(영문) 대법원 2015.11.27. 선고 2014도10551 판결

The non-guilty part of the judgment of the court below shall be reversed, and that part of the case shall be remanded to the Suwon District Court Panel Division.

Reasons

The grounds of appeal are examined.

1. In full view of the provisions of the Game Industry Promotion Act (hereinafter “Game Industry Promotion Act”) and the Enforcement Decree of the Game Industry Act, and the legislative and amendment process of the Enforcement Decree of the Game Industry Act, game money, etc. transferred after accessing a game product with another person’s personal information constitutes “game money or data, such as game items, produced or acquired by using a game product” as personal information of another person under subparagraph 3 (c) of Article 18-3 of the Enforcement Decree of the Game Industry Act, and the act of exchanging, arranging exchanging, exchanging, or re-purchasing game money acquired through such act is subject to punishment under Article 32(1)7 of the Game Industry Act (see Supreme Court Decision 2014Do838, Nov. 13, 2014).

2. The court below determined that the game of this case, which the defendant exchanged, was not "game money produced and acquired by using game products with personal information of another person" under Article 32 (1) 7 of the Game Industry Act and Article 18-3 subparagraph 3 (c) of the Enforcement Decree of the Game Industry Act, since it was not acquired as the result of a juristic act performed by the defendant outside of game products, and it did not constitute "game money produced and acquired by using game products with personal information of another person."

3. However, it is difficult to accept the above determination by the lower court.

Even according to the reasoning of the judgment below, the Defendant connected the online game server created by using another person’s personal information to the online game, and received the instant Anden through a transaction channel between characters in the game. According to the evidence duly admitted and investigated by the court below and the first instance court, the Defendant should operate a transaction channel between characters by linking the Defendant with the online game server after accessing the Niet online game server.

Examining the above facts in the application of the legal principles as seen earlier, it is determined that the instant case constitutes “game money or data, such as game items, produced or 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 Act. Nevertheless, the lower court determined that the instant case does not constitute “game money produced or acquired by using game products with personal information of another person” under Article 32(1)7 of the Game Industry Act and Article 18-3 subparag. 3 (c) of the Enforcement Decree of the Game Industry Act. In so doing, the lower court erred by misapprehending the legal principles as to “amount obtained by using game products” subject to the prohibition of exchange business under the Game Industry Act, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the non-guilty part of the judgment below is reversed, and that 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.