The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

The seized transportation card (No. 2) shall be confiscated.

1. Summary of grounds for appeal;

A. The mobile phone machines (No. 1; hereinafter “the instant mobile phone machines”) and transportation cards (No. 2; hereinafter “the instant transportation cards”) that have been wrongfully confiscated have been used as an essential tool for the instant crime. Unless they are confiscated, the instant mobile phone machines and transportation cards are likely to be used for another crime. Therefore, the instant mobile phone machines and transportation cards should be confiscated.

Nevertheless, the lower court erred by misapprehending the fact and adversely affecting the conclusion of the judgment, as it did not sentence confiscation.

B. The lower court’s sentence of unreasonable sentencing (two years of imprisonment) is too unhued and unreasonable.

2. Judgment on the 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 court below, the judgment of the court below as to the confiscation of the cellular phone (Evidence No. 1) of this case.