Whether a game-related enterpriser is not allowed to provide customers any gift, etc. in accordance with the Act on the Promotion of the Game Industry, for which, if a person holds it by dividing the score obtained according to the result of a game determined by a flexible method into 5,00 or 10,000 points, and where a person holds it, a certificate of keeping points that is to be put in the game machine to the degree of points written therein constitutes a gift, etc. (affirmative)

Article 28 subparag. 3 and Article 44(1)1-2 of the Game Industry Promotion Act

Supreme Court Decision 2014Do3532 Decided September 4, 2014

Defendant 1 and one other

Prosecutor

Ulsan District Court Decision 2017No456 decided September 14, 2017

Of the judgment of the court below, the part against Defendant 1 and the violation of the Game Industry Promotion Act due to the provision of free gifts, etc. to Defendant 2 are all reversed, and the case is remanded to the Ulsan District Court Panel Division.

The grounds of appeal are examined.

1. (a) Article 28 of the Game Industry Promotion Act (hereinafter “Game Industry Promotion Act”) provides that “The game business entities related to game products shall observe the following matters,” and subparagraph 3 provides that “No game products shall encourage speculation by providing game products, etc.: Provided, That this shall not apply to cases where the whole use of juvenile game providing business by means of the types of premiums (such as satiss and phrases, etc., but excluding cash merchandise coupons and securities), payment standards, methods, etc. prescribed by the Presidential Decree with respect to game products.” Article 44(1)1-2 of the Game Industry Promotion Act provides that a person who violates Article 28 subparag. 3 of the same Act shall be punished.

In full view of the above provisions of the Game Industry Act, if a person issues and issues points obtained according to the result of a game determined by a flexible method by dividing them into 5,000 points or 10,000 points, and if he/she possesses them, a certificate of keeping points that is put in a game machine to the degree of points indicated therein constitutes a gift which a game related business entity is not allowed to provide to customers (see Supreme Court Decision 2014Do3532, Sept. 4, 2014, etc.).

B. Based on its stated reasoning, the lower court acquitted the Defendants of the violation of the Game Industry Act (excluding the guilty part against Defendant 1) due to the provision of free gifts, etc. among the facts charged against the Defendants, on the following grounds: (a) it is difficult to view that the oophone in this case, which the Defendants offered to users of the game of this case, is merely a receipt issued by verifying the points acquired in the course of using the game of this case and indicating the points acquired in the course of using the game of this case as it is in the course of managing them; and (b) it is difficult

C. However, examining the reasoning of the lower judgment and the following circumstances revealed by the evidence duly admitted in light of the aforementioned legal principles, the lower court’s aforementioned determination is difficult to accept.

1) The game product “C&Wlu” and “astronomical delay” established in the instant game room (hereinafter “instant game product”) are the AD game classified as “juvenile usage prohibition.” The AD game is not created under the premise of issuing a certificate of score storage, but should, in principle, be terminated when a user has to complete the game due to personal reasons, given up scores obtained.

2) If a user puts the instant game product into the game machine, the game score converted the input amount into 1:1,000 won is registered, and the user will use the game.

3) The Defendants entered and stored the points that were acquired in accordance with the result of the game that was determined by a favorable method on the customers who completed the instant game work. Meanwhile, the Defendants issued three types of coophones, which indicated the two points, as the unit of 5,000 points, 20,000 points, 10,000 points, and 5,000 points, to the customers who completed the instant game work, and the remaining points were extinguished in this case.

4) The Defendants only entered and managed the number on the upper part of the phone when delivering the instant coophone to customers, but did not verify or enter the name of the customer and other personal information. Even when using the said coophone, there is no evidence to prove that the Defendants only divided the contents used and not used through the signature of the Defendant, etc. and confirmed whether the coophone was used by the person to whom the coophone was delivered.

5) As such, the Defendants did not enter or confirm the personal information, contact numbers, etc. of game users in the process of issuing and using the oophones of this case, and issued oophones by dividing them into 5,000 points, 10,000 points, and 20,000 points, and granted the possibility of realization and transaction of the oophones of this case. In fact, Defendant 1 exchanged the oophones of this case in cash.

6) Therefore, the coophone of this case where the score, which is the result of the game of this case, is embodied in property value as property value, and the coophone of this case, is not offered to customers by game products related business entities.

D. Ultimately, the lower court determined that it was difficult to view that the Defendants’ offering of the instant phone constitutes “act that encourages speculation by providing light goods, etc.” to the extent that it was proven beyond a reasonable doubt. In so doing, the lower court erred by misapprehending the legal doctrine on the meaning of “light goods, etc.” under Article 28 subparag. 3 of the Game Industry Act by misapprehending the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the meaning of “light goods, etc.”

2. Scope of reversal

Of the judgment below, the part of the violation of the Game Industry Act due to the offer of free gifts, etc. to the Defendants (excluding the guilty part against Defendant 1) should be reversed on the grounds as seen earlier.

However, in the case of Defendant 1, the crime of violation of the Game Industry Act due to the speculative landscape through the provision of free gifts, which is found guilty of this part and part thereof, should be reversed in relation to a single comprehensive crime. The crime of violation of the Game Industry Act due to the exchange of tangible and intangible results, which are the remaining guilty part, is a concurrent crime under the former part of Article 37 of the Criminal Act, and thus, one punishment should be imposed on the whole. Accordingly, the judgment of the court below against Defendant 1

3. Conclusion

Therefore, among the judgment below, the part on Defendant 1 and the part on the violation of the Game Industry Act due to the offer of free gifts, etc. to Defendant 2 are all reversed, and 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 Park Jung-hwa (Presiding Justice)