게임산업진흥에관한법률위반
The prosecutor's appeal is dismissed.
1. Summary of grounds for appeal;
A. Comprehensively taking account of the evidence submitted by the prosecutor of mistake of facts and misapprehension of legal principles, the period for which the Defendant committed the instant crime is total of 203 days, and the profits derived therefrom are KRW 1 million per day, and thus the amount additionally collected is equivalent to KRW 200 million.
However, the lower court deemed that the profit of KRW 300,000 per day was earned and collected only KRW 60,90,000 per day, and thus, the lower judgment is unlawful.
B. The lower court’s sentence of unreasonable sentencing (2 million won of fine) is too uneased and unreasonable.
2. Determination
A. The purpose of the judgment of additional collection on the assertion of mistake of facts and misapprehension of legal principles is to deprive the criminal of unlawful profits and prevent them from holding them, and the additional collection of criminal profits is to determine the amount of additional collection on the basis of the profit actually reverted to the criminal (see Supreme Court Decision 2007Do6019, Oct. 12, 2007). The profit generated from the criminal act provided in Article 44(2) of the Game Industry Promotion Act refers to at least the real profit gained by the criminal act itself even though it is not the net profit of the criminal defendant.
Therefore, in calculating criminal proceeds, it may result in collecting the total sales proceeds from an offender in excess of the actual gains from a crime, depending on the circumstances. Therefore, in order to obtain criminal proceeds, only one act constituting a whole criminal act out of the expenses paid by the offender, which is consumed for the creation of criminal proceeds (for example, the cost of purchasing free gifts, etc.) is difficult to be considered as the benefits actually acquired by the offender due to the crime, and thus, it shall be deducted from the calculation of the amount of penalty.
In light of the above legal principles, the defendant is in full view of the evidence duly adopted and examined by the court below on the instant case.