The judgment below

The penalty collection portion shall be reversed.

84,272,00 won shall be additionally collected from the defendant.

The remainder of the defendant.

1. Summary of grounds for appeal;

A. Although the average daily earnings of the game of this case by misunderstanding facts and misapprehension of legal principles are limited to KRW 2 million, the court below deemed the average daily earnings of the game of this case as KRW 2.5 million and additionally collected KRW 106,772,000 against the defendant is unlawful.

B. As to the punishment of the judgment below which was unfair in sentencing (in 10 months of imprisonment, confiscation, and requisition), the defendant asserts that the prosecutor is too unfasible and unfair.

2. Determination

A. Determination of the lower court on the assertion of misunderstanding of the facts and misapprehension of the legal doctrine on the imposition of surcharge 1) The lower court determined that the Defendant collected the amount of KRW 112,50,000,00 per day from the game of this case by raising the profits of KRW 2.5 million per day during the business period of 45 days (i.e., KRW 2,50,000 x 45 days) from the Defendant, and that the amount was seized of KRW 5,728,00 at the time of enforcement (i.e., KRW 106,72,500,000 (= KRW 112,50,000), which is the remainder of the amount seized from the aggregate of the above profits (= KRW 5,728,00) from the Defendant.

2) The grounds for confiscation, such as whether a party is subject to confiscation, or the recognition of the amount of additional collection, are not related to the elements for the composition of a crime, and there is no need for strict proof, and it is also acknowledged by evidence (see, e.g., Supreme Court Decision 2005Do98, Apr. 7, 2006). In light of the above legal principles, considering the health class as to the instant case and the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, it is reasonable to deem the average daily revenue of the game of this case as KRW 2 million. Thus, the criminal proceeds acquired by the Defendant from the operation of the game of this case are KRW 90 million (= KRW 2,00,000 x 45 days). Accordingly, the amount of additional collection against the Defendant is KRW 84,272,000 (=90,000,000 - KRW 5,728,000).

Therefore, the judgment of the court below that calculated the amount of the average daily revenue of the game of this case as 2.5 million won and the amount of the additional collection against the defendant is erroneous and erroneous.