The appeal by the prosecutor is dismissed.

Summary of Grounds for Appeal

The court below erred by misapprehending the legal principles on the collection of penalty, thereby adversely affecting the conclusion of the judgment, even though the defendant acquired a total of KRW 2,50 million per day (=2.5 million x 96 days) property benefit from the racing conducted by Morse Society through the Internet private horse racing site over a total of 96 days per week from April 2012 to September 22, 2012, which affected the conclusion of the judgment by misapprehending the legal principles on the collection of penalty.

The sentence of unfair sentencing (one year of imprisonment, two years of suspended execution) by the court below is too uneasible.

Judgment

Article 56 of the Korean Racing Association Act provides that the confiscation and collection of property and property gains from similar horse racing shall be necessary.

In light of the purpose of Article 48 of the Criminal Act concerning property resulting from gambling under Article 246(1) of the Criminal Act, Article 246(2) of the Criminal Act, or Article 2 subparag. 1 [Attachment Table] of Article 2 subparag. 1(f), Articles 8 and 10 of the Act on Regulation and Punishment of Punishment of Criminal Proceeds Concealment concerning property resulting from gambling under Article 246(1) of the Criminal Act, or gambling under Article 246(2) of the Criminal Act, and Article 2 subparag. 1(f) of the Act on Regulation and Punishment of Criminal Proceeds Concealment of Gains from Crimes of Gambling, it is reasonable to

(see, e.g., Supreme Court Decision 2007Do2451, Jun. 14, 2007). Accordingly, after a similar horse race track operator granted dividends or refunds to a horse race track operator, only the balance obtained by deducting the dividend refund from the total sum of the total prices for similar horse race tracks, shall be subject to forfeiture and collection with property or property gains arising from a similar horse race track.

According to the evidence duly adopted and examined by the court below, the defendant stated that the daily average betting amount of the horse race track participants is approximately KRW 2.5 million during the period of operating the horse race track at the prosecution stage.