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The prosecutor's appeal is dismissed.
Reasons
Summary of Grounds for Appeal
A. Since articles that do not belong to a person other than the criminal, a sentence of confiscation should also be imposed on each of the above articles, since 5 to 17 are articles that do not belong to the person other than the criminal.
B. The sentence imposed by the lower court (one year of imprisonment, two years of suspended execution, 120 hours of community service order, and confiscation) is too uneasible and unreasonable.
2. Determination
A. Since the “offender” under Article 48(1) of the Criminal Act regarding the assertion of mistake of facts regarding the part of confiscation includes an accomplice, not only the property owned by the defendant but also the property owned by the accomplice may be confiscated regardless of whether the accomplice is prosecuted by the accomplice. Here, the accomplice includes not only the person who constitutes the co-principal, the crime of aiding and abetting, but also the person who is in a necessary co-offender.
Article 48(1) of the Criminal Act does not necessarily mean that an accomplice who falls under the “offender” is limited to a person who is liable for a crime of guilt, and is sufficient if the accomplice committed an act that constitutes an accomplice. As such, the ownership of such an accomplice is “goods not belonging to a person other than the criminal” under Article 48(1) of the Criminal Act, and may be confiscated from the defendant (see Supreme Court Decision 2006Do5586, Nov. 23, 2006), confiscation, and additional collection, or recognition of additional collection does not require strict certification.
(See Supreme Court Decision 91Do346 delivered on June 22, 1993. According to the records of this case, the fact that the evidence Nos. 5 through 13 (each physical card) was collected and kept by the defendant as stated in the attached Table Nos. 1 through 9 is acknowledged, but the evidence submitted by the prosecutor alone does not belong to the defendant's co-offenders or by the holder of each physical card waives his ownership of each of the above physical cards, and thus, the evidence Nos. 5 through 13 falls under the ownership of a person other than the criminal under Article 48 (1) of the Criminal Act.