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The judgment below
Among them, the part of additional collection against the defendant shall be reversed.
The remaining appeal by the defendant is dismissed.
Reasons
1. Summary of grounds for appeal;
A. The lower court erred by misapprehending the legal doctrine on additional collection, thereby ordering the Defendant to additionally collect KRW 290 million, even though the Defendant did not specify the Defendant’s profit from the instant crime.
B. The punishment sentenced by the lower court (one year of imprisonment (two years of suspended execution) and one year of observation of protection, and two hundred hours of community service) is too unreasonable.
2. Judgment on the misapprehension of legal principles
A. Whether the relevant legal doctrine is subject to forfeiture or collection, or the recognition of the amount of collection, etc. is not related to the facts constituting a crime, and thus, it is not necessary to prove strict facts, but also necessary to be recognized by evidence. However, if it is impossible to specify the criminal proceeds subject to forfeiture or collection, it cannot be collected additionally.
Meanwhile, since the purpose of collecting profits arising from a criminal act violating Article 44(1) of the Game Industry Promotion Act (hereinafter “Game Industry Promotion Act”) is to deprive customers of unlawful profits and prevent them from holding such profits, where several persons jointly obtain profits from the business of illegal games, only the amount of money distributed, i.e., the profit actually accrued, shall be collected, and the defendant who has no actual profits may not be collected as a penalty (Supreme Court Decision 2014Do4708 Decided July 10, 2014). (b) The lower court determined that the Defendant conspired with the Defendants on January 1, 2016 to August 11, 201, by recognizing the fact that the Defendant acquired profits from the game of 100 won from the game of 2, Gyeyang-gu, Incheon (hereinafter “the game of this case”) to the customers through the use of the game of this case as an average of 100 won and 500 days from the date of the exchange of profits from the game of this case for 300 days.