent authorities. Accordingly, the Defendant operated juvenile game providing business without being registered with Nonindicted Party 1.

B. From June 2008 to July 19:10, 2009, the Defendant and Nonindicted Party 2 provided a game for a large number of unspecified persons to use the game in which the entire use of the game software was rated by the Game Rating Board, and Nonindicted Party 2 provided a game for a large number of unspecified persons to use the game. The Defendant provided the place of installation and use power of the said game machine and received KRW 100,000 per month from Nonindicted Party 2 in collusion with Nonindicted Party 2. Accordingly, the Defendant operated a juvenile game providing business without registering it with the competent authority.

3. The judgment of the court below

The lower court acquitted all of the facts charged of the instant case on the ground that the “game product” as prescribed by the instant Act is “a device and device produced for the main purpose of using video works or video works,” and the Defendant’s game machine, which provided the location and power of using the game machine, does not constitute an instrument and device produced for the main purpose of using video works or video works, and thus, is not subject to the instant Act.

4. Judgment of the court below

A. Whether the game of this case is game products prescribed by the law of this case

(1) A penal provision shall be strictly interpreted and applied in accordance with the language and text, and shall not be extensively interpreted or analogically interpreted to the disadvantage of the defendant, but a teleological interpretation that takes into account the legislative intent and purpose, history, etc. of the statute shall not be excluded unless it goes beyond the ordinary meaning of the language and text.

B. The text of Article 2 subparag. 1 of the Act provides, “The term “game products” means video products produced so that they can play a game using data processing technology, such as computer programs, or equipment and devices produced for the main purpose of using such video products, or equipment and devices produced for the main purpose of using such video products, which can enhance the use of leisure time, learning and sports effects, etc.” In the interpretation of the above provision, there is a question as to whether both “equipment” and “equipment” should be “products produced for the main purpose of using video products.”

Article 2(1) of the former Act provides that “If the Act provides for a game product with a sound record, video product, and game product, and the former Act on Video Products (repealed by Act No. 7943, Apr. 28, 2006; hereinafter referred to as “the former Act”) to promote the game industry and establish a healthy game culture by improving its own legal system on the game product that does not reflect its unique characteristics, the Act has been enacted for the purpose of promoting the game industry and maintaining the basic regulatory system on the game product of the former Act. The Act provides that “The former Act has been produced for the purpose of using information processing technology, such as computer programs, or equipment, or for raising the effectiveness of leisure, learning, and sports incidental thereto.” This provision provides that “The latter is not limited to those produced for the main purpose of using the video product, which are not manufactured for the purpose of using the former Act on Video Products.” This provision provides that “The latter shall be construed as “the main purpose of the Act on Video Products and Video Products for the purpose of using it.”

x) Thus, the defendant's game machine installed and operated the game machine and the game machine of this case constitutes the game product of this case. Thus, the judgment of the court below acquitted the defendant of the facts charged of this case on the premise that the game machine of this case does not fall under the game product of this case as provided by the law of this case. Thus, the prosecutor's assertion pointing this out has merit.

B. Whether the defendant bears the liability for the crime as a co-principal of a violation of the Game Industry Promotion Act

(1) On the other hand, however, Article 26(2) of the Act provides that "a person who intends to operate a juvenile game providing business or a business providing Internet computer game facilities shall be equipped with facilities prescribed by Ordinance of the Ministry of Culture, Sports and Tourism and register with the head of a Si/Gun/Gu." Article 45 subparagraph 2 of the Act of this case provides that "a person who conducts a business without permission or registration in violation of Article 25 or 26(1), (2), and the main sentence of Article 26(3) shall be punished." In light of the legislative form and purport of the Act, a violation of the Act on the Promotion of Game Industry due to nonperformance of the above registration constitutes a crime of omission which can be realized only by omission. A joint principal offender among the crime of omission is jointly liable to a large number of crimes of omission, and the obligation to register is established only when the common obligation is fulfilled. In other words, the obligation to register is interpreted to be granted to a person who intends to operate a juvenile game providing business, who is subject to the rights and obligations of a juvenile game providing business (see, etc.).

D. However, according to the evidence submitted by the prosecutor, it is difficult to view that the defendant was liable for registration under Article 26 (2) of the Act, or that the defendant was able to perform the above registration duty in common with the non-indicted 1 and 2, since the defendant provided the game of this case for many unspecified persons to use the game of this case and received profits therefrom, i.e., the subject to whom the business rights and duties arising from the juvenile game providing business through the game of this case are attributed to the non-indicted 1 and 2, and the defendant provided the place and power at the request of the non-indicted 1 and 2, and provided the defendant with the location and power to install the game of this case, and is not the subject to the above business rights and duties, and it is not the subject to the non-indicted 1, 2 and the non-indicted 1 and 2. In addition, the fact that the defendant provided the location and the power to use the game of this case to non-indicted 1 and 2 and the defendant received the payment for it is insufficient to recognize otherwise.

Article 325 of the Criminal Procedure Act provides that the defendant shall not be punished as a co-principal of a violation of the Game Industry Promotion Act due to the failure to perform the above duty of registration. Thus, the facts charged in this case constitute a case where there is no proof of criminal facts, and thus, the judgment of the court below which found the defendant not guilty shall be justified.

5. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since the prosecutor's appeal is without merit. It is so decided as per Disposition.

Judges Lee Jin-chul (Presiding Judge) and Kim Jong-Un