전자금융거래법위반등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for a term of one year and two months.
Seized evidence shall be confiscated as referred to in Articles 9 through 11.
1. Summary of grounds for appeal;
A. The sentence imposed by the lower court (one year and two months of imprisonment, and confiscation) is too unreasonable.
B. The sentence imposed by the prosecutor by the court below is too uneasible and unreasonable.
2. The lower court rendered ex officio determination as to whether seized evidence Nos. 1 through 7 should be confiscated in accordance with Article 48(1)1 of the Criminal Act on the seized DNA and six physical cards (Evidence Nos. 1 through 7).
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 “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 principal offender, the principal offender, and the person who is in a requisite accomplice relationship as well as the person who is in a requisite accomplice (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, in case of the physical card in the name of D and six persons, the above physical card titleholder transferred or renounced the ownership of
In addition, there is no other evidence to acknowledge that the above nominal persons are co-offenders in violation of the Electronic Financial Transactions Act.
Therefore, as long as there is no evidence that each of the above physical cards satisfied the requirements for confiscation, the court below erred by misapprehending the facts or by misapprehending the legal principles on the confiscated portion of subparagraphs 1 through 7 of the judgment below, which affected the conclusion of the judgment.
3. The judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the grounds for ex officio reversal, and the judgment below is reversed and it is again decided as follows.
【Discretionary Judgment】 Summary of Criminal facts and Evidence