A defendant shall be punished by imprisonment for not more than ten months.

Provided, That the above punishment shall be imposed for two years from the date this judgment became final and conclusive.

A. The judgment of the court below that did not additionally collect the profits that the defendant acquired as a business of the instant speculative act from the public prosecutor (unfair form of punishment) is too unhued and unfair.

나. 피고인 1) 사실오인 피고인이 무료이용권을 발행한 것은 환전이나 유통을 전제로 한 것이 아니고, 등급분류 받은 내용과 다르게 게임기에 예시기능을 추가하지 않았으며, ‘똑딱이’는 게임 이용자의 편의를 위해 비치한 것일 뿐이므로 사행행위 영업을 하였다고 볼 수 없다. 이 사건 공소사실을 유죄로 인정한 원심 판결에는 사실을 오인한 위법이 있다. 2) 양형부당 원심이 선고한 형(징역 10월, 집행유예 2년, 몰수, 사회봉사 120시간)은 너무 무거워서 부당하다.

2. Determination

A. The lower court, subject to Article 48(1)1 of the Criminal Act, forfeited the evidence Nos. 1 through 13 of the Daegu District Prosecutors’ Office, which was seized by applying Article 48(1)1 of the Criminal Act, respectively.

However, in order to apply Article 48 (1) 1 of the Criminal Act, it shall not belong to the ownership of a person other than the criminal, or it shall be an object which was provided or intended to be provided by a person other than the criminal with knowledge of the fact after the crime. There is no evidence to deem that CCTV main body (No. 12) and CCTV monitoring (No. 13) among the above seized objects are not owned by a person other than the criminal, or they are knowingly acquired by a person other than

(M) In other words, the Defendant appears to have owned the expense of the instant entertainment room. Nevertheless, the lower court’s judgment was no longer maintained as it confiscated all of them.

However, the defendant's assertion of misunderstanding of facts is still subject to the judgment of this court, despite the above reasons for reversal of facts, and this is examined below.

B. The lower court duly adopted and investigated the Defendant’s assertion of mistake of facts.