Whether the provisions prohibiting the provision of free gifts, etc., set up the concept of a game product deemed to be a speculative act in the “standards for free gifts handling of game establishments” (No. 2004-14 of the Ministry of Culture and Tourism’s notification) and, if so, deviate from the scope of delegation under Article 32 subparag. 3 of the former Sound Records, Video Products

Article 32 subparag. 3 of the former Sound Records, Video Products and Game Products Act (repealed by Act No. 7943 of Apr. 28, 2006) (see Article 28 subparag. 3 of the current Game Industry Promotion Act)

Constitutional Court Decision 2005HunMa161, 189 decided Nov. 27, 2008 (HunGong146, 1758) Supreme Court Decision 2006Do7642 decided Dec. 11, 2008 (Gong2009Sang, 48)

Defendant

Defendant

Suwon District Court Decision 2007No1327 Decided October 19, 2007

The appeal is dismissed.

We examine the grounds of appeal.

1. Article 32 subparag. 3 of the former Sound Records, Video Products and Game Software Act (amended by Act No. 7943 of Apr. 28, 2006; hereinafter “the Act”) provides that a game providing business entity is prohibited from providing free gifts which may encourage speculation or have harmful effects on juveniles by violating the types of free gifts and methods of providing free gifts as determined by the Ministry of Culture and Tourism public notice. In the interpretation of the above provision, the Minister of Culture and Tourism may determine a method of providing free gifts for each individual game product by evaluating the degree of encouragement of speculation, etc. The degree of encouragement of speculation, etc. can be established by establishing a specific standard on the degree of encouragement of speculation, and it is possible to prohibit the provision of free gifts for other game products. Accordingly, Article 32 subparag. 3 of the former Act provides that the scope of provision of free gifts in light of Article 20 subparag. 3 of the Act’s provision of free gifts within the scope of delegation of Article 20 subparag. 14 of the Act. 2004.

In the same purport, the court below determined that the notice of this case based on Article 32 subparag. 3 of the Act cannot provide free gifts if the game time or amount used exceeds a certain limit according to the method of game, and therefore does not exceed the limit of delegation under Article 32 subparag. 3 of the Act, and it is justifiable to maintain the judgment of the court of first instance which convicted all of the facts charged of this case. There is no error of law by misunderstanding the legal principles related to the limit of delegation legislation, as otherwise alleged in the ground of appeal.

2. The argument that the defendant's punishment of the court below is too heavy in the grounds of appeal cannot be a legitimate ground of appeal under Article 383 subparagraph 4 of the Criminal Procedure Act in this case where the suspension of the execution of imprisonment, community service order and fine is imposed against the defendant.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)