In cases where it is impossible to specify criminal proceeds subject to additional collection under the Act on Regulation and Punishment of Criminal Proceeds Concealment (negative) and whether the above additional collection belongs to the court’s discretion (affirmative)

Whether or not collection is subject to strict certification is not necessary, but if it is impossible to specify criminal proceeds subject to collection, it can not be collected, and since the collection under Article 10 of the Act on Regulation and Punishment of Criminal Proceeds Concealment is voluntary, it is left to the court's discretion.

Article 247 of the Criminal Act, Article 2 subparag. 1 [Attachment] of the Act on Regulation and Punishment of Criminal Proceeds Concealment, Articles 8 and 10 of the same Act

Defendant

Prosecutor

Daegu District Court Decision 2006No3909 Decided March 16, 2007

The appeal is dismissed.

Property arising from the gambling opening of Article 247 of the Criminal Code shall be subject to the collection of penalty pursuant to subparagraph 1 of Article 2 of the Act on Regulation and Punishment of Criminal Proceeds Concealment (hereinafter referred to as the "Act"), Article 8 and Article 10 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, the purpose of the collection of penalty is to deprive illegal gains and prevent them from holding them. On the other hand, whether it is subject to the collection of penalty shall not require strict certification, but where it is impossible to specify criminal proceeds subject to the collection, it shall not be collected, and since the collection of penalty under Article 10 of the Act is voluntary, it shall be determined whether it should be collected even if it meets the requirements for the collection of penalty.

After compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning. The defendant stated in an investigative agency that he acquired profit equivalent to about KRW 160 million with the non-indicted and co-defendant of the first instance trial, and the co-defendant of the first instance court stated that he acquired profit equivalent to KRW 23 million, but there is insufficient evidence to recognize that the defendant acquired profit equivalent to KRW 160 million due to the crime of this case, unlike the statement by the defendant et al., the court below reversed the judgment of the first instance which sentenced the collection and did not sentence the collection.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just and acceptable, and there is no violation of the rules of evidence or misapprehension of the legal principles as to additional collection.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)