사기등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for a term of one year and ten months.
1. The main point of the grounds for appeal is that the court below's punishment (two years of imprisonment and confiscation) is too unreasonable;
2. The proviso of Article 49 of the Criminal Act provides that even if a judgment of conviction is not rendered against an accused, if the requisites for confiscation exist, the confiscation may be ordered. However, since there is no system that allows a separate sentence without institution of a public prosecution under our legislation, the requisites for confiscation should be related to the facts charged for which a public prosecution has been instituted, and it is not permitted for a court to recognize separate facts constituting an offense against which no public prosecution has been instituted and pronounces confiscation thereof as a matter of course.
(see, e.g., Supreme Court Decision 92Do700, Jul. 28, 1992). The lower court sentenced the Defendant to confiscate four copies of the statement of transactions confiscated (No. 7 through 10 of the year No. 437 of pressure in the District Prosecutors’ Office, No. 437 of the Military Prosecutors’ Office, No. 7 and No. 11 of the year), and one chemical knife (the above No. 11 of the year) from the Defendant. According to the records, the above statement of transactions confiscated by the lower court is not the goods acquired by the Defendant in relation to the instant fraud, but is related to a separate fraud committed after the Defendant committed, and the above knife knife was used directly for the instant fraud between March 26, 2012 and December 10, 2013.
It is difficult to readily conclude that the Defendant is an object related to or closely related to the act, and there is only the fact that the Defendant made a statement from the police that “(C) would have a knick knife among the seized articles voluntarily submitted (as of March 8, 2014, and why he was in possession)” that “(C) would have been subject to the head of the Tong, card, etc., he must confirm the contents thereof, and at that time he had to remove it easily.”
(Evidence No. 143 pages). The judgment of the court below which sentenced forfeiture of the above transaction statements and knife knife shall be confiscated.