Where an entertainment room business operator, merchandise coupon business operator, or an operator of a money exchange in collusion with a person operating a money exchange for free merchandise coupon discharged from a speculative electronic machine in a manner that allows the commission to be divided in a certain ratio, the case holding that the whole cash stored in the money exchange center shall be subject to confiscation.

The case holding that, in case where a person operating a money exchange in collusion with a entertainment room business operator, merchandise coupon business operator, and a money exchange operator in cash and operated a merchandise coupon in a manner of dividing fees in a certain ratio, the whole cash stored in the money exchange operator in the money exchange is subject to confiscation in accordance with Article 48 (1) 1 or 2 of the Criminal Act because the whole cash stored in the money exchange operator intended to provide a criminal act through the money exchange of merchandise coupons or acquired by the crime, and it is not different because the operator of the money exchange consumed part of cash stored in the money exchange station for the purpose of living expenses, etc.

Article 48(1)1 and 2 of the Criminal Act

Supreme Court Decision 98Do4262 Delivered on December 21, 1999

Defendant

Prosecutor

Gwangju District Court Decision 2006No97 Decided April 26, 2006

The judgment of the court below is reversed and the case is remanded to the Gwangju District Court Panel Division.

We examine the grounds of appeal.

1. In full view of the adopted evidence, the court below found the defendant guilty of the facts charged in the case where the defendant conspireds with co-defendant 1 and non-indicted 1 who operates the electronic game machine entertainment room, Co-defendant 1 provided merchandise coupons to customers with free gifts while operating the amusement room, and the defendant operating the money exchange facility in cash after allowing them to exchange merchandise coupons to customers, and the defendant operating the money exchange the money in cash, and he did not provide only a specific criminal act of this case on the ground that the defendant, co-defendant 1, and non-indicted 13 do not intend to provide all of the criminal acts of this case on the ground that he did not provide any specific money of this case, such as the cash of this case in which the cash stored in the ordinary money exchange room was used for the personal purpose of the defendant in addition to the amount used for money for exchange or operating expenses for the money exchange or the money exchange operation expenses.

2. However, the lower court’s determination is difficult to accept.

According to the records, the defendant exchanged 5,00 won for the face value of 4,500 won per head of entertainment room with 4,500 won for each gift certificate business operator, and sold the right of cultural products so acquired to non-indicted 1, who is the gift certificate business operator, with 4,513 won for each gift certificate per head of 18,000 to 20,000 for each day. Thus, at least 80,000 won for each day was required for exchange of cash for 90,000 won, and according to the non-indicted 2's statement by the witness of the court below, the cash of this case is remaining after the defendant prepared to exchange the right of cultural products, and it is reasonable to view that the whole cash of this case is not subject to confiscation of Article 48 (1) 1 of the Criminal Act because it falls under the purpose of selling the goods of this case through exchange of the defendant's cultural products, or it is not subject to confiscation of Article 48 (2) 1 of the Criminal Act.

Nevertheless, the judgment of the court below which made a different judgment is erroneous by misunderstanding the legal principles on confiscation or by misunderstanding facts, which affected the conclusion of the judgment (see Supreme Court Decision 98Do4262 delivered on December 21, 199, etc.).

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)