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All appeals by the defendant and the prosecutor are dismissed.
Reasons
Summary of Reasons for appeal
A. Prosecutor 1) The lower court’s failure to sentence the Defendant to the forfeiture of the evidence No. 4 (Detailed Statement of Transactions) is unlawful.
2) The lower court’s sentence (two years of imprisonment, additional collection of KRW 4.3 million) against an unfair defendant in sentencing is deemed unreasonable.
B. The lower court’s punishment is too unreasonable.
2. Determination
A. As the confiscation under Article 48 (1) 1 of the Criminal Act is voluntary as to the prosecutor's allegation of illegality of omission of collection, whether it is necessary to confiscate even an article that meets the requirements of confiscation shall be left at the discretion of the responding court. However, it shall be restricted by the principle of proportionality applicable to the general penalty.
In addition, in order to determine whether confiscation violates the principle of proportionality, various circumstances, 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 arising from the commission of the crime; motive for the commission of the crime; profit from the crime; separate possibility of the part related to the commission of the crime among the object; the substantial value of the object and its relation and balance with the crime; whether the object is essential to the offender; whether the object is not confiscated by using the object; and the risk and degree of the risk of the commission of the same crime again by using the object if the object is not confiscated (see, e.g., Supreme Court Decision 2012Do1586, May 23, 2013). According to the evidence duly adopted and examined by the court below, the defendant collected cash from the damaged employee under the direction of the National Bank’s ATM staff member; and thereafter, the object was transferred to the victim through the device of the National Bank.