국민체육진흥법위반(도박개장등)등
The judgment of the court below is reversed.
Defendant shall be punished by imprisonment for a term of one year and six months.
143,700,000 won shall be additionally collected from the defendant.
1. Summary of grounds for appeal;
A. misunderstanding of facts and misunderstanding of legal principles (Additional Collection) are employees employed by D, etc. and received monthly pay. As such, the Defendant’s payment of wages is merely a method of consuming the profits acquired by the instant crime and thus, it is not necessary to collect additional collection from D, etc., and it is not possible to collect additional collection from the Defendant.
B. Fact misunderstanding (violation of the Act on Regulation and Punishment of Concealment of Criminal Proceeds) Defendant did not conspired with D, etc. with regard to the disguised criminal proceeds.
However, the public relations team members, who are co-offenders, were sent to D, etc. only by delivering a passbook in the name of the defendant.
(c)
The sentence of the lower court (two years and four months of imprisonment and additional collection KRW 1447 million) against the illegal accused in sentencing is too unreasonable.
2. Determination
A. As to the assertion of misunderstanding the facts and misapprehension of the legal principles on collection, 1) Property acquired by a person subject to punishment pursuant to Article 47 subparag. 2 of the National Sports Promotion Act through similar acts is subject to necessary confiscation and collection pursuant to Article 51(1) and (3) of the National Sports Promotion Act, and where profits are gained by multiple persons through similar acts, the amount of money distributed, i.e., the profits actually accrued shall be collected separately (hereinafter “the first legal doctrine”). The Defendant is a person subject to punishment pursuant to Article 47 subparag. 2 of the National Sports Promotion Act, and the monthly salary that the Defendant received is the property acquired through similar acts.
In addition, as the defendant is in a relationship with D as a common principal offender, it is necessary to collect monthly pay, which is the profit accrued to it, from the case of obtaining profits by jointly similar acts.
On the other hand, as alleged by the defendant, “The cost disbursed by the offender to obtain the profit is merely a method of consuming the profit, even if it was disbursed from the profit gained by the criminal act, and thus, it is subject to deduction from the criminal proceeds to be collected additionally.