특수절도등
The judgment below
The part of the defendant's case against the defendant shall be reversed.
A defendant shall be punished by imprisonment for not less than one year and six months.
1. Summary of the grounds for appeal (in original case: Imprisonment with prison labor for one year and six months and confiscation);
2. The lower court rendered an ex officio determination as to whether seized evidence 1 to 5 (Seoul Southern District Prosecutors' Office 2019Mo2570) has been confiscated in accordance with Article 48(1)1 of the Criminal Act, with respect to each physical check card (Evidence 1 to 5 of the Seoul Southern District Prosecutors' Office 2019Mo2570) in the name of those who were confiscated, AB, AC, AD, AE, and AE.
Articles subject to confiscation under Article 48 (1) 1 of the Criminal Act shall be those provided or intended to be provided for criminal acts, and they shall not belong to any person other than the criminal.
The phrase “offender” under Article 48(1) of the Criminal Act includes an accomplice. As such, not only the property owned by the defendant but also the property owned by the accomplice may be confiscated regardless of whether the accomplice is prosecuted by the accomplice. Here, the accomplice includes not only the co-principal, the person who constitutes the crime of aiding and abetting, but also the person who is in a necessary accomplice relationship (see Supreme Court Decision 2006Do5586, Nov. 23, 2006). In light of the above legal doctrine, the health standup and the evidence submitted by the prosecutor alone, the evidence submitted by the prosecutor alone, transferred or renounced the ownership of the physical card by each of the above physical
It is insufficient to recognize that the above nominal persons are co-offenders of a crime of violating the Electronic Financial Transactions Act, and there is no other evidence to acknowledge it.
Therefore, as long as there is no evidence that the above physical card satisfies the requirements of confiscation, the judgment of the court below erred by misapprehending the facts or by misapprehending the legal principles on the confiscated portion of the evidence Nos. 1 through 5 of the Seoul Southern District Prosecutors' Office 2019Mo2570, which affected the conclusion of the judgment.
3. The judgment of the court below on the defendant's case is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion on unfair sentencing, and the following is again decided after pleading.