게임산업진흥에관한법률위반
The judgment of the court below is reversed.
Defendant
A Imprisonment with prison labor for six months and for one year, respectively.
except that this judgment.
1. Summary of grounds for appeal;
A. The evidence submitted by the prosecutor claiming the misunderstanding of facts and misapprehension of legal principles by Defendant A does not specify the profits earned by Defendant A through the instant crime.
Nevertheless, since the court below rendered a surcharge of KRW 8,345,00 against the defendant, the court below erred by misapprehending the legal principles and misconception of facts.
B. The lower court’s sentence on the Defendants’ assertion of unfair sentencing (Defendant A’s imprisonment for six months, suspension of execution for two years, community service hours, confiscation, additional collection charges, 8,345,00 won, Defendant B’s imprisonment for one year, additional collection charges, 8,345,00 won) is too unreasonable.
2. Determination
A. Whether Defendant A’s assertion of mistake of facts or misapprehension of legal principles is subject to confiscation or collection, or recognition of collection amount is not related to the facts constituting the crime, and thus, it is not necessary to prove strict facts, but also should be recognized by evidence. However, if it is impossible to specify the criminal proceeds subject to confiscation or collection, it shall not be collected.
Meanwhile, the purpose of collection under Articles 8 through 10 of the Act on the Regulation and Punishment of Criminal Proceeds Concealment, which is applied mutatis mutandis pursuant to Article 44(3) of the Game Industry Promotion Act (hereinafter “Game Industry Promotion Act”) is to deprive him of unlawful profits and prevent him/her from holding it. Thus, where several persons jointly gain profits from a crime under any subparagraph of Article 44(1) of the Game Industry Act, only the distributed amount, i.e., the profit actually accrued shall be confiscated and collected individually, and where it is impossible to determine the distributed amount, the distributed amount shall be confiscated and collected equally.
(Supreme Court Decision 2014Do4708 Decided July 10, 2014, and Supreme Court Decision 2009Do13912 Decided January 28, 2010). The health unit related to the instant case and the evidence duly adopted and examined by the lower court are as follows: (a) The Defendant, at the court of the lower judgment, is the instant case.