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The judgment below
The penalty collection portion shall be reversed.
269,347,132 won shall be additionally collected from the defendant.
The judgment below
(2).
Reasons
1. Summary of grounds for appeal;
A. Since the Defendant committed the instant crime jointly with his accomplice, the value of the profit actually earned by the Defendant should be collected separately.
Nevertheless, the lower court collected all criminal proceeds from the Defendant, and the lower court erred by misapprehending the legal doctrine on collection, thereby adversely affecting the conclusion of the judgment.
B. The lower court’s sentence (the first crime, the second crime and the third crime: imprisonment with prison labor for six months, the first-B crime, the second-B crime and the third crime: imprisonment with prison labor for one year and two months) against the Defendant is too unreasonable.
2. Confiscation and collection of criminal proceeds, etc. under Articles 8 through 10 of the Act on Regulation and Punishment of Criminal Proceeds Concealment is aimed at depriving of unlawful gains and preventing them from holding them. As such, where several persons jointly commit a crime engaging in speculative acts by using a speculative machine subject to confiscation and collection under the above Acts and subordinate statutes and gain profits therefrom, only the amount distributed to each person, i.e., the profit actually accrued shall be confiscated and collected individually.
(See Supreme Court Decision 2012Do1399 Decided January 10, 2013. According to the records of this case, the following can be acknowledged: (a) the Defendant conspiredd with F and G, etc. to sell malicious programs as stated in the judgment; (b) the Defendant’s mother was deposited a total of KRW 1,034,349,132 in the name of her mother; and (c) the accomplice was remitted KRW 765,002,00 out of the sales proceeds over 683 occasions.
Therefore, since the profit actually reverted to the defendant is KRW 269,347,132 (=1,034,349,132 - 765,002,000), it should be collected from the defendant.
Nevertheless, the court below did not collect only the profits actually accrued to the defendant individually and did all criminal proceeds against the defendant.