[1] The time when the crime of opening gambling games under Article 247 of the Criminal Code was established and operated for the purpose of profit-making

[2] The case holding that the crime of gambling opening, even though users did not actually have access to the gambling game site and gambling, was committed, in case where the defendant recruited a store and installed the facilities to enable the Internet gambling game and operated the gambling game program, and it did not proceed to any longer for business purposes, the crime of gambling opening, even though it was not done by the users

[1] The crime of gambling opening under Article 247 of the Criminal Code amounts to the number of money if a game user opened a gambling for the purpose of profit-making, and does not ask that a gambling was made in reality. Therefore, in a case where a game user opens and operates an Internet gambling game site, such as a ambayer and a ambato-saw for profit-making purposes, in reality, he receives money from the game users and provides game money and plays a gambling by accessing the above gambling game site and exchange the money acquired by the above game in cash with the game user, and in a situation where property can be collected between the game user and the game company, regardless of whether the game user connected the above gambling game site and actually performed the games, the crime of gambling opening the gambling is committed.

[2] The case holding that the crime of gambling opening cannot be denied on the ground that the crime of gambling opening is not established on the ground that the defendant did not simply attract a store but merely cause the users who found the place to visit the site of gambling games and let them gamble gambling by visiting the site of the defendant, if there is room to view that the problem occurred while the facility, etc. was installed to enable the Internet gambling game to run the gambling game, and the problem occurred while running the gambling game program, thereby doing so, it can be viewed that the crime of gambling opening cannot be deemed that the crime of gambling opening was committed

[1] Article 247 of the Criminal Code / [2] Article 247 of the Criminal Code

Defendant 1 and three others

Prosecutor

Seoul Northern District Court Decision 2007No1626 decided May 26, 2008

Of the judgment of the court below, the part of the case is reversed and remanded to the collegiate division of the Seoul Northern District Court. The remaining grounds of appeal are dismissed. It is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench, except as otherwise alleged in the ground of appeal.

We examine the grounds of appeal.

1. As to the defendants' opening of gambling houses from the first policeman of April 2006 to the first policeman of May 2006

The crime of gambling opening under Article 247 of the Criminal Act reaches the base of the crime of gambling opening, regardless of whether or not a game user connects to the above gambling game site and actually performed the actual game, in the event that the Internet gambling game site, such as a prompt-to-beer, a Baduk, and a high-to-door, was opened and operated for the purpose of profit-making, the game money is actually received money from the game users and the game users provide money and gambling with the above gambling game site, and the game users exchange the game money acquired by the above game with cash in a situation where property can be collected between the game users and the game company, such as exchanging the game money acquired by the above games in cash.

According to the reasoning of the judgment below, the court below found that the defendants recruited the gambling game site of the gambling game site in Ansan-si and Daejeon-si, where the defendants intended to open the gambling game site, but there is no evidence to acknowledge that the defendants actually opened the gambling game site and allowed the users to play gambling by accessing the gambling game site established by the defendants. Thus, since the defendants merely run the gambling game program at the time of soliciting the stores, it cannot be deemed that the defendants opened the gambling game site, and therefore, this part of the facts charged constitutes a case where there is no evidence of crime, and thus, the defendants were acquitted.

However, according to the evidence adopted by the court below, the defendants opened an Internet gambling game site in the name of Sweak Sweak Co., Ltd. with Defendant 4 as the representative director (hereinafter "Sweak Sweak"), and opened the Internet gambling game site in which the defendant 4 was able to engage in gambling, such as sweak, Baduk, and Go-to-sweak, etc., and opened 12 or 13 sweaks of the above gambling game site's sweaks and 12 or 13 sweaks of the above gambling game site's sweaks, such as Sweak Sweaks and Sweak Sweak Sweaks, etc., and the defendants attended the above 12 or 16 sweaks's sweaks' sweaks' sweaks' sweaks' sweaks' sweaks' waks' 2 or more 16 sweaks' oaks's's 2.

Examining these facts in light of the above legal principles, not only is the extent of testing the gambling game program when the Defendants simply recruited a chain store but also it is difficult to deem that the Defendants did not continue to engage in any business any longer due to the occurrence of a problem while installing facilities, etc. to enable the Internet gambling game by soliciting the chain store and operating the gambling game program. If the circumstances occur, it can be deemed that the crime of opening the gambling game has already been committed. Furthermore, the establishment of the crime of opening the gambling game is not denied on the ground that the Defendants did not have access to the gambling game site of the Defendants recruited by the users to the users who discovered the place of gambling.

Nevertheless, the judgment of the court below which held that the defendants cannot be deemed to have opened a place for gambling on the ground of the circumstances in its holding is erroneous in the misapprehension of legal principles as to the timing of opening the crime of opening gambling, violation of the rules of evidence, and incomplete deliberation, etc., which affected the conclusion of the judgment.

Therefore, the ground of appeal on this part is with merit.

2. On May 2006, to June 2006, as to the defendants' violation of the Act on Gambling Place and Sound Records, Video Products, and Game Products from the first patrol officer to the second patrol officer (the violation of classification)

According to the reasoning of the judgment of the court below, the court below reversed the judgment of the court of first instance on the ground that there is no evidence to support this part of the facts charged, and that there is no evidence to support this part of the facts charged, and in the case of the remaining defendants, the defendant 4 first appeared in the defendant 4's statement in the Gangnam-gu Jeondong Office's original statement in the case of the defendant 4, and the remaining defendants consistently denied the business facts related to the above bareboat, and there is no error in the misapprehension of the legal principles as to the rules of presumption of confession in the grounds for appeal.

3. As to Defendant 3’s opening of gambling place from July 2006 to August 8 of the same year

According to the reasoning of the judgment of the court below, since there is no evidence to acknowledge that Defendant 3 conspired with the remaining defendants and opened gambling as stated in the above facts charged, the court below judged that this part of the facts charged against Defendant 3 constitutes a case where there is no proof of crime, and found the defendant not guilty of this part of the facts charged is based on the reasonable free evaluation of the judge of the fact-finding court, and it is acceptable in light of the records, and there

4. Conclusion

Therefore, among the judgment below, the court below reversed the defendants' opening of gambling room from April 2006 to May 2006 for the defendants. As to the defendants 2 and 4, the court below reversed the opening of gambling room from July 2006 to August 8, 2006 for those who are concurrent crimes with the above reversed part, and remanded this part of the case to the court below for further proceedings consistent with this Opinion. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)