[2] The method of confiscation and collection where several persons jointly obtain profits from their speculative businesses that violate the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc.

1. Regarding ground of appeal No. 1

The court below acknowledged the facts as stated in its reasoning based on the adopted evidence, and determined that the game of this case is an organization likely to instigate speculative spirit, since the game of this case is designed to acquire merchandise coupons exceeding 20 million won in accordance with the so-called "Meluri function" of the Ministry of Culture and Tourism by the so-called "Meluri function" in the public notice of the standards for handling premiums in the Ministry of Culture and Tourism. The game of this case is an organization which is likely to cause speculative spirit, and the game of this case is not classified legally by the Korea Media Rating Board, and the game of this case is not classified differently, and there is no justifiable reason to believe that the defendant's act of operating the game of this case using the game of this case is not a crime. In light of relevant Acts and subordinate statutes and records, it is proper to take such measures of the court below and there is no violation of the rules of evidence

2. Regarding ground of appeal No. 2

Property generated by a crime under Article 30(1) of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc. shall be subject to the collection of penalty pursuant to Article 2 subparag. 1 [Attachment Table] 7, Articles 8 and 10 of the Act on Regulation and Punishment of Punishment of Criminal Proceeds Concealment (hereinafter “Criminal Proceeds Act”), and the above collection of penalty is intended to prevent a person from possessing it by deprived of unlawful gains (see Supreme Court Decision 2007Do2451, Jun. 14, 2007). Thus, where several persons jointly acquire profits from a speculative business, only the distributed amount, i.e., the profit actually accrued, shall be individually confiscated and collected, and where the distributed amount cannot be determined, the amount of penalty shall be equally divided (see Supreme Court Decision 2000Do794, Mar. 9, 201).

In light of the above legal principles, the reasoning of the judgment below, and the record, the defendant included the share of the non-indicted 437.5 million won, which the defendant engaged in the game of this case in the name of Kim Jong-man and divided into the proceeds of the 437.5 million won, as business operator in the name of the game of this case in the name of the game of this case and operated the business according to the defendant's instructions. Nevertheless, the court below erred in the misapprehension of legal principles as to the legal nature of the additional collection under the Criminal Proceeds Act or the additional collection between accomplices, which affected the conclusion of the judgment by failing to exhaust all necessary deliberation.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)