Whether “a similar act” under Article 26(1) of the National Sports Promotion Act constitutes “a similar act” in relation to the issuing of sports betting tickets based on the National Sports Promotion Act (affirmative)

Article 26(1) of the National Sports Promotion Act provides that “No person, other than the Seoul Olympic Sports Promotion Foundation or an entrusted business entity, shall issue sports promotion betting tickets or similar things (including the issuance by means of information and communications networks) and provide property or property benefits (hereinafter referred to as “similar act”) to a person who correctly predicted the result,” and Article 47 Subparag. 2 of the same Act provides that a person who violates this Act shall be punished.

The National Sports Promotion Act was partially amended by Act No. 6013 on August 31, 1999 in order to introduce a business of issuing sports betting tickets, along with the provision that “the Seoul Olympic Sports Promotion Foundation may operate a business of issuing sports betting tickets.”

In full view of the contents of the National Sports Promotion Act, the prohibition of “similar act”, the legislative purport of the National Sports Promotion Act, and the legislative purport of the provision, etc., it constitutes “similar act” under Article 26(1) of the National Sports Promotion Act, which is similar to the business of issuing sports betting tickets based on the National Sports Promotion Act, to “issuing sports betting tickets or similar things, and providing property or property benefits to the person who correctly predicted the result.” On the contrary, in a case where only issuing sports betting tickets or similar things, and providing property or property benefits to a person who correctly predicted the result without issuing such sports betting tickets or similar things, barring special circumstances, it cannot be deemed as constituting “similar act” under Article 26(1) of the National Sports Promotion Act, barring special circumstances.

Articles 1, 26(1), and 47 subparag. 2 of the National Sports Promotion Act; Article 22-2(1) of the former National Sports Promotion Act (wholly amended by Act No. 8344, Apr. 11, 2007) (see current Article 24(1))

Defendant 1 and one other

Defendants

Law Firm Barun et al.

Seoul Central District Court Decision 2016No5445 Decided July 18, 2017

The part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. As to the establishment of gambling space by the Defendants

Examining the reasoning of the lower judgment in light of the evidence duly admitted, it is justifiable for the lower court to have found the Defendants guilty of opening gambling spaces (excluding the part on acquittal of Defendant 2) among the charges charged against the Defendants. In so doing, it did not err by misapprehending the legal doctrine on the establishment of gambling spaces, contrary to what is alleged in the grounds of

2. As to the Defendants’ violation of the National Sports Promotion Act (Gambling, etc.)

A. Article 26(1) of the National Sports Promotion Act provides, “No person, other than the Seoul Olympic Sports Promotion Foundation or an entrusted business entity, shall issue sports promotion betting tickets or similar things (including the issuance by means of information and communications networks) and provide property or property gains (hereinafter “similar act”) to persons who win at the betting.” Article 26(1) of the same Act provides, “No person who violates this provision shall be punished.”

The National Sports Promotion Act was partially amended by Act No. 6013 on August 31, 1999 in order to introduce a business of issuing sports betting tickets, along with the provision that “the Seoul Olympic Sports Promotion Foundation may operate a business of issuing sports betting tickets.”

In full view of the contents of the National Sports Promotion Act, the prohibition of “similar act”, the legislative purport of the National Sports Promotion Act, and the legislative purport of the provision, etc., it may be deemed that similar to the business of issuing sports betting tickets based on the National Sports Promotion Act, “the issuance of sports betting tickets or similar things, and the provision of property or property benefits to the person who correctly predicted the result” constitutes “similar act” under Article 26(1) of the National Sports Promotion Act. In other words, in a case where only issuing sports betting tickets or similar things, and the provision of property or property benefits only is provided to the person who correctly predicted the result without issuing such sports betting tickets or similar things, barring special circumstances, it cannot be deemed that such act constitutes “similar act” under Article 26(1) of the National Sports Promotion Act, barring special circumstances.

B. The reasoning of the lower judgment reveals the following facts.

(1) In collusion with the Nonindicted Party, the Defendants did not issue sports betting tickets or similar to sports betting tickets that enable the Defendants to walk cash or game money, etc. as a result of the sports games.

(2) In lieu of the above, the Defendants and the Nonindicted Party entered into a contract with the operators of the foreign-name sports betting site (hereinafter “foreign sports betting site”) and charged the Defendants and the Nonindicted Party with the game money in receipt of deposits from the members requesting the filling of the games available at the overseas website to the accounts managed by the Defendants and the Nonindicted Party, etc., thereby enabling the members to walk out the results of the sports games at the overseas site.

(3) If members request the exchange of game money on the instant relay site, the Defendants and the Nonindicted Party, the operator of the instant relay site, exchanged game money into the Korean currency and deposited it into the said member’s account.

C. Examining the above facts in light of the legal principles as seen earlier, the facts charged that the Defendants conspired with the Nonindicted Party, etc. and operated the instant relay site in collusion with the Nonindicted Party, alone, does not constitute “similar act” under Article 26(1) of the National Sports Promotion Act.

D. Nevertheless, the lower court found the Defendants guilty on this part of the facts charged (excluding the part on acquittal of the Defendant 2) on the ground that the Defendants’ act of operating the instant relay site in collusion with the Nonindicted Party, etc. constituted “similar act” under Article 26(1) of the National Sports Promotion Act.

In so determining, the lower court erred by misapprehending the legal doctrine on “similar act” under Article 26(1) of the National Sports Promotion Act, thereby adversely affecting the conclusion of the judgment. The Defendants’ ground of appeal assigning this error is with merit.

3. As to Defendant 2’s violation of the National Sports Promotion Act (Gambling, etc.) and habitual gambling

Examining the reasoning of the lower judgment in light of the evidence duly admitted, it is justifiable for the lower court to have convicted Defendant 2 of the violation of the National Sports Promotion Act (excluding the part of acquittal in the reasoning) and habitual gambling among the facts charged against Defendant 2. In so doing, it did not err by misapprehending the legal doctrine on the specification of the facts charged

4. As to Defendant 2’s violation of the Use and Protection of Credit Information Act

Examining the reasoning of the lower judgment in light of the evidence duly admitted, it is justifiable for the lower court to have convicted Defendant 2 of violating the Credit Information Use and Protection Act among the facts charged against Defendant 2. In so doing, it did not err by misapprehending the legal doctrine on the crime of aiding and abetting

5. Scope of reversal

Of the judgment of the court below, the part on violation of the National Sports Promotion Act (Gambling, etc.) against the Defendants should be reversed. As such, the court below rendered a single punishment by deeming that the part on the grounds for reversal as above and the remaining (including the part on acquittal of the grounds against Defendant 2) are all inclusive crimes, concurrent crimes under the former part of Article 37 of the Criminal Act, or concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the part on the Defendants in the judgment below should be reversed. Meanwhile, as long as the main sentence against the Defendants

6. Conclusion

Without examining the remaining grounds of appeal by the Defendants, each part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)