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The judgment of the court below is reversed.
Defendant
A's imprisonment of 4 years and 2 months, and the facts charged in the case of 2020 Godan121 decided on the defendant B.
Reasons
1. The summary of the grounds for appeal is that the punishment of the court below (the punishment of imprisonment with prison labor of 4 years and 6 months, additional collection, and Defendant B: the punishment of 1 year and 6 months, and the punishment of 200 high-class 121 and 202 high-class 1062) is too unreasonable.
2. Ex officio determination of the portion additionally collected;
A. An ex officio collection is a kind of punishment, and the court may ex officio determine the validity of its application (see, e.g., Supreme Court Decisions 2006Do8663, Jan. 25, 2007; 98Do4313, Mar. 9, 199). We examine the legality of the collection ordered by the court below.
B. Based on Articles 10(1) and 8(1) of the Act on Regulation and Punishment of Criminal Proceeds Concealment (hereinafter “Regulation of Criminal Proceeds Concealment”), the lower court additionally collected KRW 75 million from Defendant A (i.e., the minimum amount of profit recognized by Defendant A as the profit accrued from the Defendant’s participation in the crime of Bosing from August 18, 2015 to June 1, 2017), and KRW 20 million from Defendant B (=the minimum amount recognized by Defendant B as the profit accrued from his participation in the crime of Bosing from August 18, 2015 to June 1, 2017).
C. 1) Whether to additionally collect criminal proceeds on the period in which the crime of joining and running a criminal organization and the crime of fraud is charged (from August 18, 2015 to July 20, 2016; from August 18, 2015 to October 28, 2015; in the case of Defendant B, from August 18, 2015 to October 28, 2015) under Article 2 Subparag. 1 and [Attachment] of the Act on the Regulation of Criminal Proceeds Concealment, the crime under Article 114 of the Criminal Act constitutes a serious crime under the Act on the Regulation of Criminal Proceeds Concealment; and if it is impossible to confiscate property generated by a criminal act corresponding to a serious crime or criminal proceeds, which are property acquired as remuneration for such criminal act, the equivalent amount may be collected from the criminal.
B. Article 8(3) of the Regulation of Criminal Proceeds Concealment Act.