보건범죄단속에관한특별조치법위반(부정식품제조등)등
The judgment below
I reverse the part of the forfeiture.
F.F.N. F.N.T. 11 sets (No. 14), OD sets.
1. The sentence imposed by the court below on the summary of the grounds for appeal (the imprisonment of two years, the suspended sentence of three years, the fine of 90 million won, etc.) is too unreasonable.
2. Determination
A. The lower court rendered ex officio determination on confiscation to the effect that the confiscation constituted “goods provided or intended to be provided to a criminal act” under Article 48(1)1 of the Criminal Act, which constitutes “those provided or intended to be provided to a criminal act” under Article 48(1)1 of the same Act.
Article 48(1)1 of the Criminal Act provides that “goods that have been, or are to be, provided for a criminal act” as objects that may be confiscated. In this context, “goods provided for a criminal act” refers to goods used for the criminal act or goods used for an act closely related to the act of committing a crime, and “goods that are to be provided for a criminal act” refers to goods that have been prepared to be used for a criminal act but have not been actually used.
In addition, in light of the fact that the confiscation under the Criminal Act is a sentence imposed in addition to another sentence in the conviction against the defendant who is under a criminal trial on the facts charged, it should be related to the crime in which the goods are guilty in order to confiscate as "goods provided or intended to be provided for criminal act" (see Supreme Court Decision 2007Do10034, Feb. 14, 2008). The summary of the facts charged in the instant case that the court below found the defendant guilty was selling various bits, such as OD (Emond), D.O. multilateral, P.M., P.M. and P.M.M. fatlelele, etc., where the defendant is found guilty.
“..” No. 17 of the above evidence is the fact-finding, and it cannot be confiscated from the Defendant, since it is not related to this.
Since the lower court erred by misapprehending the legal doctrine on confiscation, the part concerning confiscation in the lower judgment cannot be maintained any further.
B. The lower court’s judgment on the unfair argument of sentencing is unspecified for a considerable period of time.