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The judgment below
The part of the forfeiture shall be reversed.
Seoul Western District Public Prosecutor's Office 2017 is seized by 1510.
Reasons
1. Summary of grounds for appeal;
A. The Defendant (unfair sentencing)’s sentence imposed by the lower court on the Defendant (a prison term of two years, 40 hours’ order to complete sexual assault treatment programs, confiscation) is too unreasonable.
B. Prosecutor 1) The lower court erred by misapprehending the legal doctrine that the lower court did not confiscate one cell phone (No. 3 seized evidence) provided for each of the instant crimes from the Defendant, and the Prosecutor stated the same as an unfair assertion of sentencing on the grounds of appeal, but deemed to be an assertion of misunderstanding the legal doctrine in light of its purport.
2) The above sentence committed by the lower court against the Defendant is too uneased and unfair.
2. Determination
A. One cell phone (Evidence No. 3) seized on the prosecutor’s assertion of misapprehension of the legal doctrine was owned by the defendant. Since the defendant committed the crime of violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes in this case by using the aforementioned cell phone, the aforementioned cell phone constitutes “goods provided to the criminal act” under Article 48(1)1 of the Criminal Act.
Since the confiscation under Article 48 of the Criminal Code is voluntary, the issue of whether to confiscate even an article that meets the requirements of the confiscation is left to the discretion of the competent court. However, it is restricted by the principle of proportionality applied to the general penalty.
In order to determine whether confiscation is in violation of the principle of proportionality, the extent and scope used in the commission of the crime and the importance of the crime; the role and degree of responsibility of the owner of the object in the commission of the crime; the degree of infringement of legal interests by the commission of the crime; the motive for the commission of the crime; the profit from the crime; the separate possibility of the part related to the commission of the crime among the object, the substantial value of the object and its balance with the crime; whether the object is essential to the offender; and if the object is not confiscated, the offender shall use the object to again commit the