A defendant shall be punished by imprisonment for one year.

The forty-eight days of detention before the judgment of the court below shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

Seized evidence1 to 55 each shall be confiscated.

The defendant filed an appeal with the first place of appeal because the defendant is in profoundly against the defendant without a particular statement in the grounds for appeal. This seems to the purport that the sentence of the court below is unreasonable.

2. Determination

(1) Before determining the Defendant’s grounds for appeal, the court below’s decision is no longer maintained, since the prosecutor applied for permission to alter the indictment to delete the remittance portion for the act No. 761 as stated in the List of Offenses (1) among the facts charged in the instant case against the Defendant at the time of the trial of the court below, and as the subject of the instant trial was changed by notifying the party members of the decision to permit the act.

(2) On the other hand, the defendant's defense counsel asserts that the defendant's act of holding money in order to deposit money is a money seized while the defendant was kept in order to deposit money in so-called "reward account" as stated in the judgment of the court below. Since the crime of violation of Article 27 (1) 5 of the Foreign Exchange Control Act is not subject to punishment, it is not subject to punishment. Thus, the court below's judgment convicts the defendant of the act No. 761 of the above crime list (1) and sentenced 12 million won to confiscation.

On the other hand, the defendant's criminal act of this case is "foreign exchange business" without being registered with the Minister of Finance and Economy with certain facilities, and the defendant's act of receiving money from a remittance requester does not reach the above "foreign exchange business" as his defense counsel's assertion and thus excluded from punishment. The defendant's criminal act of this case constitutes "payment, collection and receipt between the Republic of Korea and a foreign country" under Article 3 (1) 14 of the Foreign Exchange Transactions Act. However, "other business similar to items (a) through (d)" under Article 5 subparagraph 3 of the Enforcement Decree of the same Act provides "business incidental to business under Article 3 (1) 14 (a) through (d) of the Foreign Exchange Transactions Act" and "business incidental to business under Article 3 (1) 14 (d) of the same Act" under Article 5 of the same Enforcement Decree of the same Act is reasonable to interpret "foreign exchange business" in this case as "any other business incidental to payment, collection and collection between the Republic of Korea and a foreign country" or "any other business incidental to the defendant's money deposited account of this case.

In addition, as long as such determination is made, it is reasonable to view that the amount of KRW 12 million listed in the attached Table (1) No. 761 of the Crimes List (1) as stated in the judgment of the court below is the "goods provided or intended to be provided" in a criminal act violating the Foreign Exchange Transactions Act by the defendant, and it is subject to confiscation pursuant to Article 48 (1) 1 of the Criminal Act. Furthermore, if the above money is not confiscated, it would result in the defendant who committed an unlawful act to have the defendant enjoy reflective profits, and it would be contrary to social justice, and thus, it is not necessary to confiscate it. However, in the confiscation of the above money, the court below applied the first sentence of Article 30 of the Foreign Exchange Transactions Act, which is not Article 48 (1) 1 of the Criminal Act. The "acquisition" under Article 30 of the Foreign Exchange Transactions Act means only the case acquired through the pertinent criminal act, and it does not mean the case of acquiring it temporarily after having been provided or delivered to another person for the foreign exchange business (see, e.g., Supreme Court Decision 97Do.

Therefore, the defendant's defense counsel is without merit.

(3) In conclusion, the judgment of the court below is reversed in accordance with Articles 364(2) and 364(6) of the Criminal Procedure Act for the reasons for ex officio reversal as seen earlier, and it is again decided after pleading.

1. Calculation of days of detention before sentencing: Article 57 of the Criminal Act;

1. Suspension of execution: Article 62 (1) of the Criminal Act (the first offender is the defendant; the defendant was involved in the crime passively in accordance with the specific instructions given by Non-Indicted 1, etc.; the motive of the participation is likely to be considered as the husband's treatment of a new illness and the maintenance of the livelihood of his family; the profits gained from the crime of this case are not large; and the alteration of the life is remarkable, etc.);

1. Confiscation: Article 48 (1) 1 of the Criminal Act;

Judges Lee Dong-dae (Presiding Judge)