[습관성의약품관리법위반피고사건][고집1978형,221]
Whether the compensation for a criminal act is subject to the confiscation stipulated in the Criminal Act.
Since the objects to be confiscated under Article 48 (1) 3 of the Criminal Code are those acquired in return for the objects stipulated in subparagraphs 1 and 2 of the same paragraph, the objects acquired in return for criminal acts shall not be confiscated under the same Article.
Article 48 of the Criminal Act
A
Yeongdeungpo Branch Court of Seoul District Court (78 High Gohap99)
The judgment of the court below is reversed.
The defendant shall be punished by imprisonment for not less than three years and six months.
85 days of detention prior to the pronouncement of the judgment below shall be included in the above sentence.
The seized 423glass (No. 1) and the Korea Ginseng tea 26 boxes (No. 3) shall be confiscated.
The gist of the grounds for appeal by the defendant and his defense counsel is as follows: first, the defendant was fully used by B (Korean name C) after he had been fully aware of the fact that he included a paper mulberry in this case's ginseng tea; however, the court below acknowledged that the defendant conspired with B and committed this case in collusion, but the court below erred in the misapprehension of facts affecting the judgment, and second, the judgment of the court below is too unreasonable.
Therefore, the first point of appeal is examined as to the defendant and his defense counsel's first point, and if the evidence duly adopted by the court below after examining the evidence and the testimony of the witness of the trial court in light of the records, it is possible to acknowledge the criminal facts of the defendant's original case. Thus, the grounds for appeal on mistake of facts cannot be accepted. (According to the testimony of the above C, although the date, etc. of transferring the paper mulberry to the defendant is recognized as somewhat different from the judgment of the court below, this does not affect the judgment), prior to the judgment on the grounds for appeal of unfair sentencing, the court below ex officio prior to the judgment on the grounds for appeal of unfair sentencing. The court below confiscated 10,00N No. 2 (No. 2) obtained in consideration of the seized evidence, and confiscated it from the defendant pursuant to Article 43, Paragraph 1, 3 of the Criminal Act, but Article 43 of the Criminal Act does not stipulate the confiscation of goods acquired in consideration of the crime, but it can be viewed that the above provision of the law can be confiscated for the goods acquired in consideration of the above evidence.
Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the members are again decided as follows.
The gist of the facts constituting the offense of the defendant recognized as a party member and the gist of the evidence is as shown in each corresponding column of the judgment of the court below, except for addition of testimony consistent with the facts in the trial court of the witness C to the essential column of the evidence. Therefore, all of them are cited in accordance with Article 369 of the Criminal Procedure Act.
Under the law, the so-called judgment of the defendant falls under Articles 38 (1) 1 and 3 (1) of the damp Medicine Control Act, and the defendant selected a fixed limited term of imprisonment, and the defendant did not commit an attempted crime but failed to achieve the purpose of export. Thus, within the scope of the term of punishment for which discretionary mitigation has been made pursuant to Articles 53 and 55 (1) 3 of the Criminal Act, the defendant shall be punished by imprisonment for up to three years and six months, and 85 days of detention prior to the pronouncement of the judgment of the court below pursuant to Article 57 of the Criminal Act shall be included in the above sentence, and the seized paper paper paper paper paper paper paper 42 (1) of the Criminal Act is a damp drug provided for the above crime. Thus, pursuant to Article 42 (1) of the damp Drugs Control Act, the defendant's 26 boxes of ginseng ginseng from each of the above crimes shall be confiscated under Article 48 (1) 1 of the Criminal Act.
It is so decided as per Disposition for the above reasons.
Judges Park Ho-dong (Presiding Judge) Gyeong-won