In a case where several persons jointly commit a crime under Article 90 (2) of the Attorney-at-Law Act and distribute money and valuables received, the scope of confiscation or collection (=the money and valuables received by actual distribution or the value thereof)

The necessary confiscation or collection pursuant to the provisions of Article 94 of the Attorney-at-Law Act is aimed at preventing a person who violates the provisions of Article 27 of the same Act, or committed an offense under subparagraph 1 or 2 of Article 90 or Article 92 of the same Act, or a third party who is aware of such fact, from holding unjust profits by depriving him of his money, goods, or other benefits received by him. Thus, in case where several persons jointly commit an offense under subparagraph 2 of Article 90 of the same Act and distribute the money and valuables received, only the money and valuables actually distributed shall be individually confiscated or collected additionally.

Subparagraph 1 and 2 of Article 90, Article 92, and Article 94 of the Attorney-at-Law Act

Supreme Court Decision 82Do1310 Decided July 27, 1982 (Gong1982, 894) Supreme Court Decision 93Do1569 Decided December 28, 1993 (Gong1994Sang, 584) Supreme Court Decision 93Do3064 Decided February 25, 1994 (Gong1994Sang, 1143), Supreme Court Decision 96Do2490 Decided November 29, 196 (Gong197Sang, 269)

Defendant

Defendant

Jeonju District Court Decision 98No1085 delivered on November 20, 1998

Of the judgment of the court below and the judgment of the court of first instance, the part concerning additional collection is reversed. The amount of KRW 4,236,000 shall be collected from the defendant. The remaining appeals by the defendant are dismissed.

The grounds of appeal are examined.

1. On the issue of unfair sentencing with respect to imprisonment

The assertion that the lower court’s punishment, which maintained the first instance judgment that was sentenced to a suspended sentence for two years in October, is too heavy, cannot serve as a legitimate ground for appeal.

2. As to the illegality of collection

The purpose of necessary confiscation or collection under Article 94 of the Attorney-at-Law Act is to prevent a person who violates the provisions of Article 27 of the same Act or committed an offense under subparagraph 1 or 2 of Article 90 of the same Act or a third party who is aware of such fact from holding unjust profits by depriving him of his money, goods, or other benefits received by him. Thus, in case where several persons jointly commit an offense under subparagraph 2 of Article 90 of the same Act and distribute the money and valuables received, each person shall individually confiscate only the money and valuables actually received or additionally collect the value thereof (see, e.g., Supreme Court Decisions 96Do2490, Nov. 29, 1996; 93Do1569, Dec. 28, 1993).

According to the records, the defendant's total amount of KRW 10,590,000 delivered to the victims of traffic accidents, such as the mobile wharf, etc., in collusion with the non-indicted 1 and the insurance company, can be known that the defendant distributed the above non-indicted 1 and the defendant at the ratio of KRW 6:4. Thus, the amount to be collected from the defendant in this case shall be KRW 4,236,00 (10,590,000 x 0.4).

Nevertheless, the court below dismissed the defendant's appeal against the judgment of the court of first instance which collected a sum of KRW 10,590,000 from the defendant. Thus, the court below erred by misapprehending the legal principles as to additional collection under Article 94 of the Attorney-at-Law Act, and it is obvious that such illegality affected the judgment. Thus, the defendant's ground of appeal pointing this out has merit, and the part concerning additional collection among the judgment of the court below is not reversed.

3. However, according to the records, since the court below's judgment and the first instance's judgment are deemed sufficient to be judged directly by the members of the case are reversed pursuant to Articles 391 and 396 (1) of the Criminal Procedure Act, and the defendant's total amount of KRW 10,590,000 consumed by the defendant among the total amount of KRW 10,590,000 delivered by the vehicle accident victims and the insurance company while dealing with the settlement work between the traffic accident victims and the insurance company, the amount equivalent to the amount of KRW 4,236,00 consumed by the defendant shall be additionally collected from the defendant by applying Article 94 of the Attorney-at-Law Act.

Justices Cho Chang-hoon (Presiding Justice)