[1] The standard period for calculating the value of collection (=the prior public notice of judgment)

[2] In a case where the value of money and valuables acquired through a crime of violation of the Attorney-at-Law Act is collected, whether the expenses incurred in the crime can be deducted (negative)

[1] In light of the purport of deprivation of benefit from crime, and the fact that additional collection is intended to accomplish the purpose of confiscation, the value to be collected when confiscation cannot be made refers to the amount equivalent to the benefit that the offender would have lost if he had been sentenced to confiscation. Thus, the value calculation should be based on the price of the prior public notice, barring any special circumstances.

[2] Where money and valuables are acquired through the crime of violation of the Attorney-at-Law Act, the expenses paid in the course of the crime are merely incidental expenses to acquire the money and valuables, and confiscation is itself the money and valuables acquired through the crime of violation of the Attorney-at-Law Act, so the money and valuables acquired shall not be deducted from the value of the money and valuables when calculating the amount to be collected.

[1] Article 48 (2) of the Criminal Code / [2] Article 116 of the Attorney-at-Law Act

[1] Supreme Court Decision 91Do352 delivered on May 28, 1991 (Gong1991, 1824), Supreme Court Decision 2006Do9314 Delivered on March 15, 2007 / [2] Supreme Court Decision 99Do1638 delivered on October 8, 199 (Gong199Ha, 2366), Supreme Court Decision 2003Do4293 Delivered on July 15, 2005 (Gong2005Ha, 1372), Supreme Court Decision 2007Do675 delivered on November 15, 2007

Defendant

Defendant

Attorney Park Gyeong-soo

Suwon District Court Decision 2008No652 decided July 11, 2008

The appeal is dismissed. 80 days out of detention days after the appeal shall be included in the original sentence.

Each ground for appeal by the defendant and public defender shall be examined together.

1. Examining the evidence adopted by the court of first instance maintained by the court below in light of the records, the court below's judgment to the same purport is just, and there is no violation of the rules of evidence, violation of the rules of evidence, lack of reasons, and misapprehension of the legal principles as to the statute of limitations, etc., as alleged in the grounds of appeal.

2. The purpose of confiscation is to deprive a person of the benefits from a crime, and additional collection is to accomplish the purpose of confiscation. In light of the fact that it is necessary to collect the benefits from the crime, the value to be collected when it cannot be confiscated refers to the amount equivalent to the benefits that the person would have lost if he had been sentenced to confiscation. Thus, the value calculation shall be based on the price of the prior public notice (see, e.g., Supreme Court Decisions 91Do352, May 28, 1991; 2006Do9314, Mar. 15, 2007; 2006Do9314, Mar. 15, 2007). Meanwhile, where money and valuables were acquired through a crime of violation of the Attorney-at-Law Act, even if the expenses were to be paid in the course of the crime, and since it is the money and valuables acquired through the crime of violation of the Attorney-at-Law Act that should be confiscated, the amount to be collected shall not be deducted from the above amount of money and valuables to be collected.

In the same purport, the court below is just in maintaining the judgment of the court of first instance ordering the defendant to collect the monetary amount as it is, and there is no violation of law by misapprehending the legal principles on the calculation basis time of additional collection and the calculation method of additional collection.

3. Therefore, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)