국민체육진흥법위반(도박개장등)등
1. Defendant B, C, G, and I’s appeals are dismissed, respectively.
2. The part of the lower judgment against Defendant H is reversed.
Although Defendants B, C, G, and I were involved in the instant crime and obtained profits therefrom, it cannot be deemed that the Defendants received criminal proceeds. Thus, the Defendants cannot be collected additionally from the said Defendants.
The sentence of the lower court against the illegal Defendants (i) imprisonment of two years and six months, additional collection of KRW 300 million, ② imprisonment of two years, confiscation, additional collection of KRW 65 million, ③ Defendant G: imprisonment of three years, protection observation and community service order of 160 hours, additional collection of KRW 4 million, ④ Defendant I: imprisonment of two years, protection observation and community service order of six months, additional collection of KRW 165 million, and KRW 20 million, additional collection of KRW 165 million, are too unreasonable.
Defendant
The lower court, by misapprehending the H legal doctrine, determined the Defendant’s punishment by omitting the mitigation of aiding and abetting.
The punishment of the court below (two years of suspended execution, protection observation and community service order 120 hours in the six-month imprisonment) is too unreasonable.
Defendant
Article 2 subparag. 1 of the Act on Regulation and Punishment of Concealment of Criminal Proceeds (hereinafter “the Act on Regulation of Concealment of Criminal Proceeds”) / [Attachment] Article 2 subparag. 1(g) of the said Act provides that the crime of opening a gambling space under Article 247 of the Criminal Act and other crimes in the upper concurrent relationship therewith shall be “serious crime”. Article 2 subparag. 2(a) of the said Act provides that the property generated by a criminal act corresponding to a serious crime or the property acquired as remuneration for such criminal act shall be “criminal proceeds”. Article 2 subparag. 2(a) of the said Act provides that the property derived from criminal proceeds and criminal proceeds shall be additionally collected pursuant to Articles 10 and 8 of the said Act.
The purpose of the above additional collection is to deprive a person of unlawful profits and prevent him from possessing it. Thus, in case where several persons jointly obtain profits by committing a crime such as the establishment of a gambling space and another crime in a mutually competitive relationship with it, the amount distributed, that is, the profit actually accrued, shall be individually.