전자금융거래법위반등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for one year.
Provided, That the above punishment shall be imposed for three years from the date this judgment became final and conclusive.
1. Summary of grounds for appeal;
A. The sentence of the lower court (one year, six months of imprisonment and confiscation) is too unreasonable.
B. The Prosecutor’s sentence (one year, six months of imprisonment, and confiscation) of the lower court is too unhued and unreasonable.
2. Ex officio determination as to whether seized evidence Nos. 1, 6, 7 and 8 has been confiscated;
A. The lower court’s judgment is clear that it is a clerical error in “P” in light of the number of seized evidence No. 1 [ Q cards (R: BI investigation records 226 pages)
(The English name in the name of the nominal owner on the card is written in P.) Nos. 3 (8 of KRW 50,00), No. 4 (2 of KRW 10,00), No. 6 of the card (O), No. 7 of the card [G Bank Card (H and F), and No. 8 of the card] (G Bank Card (J and I) were confiscated in accordance with Article 48(1)1 of the Criminal Act.
(b) Articles subject to confiscation under Article 48(1)1 of the Criminal Act shall be those provided or intended to be provided for a criminal act, and they shall not belong to the possession of a person other than the criminal.
Article 48(1) of the Criminal Act provides that “a person who commits a crime” includes an accomplice, so 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 commits the crime of aiding and abetting, but also the person who is in a necessary accomplice relationship (Supreme Court Decision 2006Do5586 Decided November 23, 2006).
In light of the above legal principles, the court below stated to the effect that the police investigation on July 24, 2019 stated that "P sent a certificate No. 1, which is the physical card of the account he/she uses, because it is necessary to contact with the BJ and obtain a loan of three million won," and that "M sent a certificate No. 1, which is the physical card of the account he/she uses," and that "B will receive a loan from the police investigation on July 24, 2019, and consulted by telephone." It is necessary to obtain a loan of three million won, and it will be returned later, and subparagraph 6, which is the physical card of the account he/she uses.