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Defendant
B All appeals against the Defendants by the Prosecutor and the Prosecutor are dismissed.
Reasons
Summary of Grounds for Appeal
A. Defendant B’s imprisonment (two years of imprisonment) is too unreasonable.
B. Prosecutor 1) The mobile phone apparatus (Evidence No. 1) confiscated by the Defendant A from the mistake of facts, and the mobile phone apparatus (Evidence No. 8 and 16, and hereinafter referred to as “instant mobile phone apparatus”) confiscated by the Defendant B.
(2) The lower court’s respective sentence of unfair sentencing (Defendant A: imprisonment with prison labor for two years and two years, Defendant B: imprisonment with prison labor for two years and two years) is too uneasible and unfair. However, the lower court’s failure to sentence confiscation, which affected the conclusion of the judgment by misunderstanding the facts.
2. Judgment on the prosecutor's assertion of mistake of facts
A. Since confiscation under Article 48(1)1 of the Criminal Act is discretionary, the issue of whether to confiscate even an article that meets the requirements for confiscation is left to the discretion of the court of first instance.
However, it is restricted by the principle of proportionality as applied to the general penalty.
In order to determine whether confiscation violates the principle of proportionality, all the circumstances should be taken into account, such as the degree and scope used in the commission of the crime and the importance of the crime; the role and degree of responsibility of the owner of the object in the commission of the crime; the degree of infringement of legal interests and interests caused by the commission of the crime; the motive of the commission of the crime; the profit from the crime; the separate possibility of the part related to the commission of the crime among the object, the substantial value of the object and the relation and balance with the crime; whether the object is not necessary for the actor; and if the object is not confiscated, whether the actor is likely to re-
(see, e.g., Supreme Court Decision 2012Do11586, May 23, 2013). B.
According to the evidence duly adopted and examined by the lower court, the instant mobile phone is the Defendants.