Whether game money, etc. illegally produced is included in the “game money or data, such as game items, produced and acquired through the abnormal use of game products” under Article 18-3 subparag. 3 of the former Enforcement Decree of the Game Industry Promotion Act and “data, such as game items, produced and acquired by using game products with personal information of another person” under Article 18-3 subparag. 3(c) of the Enforcement Decree of the Game Industry Promotion Act (affirmative)

In full view of the legislative background and amendment of Article 32(1)7 of the Game Industry Promotion Act (hereinafter “Game Industry Promotion Act”), and subparagraph 1, 2, and 3 of Article 18-3 of the former Enforcement Decree of the Game Industry Promotion Act (amended by Presidential Decree No. 23863, Jun. 19, 2012; hereinafter “former Enforcement Decree”), and subparagraph 3 (a), (b), (c), and (d) of Article 18-3 of the Enforcement Decree of the Game Industry Promotion Act (amended by Presidential Decree No. 23863, Jun. 19, 2012; hereinafter “the former Enforcement Decree”), the legislative purpose and purpose of the Game Industry Promotion Act are to interpret the meaning of “the former Enforcement Decree of the Game Industry Promotion Act” to include “the former Enforcement Decree of the Game Industry Promotion Act’s production or re-acquisition of personal information by using a mobile phone inserted with another person’s ID and chips for the same purpose or to interpret it as “the former Ordinance of the Game Industry Promotion Act’s production or re-acquisition of information.”

Articles 32(1)7 and 44(1)2 of the Game Industry Promotion Act; subparagraph 1, 2, and 3 of Article 18-3 of the former Enforcement Decree of the Game Industry Promotion Act (Amended by Presidential Decree No. 23863, Jun. 19, 2012); subparagraph 3(a), (b), (c), and (d) of Article 18-3 of the Enforcement Decree of the Game Industry Promotion Act; subparagraph 3(a) and (d) of Article 18-3 of the Enforcement Decree of the Game Industry Promotion Act;

Defendant 1 and one other

Defendants

Law Firm TelviS et al.

Seoul Central District Court Decision 2014No323 Decided June 26, 2014

All appeals are dismissed.

The grounds of appeal are examined.

1. Defendant 1’s ground of appeal

According to the records, Defendant 1 appealed the judgment of the first instance on the sole ground of unfair sentencing as the grounds of appeal. In such a case, the allegation that the judgment of the court below erred by mistake of facts or misapprehension of legal principles cannot be a legitimate ground of appeal.

2. Defendant 2’s ground of appeal

A. As to the assertion that Defendant 1 did not conspired with Defendant 1

In relation to co-offenders who are jointly engaged in a crime, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if the combination of the intent is made in order or impliedly through several persons, the conspiracy relationship is established, and even if there was no direct participation in the act of the execution, the person who is not directly involved in the act of the other co-principal is punished as a co-principal (see Supreme Court Decision 2000Do3483, Nov. 10, 200).

According to the reasoning of the judgment below, the court below acknowledged facts as stated in its reasoning based on the evidence duly adopted, and determined that Defendant 2 and Defendant 1 conspired to commit the crime of fraud using computers, etc. at least at the time of original adjudication, the crime of fraud, and the crime of violation of the Game Industry Promotion Act, since Defendant 2 conspired to commit the crime of fraud using computers, etc. at least, and there was a relation of increasing mutual benefits through continuous transactions, and thus, Defendant 2 is liable for the crime of conspiracy joint principal offender, even though Defendant 2 did not directly share the act of purchasing game items or exchanging the game items by using the cell phone installed with ID and the core chip from Defendant 1, and Defendant 2 did not directly share the act of selling the game items by using the cell phone installed with ID and the core chip from Defendant 1.

Examining the reasoning of the judgment below in light of the above legal principles, the fact-finding and judgment of the court below are just, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles

B. As to the violation of the Game Industry Promotion Act (hereinafter “Game Industry Promotion Act”) which was solely committed

In order to eradicate speculative game products and create a healthy game culture by arranging exchange or repurchase of game products as a result of such activities, the Game Industry Promotion Act provides that no one shall exchange or arrange for exchange or repurchase of tangible or intangible results (referring to game money prescribed by Presidential Decree and things similar thereto prescribed by Presidential Decree, such as score, premiums, and virtual currency used in the game) acquired through the use of game products or subparagraph 7 of Article 32 (1) of the Game Industry Promotion Act for business purposes, and Article 18-3 of the former Enforcement Decree of the Game Industry Promotion Act (amended by Presidential Decree No. 23863, Jun. 19, 2012; hereinafter referred to as the "former Enforcement Decree"), and "data producing or exchange of game products" (referring to game money prescribed by Presidential Decree No. 350, Jun. 3, 2016; hereinafter the same shall apply) or "data producing or exchange of data game products" falling under subparagraph 2 (b) of the same Article or similar thereto.

In full view of such provisions and the legislative background and the amendment process of the Enforcement Decree of the Game Industry Promotion Act, the legislative intent and purpose of the Act are to interpret that, without authority, the game money produced and acquired through the abnormal use of the game product, such as game money produced in a large amount of money by repeatedly purchasing game money through a small-sum settlement method after accessing the game product using a mobile phone in which chips are inserted, without authority, is also deemed to have been subject to punishment in the event of exchanging or exchanging it or arranging for exchange or re-purchasing it. Thus, it cannot be said that the game money purchased by a person without authority is included in "data such as game money or game items produced and acquired through the abnormal use of the game product" and "data such as game money or game items produced and acquired through another person's personal information" under Article 18-3 subparagraph 3 (c) of the Enforcement Decree of the Act and Article 18-3 (c) of the amended Enforcement Decree of the Game Industry Promotion Act.

In the same purport, the court below rejected the defendant's assertion that the game item acquired by Defendant 2 through a small payment method using the cell phone containing another person's ID and the core chips illegally acquired by using the mobile phone inserted with the game product, is not game money or data such as game items, etc. produced or acquired through the use of the game product, and it is just to find the defendant guilty of this part of the charges. In so doing, contrary to what is alleged in the grounds of appeal, there is no error of law by misapprehending the legal principles on "the tangible or intangible results obtained through the use of game product"

C. As to the violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment

Article 3(1)1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment punishs “the act of pretending a fact about the acquisition or disposition of criminal proceeds, etc.” In such an act, such act may include the act of pretending criminal proceeds, etc. to belong to a third party, such as depositing criminal proceeds, into an account opened in the name of another person called the so-called borrowed account. In a specific case, in determining whether the act of depositing criminal proceeds, etc. against a borrowed account constitutes “the act of pretending the fact about the acquisition or disposition of criminal proceeds, etc.”, the relationship between the actual user and the account holder, the motive and background of the use of the relevant account by the user, and the specific circumstances of deposit transactions shall be comprehensively taken into account.

In addition, “an act of pretending a fact about the acquisition or disposition of criminal proceeds, etc.” under Article 3(1)1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment is apparent in the legal text that it does not constitute “an act of hiding criminal proceeds,” unlike “an act of concealing criminal proceeds” under Article 3(1)3 of the same Act, and thus, it is not clear that it does not constitute the elements of “the purpose of inducing specific crimes or pretending to the assets legitimately acquired.” Thus, if it is true that the fact about the acquisition or disposition of criminal proceeds, even though it was not for the purpose of encouraging specific crimes or pretending the assets lawfully acquired, it shall not be exempted from the liability for crimes under the above Act (see Supreme Court Decision 2007Do1004, Feb. 2

In the same purport, the court below is just in holding that even though Defendant 2 was motiveed for the prompt and efficient sale of game items at the game item brokerage site, Defendant 2 did not have awareness of an act that disguises the acquisition or disposal of criminal proceeds, etc., it is difficult to deem that Defendant 2 did not have awareness of an act that leads to the acquisition or disposal of criminal proceeds, etc., and that Defendant 2’s act of remitting the sales proceeds of game items to the borrowed name account of his spouse and parent-child constitutes “an act that disguises the fact about the acquisition of criminal proceeds” as provided in Article 3(1)1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, and contrary to what is alleged in the grounds of appeal,

In addition, Supreme Court Decision 2004Do5652 Decided Defendant 2's state appointed defense counsel is not applicable to this case where Article 3 (1) 3 of the Act on Regulation and Punishment of Criminal Proceeds Concealment applies to the concealment of Criminal Proceeds Concealment.

3. Conclusion

All appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)