A. The purpose of the proviso of Article 56 of the Korean Marina Act is to deprive the defendant of unjust enrichment and prevent him from retaining it. Thus, if the defendant actually gains profit, he shall be subject to additional collection only, and if it is impossible to specify the criminal proceeds subject to additional collection, he shall not be subject to additional collection. The judgment of the court below which calculated the amount of additional collection on the basis of the defendant's statement that average profit amounted to KRW 10,800 per month, thereby affecting the conclusion of the judgment by misunderstanding the legal principles as to additional collection charges.

B. The lower court’s sentence (one year and three months of imprisonment, confiscation, and collection) against an unfair defendant in sentencing is too unreasonable.

2. Judgment on the misapprehension of legal principles

A. Whether the relevant legal principles are subject to forfeiture, or the grounds for forfeiture, such as recognition of the amount of additional collection, are not related to the elements of crime, and it is not necessary to prove it strictly, but also requires evidence (see Supreme Court Decision 2005Do988, Apr. 7, 2006, etc.). Meanwhile, in Article 56 (Confiscation and Additional Collection) of the Marina Society Act of Korea, the property under Article 50 (1) 1 through 3 and 6, and subparagraphs 1 through 3 and 8 of Article 51 shall be confiscated.

Provided, That when it is impossible to confiscate property or it has acquired financial benefits, the value thereof shall be collected additionally.

Article 2 Subparag. 1 of the Act on the Regulation and Punishment of Concealment of Criminal Proceeds provides that a necessary penalty shall be imposed on the property and property gains acquired through similar horse racing or gambling, and Article 2 Subparag. 22 of the same Act provides that a crime, such as Articles 50 and 51 of the Marina Society Act, shall be a serious crime, and thereby provides for the confiscation and collection of “criminal proceeds, etc.” (Articles 8 and 10). Such confiscation aims to deprive a person of unlawful gains and prevent him/her from holding it (see Supreme Court Decision 8, Jun. 14, 2007).