A. The sentence imposed by the lower court (two years of imprisonment, confiscation) is too unreasonable.

B. Prosecutor 1) 2 (No. 3) and 1 (No. 4) of the train passes which were erroneous or forged by mistake of facts and misapprehension of legal principles fall under the “goods that were produced or acquired by means of criminal conduct” under Article 48 of the Criminal Act and thus, should be confiscated. Nevertheless, the lower court did not issue an order to confiscate each of the above goods. Thus, the lower court erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment, by misapprehending the legal doctrine. 2) The above sentence imposed by the lower court on the grounds that it is too unreasonable.

2. Determination

A. Article 48(1) of the Criminal Act provides, “The ownership of any person other than the criminal, or any person other than the criminal knowingly acquired after the crime, may confiscate all or part of the following articles.” Article 48(1) of the Criminal Act provides, “The object of confiscation is “the goods produced by, or acquired by, an act of crime” as the object of confiscation.

With respect to this case, two copies of the train passes confiscated (No. 3) were used for the movement of the defendant in the course of the defendant's Bosing fraud, and one receipt (No. 4) was used by the defendant for the purchase of train passes, and it is difficult to view that the defendant directly purchased or acquired the train passes as a result of the fraud of this case.

In addition, since the confiscation under Article 48 (1) 1 of the Criminal Act is voluntary, the issue of whether to confiscate even an article that meets the requirements for the confiscation is left to the court's discretion (see, e.g., Supreme Court Decision 2000Do515, Sept. 4, 2002), and even if so, each of the above articles is the subject matter.