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The judgment below
The penalty collection portion shall be reversed.
The remaining appeal by the defendant is dismissed.
Reasons
1. The decision of the court below on the gist of the reasons for appeal (the collection of 10,00,000 won by imprisonment) is too unreasonable.
2. Ex officio determination
A. Whether the subject matter of confiscation or collection is subject to strict certification or the amount of additional collection is not related to the elements of a crime, and therefore, it is not necessary to prove the subject matter of crime. However, if it is impossible to specify the subject matter of crime, it shall be acknowledged by evidence, and if it is not possible to specify the subject matter of crime, it shall not be collected (see Supreme Court Decision 2016Do18972, Apr. 7, 2017). Criminal facts in the judgment of the court below are exchanged for business of tangible and intangible results acquired through the use of game water by the defendant. In such cases, money exchanged to game users is not subject to additional collection (see Supreme Court Decision 2016Do1609, May 12, 2016).
B. The lower court collected KRW 10 million from the Defendant, but it is difficult to accept it as it is.
1) In full view of the statements made by the Defendant, B (joint Defendant of the lower court’s judgment employed by the Defendant), I, and J (user of each game), and the statements made by the investigative agency of the Defendant, B (user of each game), the following facts can be acknowledged.
(1) The Defendant paid cash to the head office and killed game money at a rate of 1:1, while receiving cash from a game user and charging game money at a rate of 1:1.
The Defendant received 8.5-9% of the total amount of the sales from the head office when a game user visits the Internet to play a game machine and play a game.
When the game users request money exchange, the defendant returned the game money to the head office and received cash from the head office, and exchanged the game money at the rate of 1:1.
(2) The Defendant traded with the head office through B’s account, and, on July 2016, transferred money from the said account to the account at the head office, around 16 times in total, KRW 10,90,000 (transaction records).