도박공간개설
[Defendant A] The defendant A's appeal is dismissed.
[Defendant C] The part of the lower judgment against Defendant C
1. Summary of grounds for appeal;
A. Defendant A1) The lower court ordered Defendant A to collect a surcharge of KRW 10,409,100,00, even though Defendant A did not have received the actual distribution of revenues, there is an error of law by misapprehending the legal doctrine on the collection of additional charges. 2) The sentence (eight months of imprisonment, and confiscation) sentenced by the lower court of unreasonable sentencing is too unreasonable.
B. Defendant C1) The lower court’s decision ordering Defendant C to collect a surcharge of KRW 23,409,100,000, even though the profit actually acquired by Defendant C is about KRW 5.6 million, is erroneous in misapprehending the legal doctrine on the collection of additional charges. 2) The sentence sentenced by the lower court of unreasonable sentencing (one hundred months of imprisonment) is too unreasonable.
2. Judgment on Defendant A
A. In a case where several persons jointly obtain a benefit from the misunderstanding of the legal principles as to the calculation of the additional collection charge, only the amount distributed, i.e., the profit actually accrued, shall be confiscated and collected respectively, and where it is impossible to determine the allocated amount, the amount equally divided shall be confiscated and collected.
(See Supreme Court Decision 2007Do4640 Decided November 30, 2007, etc.). According to the evidence duly adopted and examined by the court below, the fact that the recent one week-out period, which was verified in the game room, acquired a total of KRW 373,660,00 with earnings of KRW 11,20,00, the defendants acquired a total of KRW 373,660,00 with earnings of KRW 3%, the defendants conspired to operate the game room and operated the game room for 13 days and every day during the above period, and the defendants did not settle the profits they acquired.
According to this, it is reasonable to calculate the total amount of profits that the Defendants acquired during the said 13-day period as KRW 20,818,200 [=1,601,400 won per day (average profits of 11,209,800 ± 7) 】 13 days]. Since the amount of money distributed to the Defendants cannot be determined, the above profits shall be equal.