사기등
The judgment below
The part concerning confiscation shall be reversed.
Seized evidence shall be confiscated from the accused.
1. Of the lower judgment, the lower court rendered ex officio determination on the part regarding confiscation in accordance with Article 48(1)1 of the Criminal Act with respect to a physical card in W, USB security card, OTP card, X passbook (Evidence 8 or 11) in accordance with Article 48(1) of the Criminal Act.
Articles subject to confiscation under Article 48 (1) 1 of the Criminal Act shall be "goods provided or intended to be provided for an act of crime", and they shall not belong to any person other than the offender.
The “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 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 care unit in light of the foregoing, the evidence submitted by the prosecutor alone is insufficient to recognize that the above seized property in W was an article provided or intended to be provided in the criminal act recorded in the judgment of the court below
Therefore, as long as there is no evidence that the above seized articles meet the requirements of confiscation, the court below erred by misapprehending the facts or by misapprehending the legal principles on the confiscated portion of Articles 8 through 11 of the judgment below, which affected the conclusion of the judgment.
Therefore, among the judgment below, the part concerning confiscation can no longer be maintained.
2. Determination on the prosecutor’s appeal
A. The summary of the reasons for appeal (one year and six months of imprisonment) of the lower court is deemed to be too unhued and unreasonable.
B. Although the crime of Bophishing was committed in an intelligent and repeated manner against many unspecified persons, its social harm is serious, it is difficult to eradicate the crime in the form of an occupation organization by taking part in the role of inducement, cash collection measures, cash payment measures, etc., and by arresting the principal offender.