국민체육진흥법위반(도박개장등)등
The judgment below
The part of the forfeiture shall be reversed.
No. 1 through 12, 14 through 17, 20, 41 through 51 of seized evidence.
1. Summary of grounds for appeal;
A. Cash (Nos. 30 through 40, hereinafter “instant seized articles”) confiscated by the lower court from the Defendant by mistake of facts is part of the amount of KRW 40 million, which the father of the Defendant donated, and is not subject to confiscation, since it was acquired regardless of each of the crimes listed in the instant facts charged.
B. The lower court’s sentence of unreasonable sentencing (one year and six months of imprisonment, confiscation, and collection KRW 1.7 million) is too unreasonable.
2. Determination
A. As to the assertion of mistake of facts, Article 48(1) of the Criminal Code provides that "goods provided or intended to be provided for an act of crime" in subparagraph 1 and subparagraph 2 of Article 48 provides "goods produced or acquired by an act of crime" respectively.
The term "goods provided for an act of crime" in subparagraph 1 means goods used for an act closely related to an act of crime or an act of crime, and the term "goods intended to be provided for an act of crime" means goods prepared to be used for an act of crime but not actually used.
In addition, "goods acquired through criminal conduct" referred to in subparagraph 2 means the goods that had been in existence at the time of criminal conduct and have been obtained through criminal conduct.
Meanwhile, the proviso of Article 49 of the Criminal Act provides that “If a judgment of conviction is not rendered against an accused, only confiscation may be ordered if the requirements for confiscation are met.” However, since there is no system under which confiscation can be sentenced separately without institution of public prosecution under our legislation, the requirements for confiscation should be related to the facts charged for which a public prosecution has been instituted, and it is permitted for a court to recognize separate facts constituting an offense against which a public prosecution has not been instituted and to sentence confiscation or collection thereof.