Defendant 1 and two others

Defendants and Prosecutor

Newcompetence (prosecution), Kukkiwon (Court of Second Instance),

Law Firm Dong-in et al., Counsel for the defendant

Defendant 3

Law Firm LLC, Attorneys Lee In-bok et al.

Seoul Central District Court Decision 2016Da4625, 4742 decided December 13, 2016

The judgment of the court below is reversed.

Defendant 1 is punished by imprisonment with prison labor for a period of four years and six months, by imprisonment for a period of one year and six months, and by imprisonment for a period of three years and by imprisonment for a period of six years.

Seoul Central District Prosecutors' Office 2016Mo3752, the evidence 384 through 390, 406 through 414, 468, 474, 476, 480 through 485, and 986 of the Seoul Central District Prosecutors' Office 2016Mo3752, the evidence 931, 945, 954, and 987, which was seized, shall be confiscated from Defendant 3, respectively.

Samsung Electronic HD TV (110 persons, UN 110S9AF) and the Home Czeer sets connected to the said TV in Goyang-si ( Address 1 omitted) shall be confiscated from Defendant 3.

Defendant 1’s KRW 16,074,170,509, KRW 146,00,000 from Defendant 2, and KRW 11,020,335,830 from Defendant 3 shall be collected respectively.

The prosecutor's appeal against the acquittal portion of the judgment below shall be dismissed.

Defendant 3’s request for adjudication on constitutionality of law is dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

1) misunderstanding of facts and misapprehension of legal principles

A) Considering the following circumstances, the court below erred by misapprehending the facts or by misapprehending the legal principles, which found the additional collection amounting to KRW 52 billion against Defendant 1.

(1) The amount of additional collection recognized by the court below against Defendant 1 is merely obtained from the total amount of crime to deduct the amount of the remaining co-defendants from the amount of crime, and there is a logical lack in its recognition method.

(2) Not only falls under the profits of co-defendants who are overlapping or not yet entered into with the profits of other co-defendants, but also lack of evidence to prove it, except Defendant 1’s deadly inferred statement, and thus, Defendant 1’s criminal proceeds cannot be identified.

B) The crime of violation of the National Sports Promotion Act (Gambling, etc.) and the establishment of gambling spaces constitute a single comprehensive crime as a business principal, and even though a single act constitutes an ordinary concurrent relation corresponding to several crimes, the lower court determined each of the above crimes as a substantive concurrent relation, and erred by misapprehending the legal doctrine as to the relation of acceptance of crimes.

C) The lower court did not take any measures for specifying the facts charged while submitting a CD, which is part of the facts charged, thereby misapprehending the legal doctrine on the specification of the facts charged.

D) The lower court did not provide any reasonable and reasonable grounds while sentencing a sentence exceeding the maximum sentencing guidelines according to the Supreme Court’s sentencing guidelines, and omitted the evidence submission of Defendant 1’s criminal facts.

2) Unreasonable sentencing

The punishment sentenced by the court below to Defendant 1 (limited to imprisonment of four years and six months, confiscation, additional collection of KRW 52,237,570,510) is too unreasonable.

B. Defendant 2

1) misunderstanding of facts and misapprehension of legal principles

A) The Defendants’ act constitutes an act of promoting similar acts rather than an act prohibited under Article 26(1) of the National Sports Promotion Act, or an act of mediating or arranging the purchase of sports betting tickets or similar things constitutes Article 26(2)3 of the same Act.

B) The Defendants’ act is merely an act of acting as a broker or an intermediary on a website such as (name 1 omitted) and (name 2 omitted), rather than an act of acting as a gambling resident and providing cyber space for gambling on the Internet under his control. As such, the Defendants’ act cannot be acknowledged the suspicion of opening a gambling space under Article 247 of the Criminal Act.

C) The lower court did not specify the summary of the evidence regarding Defendant 2’s criminal facts.

D) Although the prosecutor submitted a list of crimes, which is part of the indictment, to a storage medium, not in writing, the court below decided without exercising the right to request the presentation of materials. The court below erred by misapprehending the legal principles as to the method of institution of prosecution and the specification of the facts charged.

2) Unreasonable sentencing

The punishment sentenced by the court below to Defendant 2 (one year and six months of imprisonment, additional collection of KRW 146,00,000) is too unreasonable.

C. Defendant 3

1) misunderstanding of facts and misapprehension of legal principles

A) Defendant 3 did not engage in the “issuance of sports betting tickets or any similar things” or providing property or financial benefits to a person who correctly predicted the result through a site (hereinafter “instant relay site”) that connects 16 overseas betting sites, including “△△△△△△.com” and “○○○○○○” (hereinafter “instant relay site”). Accordingly, Defendant 3 is liable for violation of Article 26(2)3 of the National Sports Promotion Act, not Article 26(1) of the same Act, but Article 26(2) of the same Act.

B) Article 26(1) of the National Sports Promotion Act provides that the elements of a crime are abstract and ambiguous concepts, and the scope of application is too broad and comprehensive, and thus, is unclear. Therefore, the State’s act prohibited by law is unconstitutional as it goes against the principle of clarity, which is the content of the principle of no punishment without law (related to the request for adjudication on the unconstitutionality of statutes at the beginning of 2017,2047).

In addition, in relation to the provision on “issuance of sports promotion betting tickets or similar things” under Article 26(1) of the National Sports Promotion Act, if there is no mechanism that issues similar things to the above voting rights on (name 1 omitted) and (name 2 omitted), it is not permissible to punish a person by applying the same without any mechanism, which is derived from the derived principle of no punishment without law, as it violates the principle of no analogical interpretation, which is the derived principle of no punishment without law (in relation to the request for adjudication on the

C) Defendant 3 is not in the position of a resident with respect to the installation and operation of a gambling place (name 2 omitted), (name 1 omitted), etc. Therefore, there is no room for establishment of the crime of opening a gambling space under Article 247 of the Criminal Act. Even if the crime of opening a gambling space is established, Defendant 3’s creation of the instant transit site is prior to April 5, 2013, and thus, Article 247 of the former Criminal Act prior to the amendment on April 5, 2013 ought to be applied.

D) Of the facts charged against Defendant 3, the lower court recognized the establishment of gambling space and the violation of the National Sports Promotion Act (Gambling opening, etc.) as substantive concurrent crimes. However, since the above two crimes are mutually concurrent crimes, the lower court erred by misapprehending the legal doctrine on the number of crimes.

E) Of the facts charged against Defendant 3, the part relating to habitual gambling is written as follows: (a) the time and termination period of the crime; and (b) the proceeds of the crime are generally written as follows; and (c) the method of the crime or the frequency of the entire crime; and (d) the amount of money in the board; and (b) the facts charged are not written as to the method of the crime or the amount of money in the crime. Even if considering the characteristics of the comprehensive crime assessed as a single crime through the intermediary of habitual nature, the facts charged are not entirely specified as constituting a serious obstacle to the Defendant’s defense right to be acquitted of the crime.

F) The prosecutor replaced all of the above contents with CDs on the grounds that the Defendants’ account used for the crime, total gambling funds, funds exchanged to members, and profits of the Defendants among the facts charged in the crime of violation of the National Sports Promotion Act (Gambling, etc.) and the crime of gambling opening. Therefore, the judgment dismissing prosecution should be pronounced inasmuch as the method of instituting prosecution against the above crime is in violation of the law.

G) Article 48 Subparag. 1 of the National Sports Promotion Act, which is a provision punishing a person committing gambling by using similar acts prohibited by Article 26(1) of the same Act, was newly established and implemented on February 17, 2012. Therefore, prior to February 17, 2012, the act prior to the National Sports Promotion Act is not punishable as a violation of the National Sports Promotion Act (gambling, etc.).

H) The evidence as to the fact that Defendant 3 obtained approximately KRW 500 million criminal proceeds does not exist except for Defendant 3’s statement.

I) As to the violation of the Use and Protection of Credit Information Act, ① Defendant 3 requested Nonindicted 2, who had already operated an unauthorized credit information company, to investigate the private life, etc. of Nonindicted 3, and did not have the Nonindicted 2 decided to commit the crime of having him/her investigate the private life, etc. as “business.” ② Defendant 2 had already been illegal but is engaged in the investigation of a specific person’s private life, etc., and the Defendant cannot be deemed to have commenced business activities, such as private life investigation only by his/her commission to Nonindicted 2. Thus, Defendant 3 cannot be established as a teacher of violation of the Use and Protection of Credit Information Act.

2) Unreasonable sentencing

The punishment sentenced by the court below to Defendant 3 (limited to six years of imprisonment, confiscation, additional collection 316,135,830 won) is too unreasonable.

D. Public Prosecutor (Defendant 3)

(1) misunderstanding of facts

Considering the following circumstances, the lower court found Defendant 3 not guilty of the facts charged regarding the violation of the National Sports Promotion Act (gambling, etc.) from February 2012 to September 2012, which found Defendant 3 guilty of the facts charged, even though it was determined that Defendant 3 transited the Internet sports gambling from February 2012.

A) It is true that Defendant 3 and related persons stated to the effect that, while operating the instant broadcast site in the Philippines, they would seem to have shown from September 2012, in the various sports games provided in (name 1 omitted) etc.

B) However, relevant persons are not aware of the exact operational details, but are not aware of the exact operational details. However, around September 2012, the Defendant made a statement on the ground that he or she met relevant persons, such as (site name 1 omitted) in the Philippines.

C) Although the accurate details are known to Defendant 3 and Nonindicted 1 (the Nonindicted Party) who is the main offender, Defendant 3 denies the crime before September 2012, and Nonindicted 1’s accomplice 1 is under the escape abroad, it is difficult to secure the statement at present.

D) However, according to the account details, since around February 2012, the entry and withdrawal of the same details as the time of the operation of the instant broadcast site continued to be repeated, Defendant 3 was deemed to have relayed the Internet sports gambling, such as the instant crime, from February 2012.

E) At the time of Defendant 3’s operation of the instant transit site, the bank account in the name of Nonindicted 4, which was first used, was opened on February 16, 2012, and was used as a gambling account from February 17, 2012. At this time, Defendant 3 was identified as the time when Defendant 3 started the transit of the overseas gambling site in the same manner as the instant facts charged, along with Nonindicted 1.

F) In addition, Defendant 3’s non-indicted 5’s account, seized at Defendant 3’s residence, was used from February 16, 2012 for the money exchange account of the instant transit site from February 16, 2012, and confirmed the highest date and time of the transaction among the accounts linked to this account, it is confirmed that the said account was connected to Nonindicted 4’s account.

G) Nonindicted 6, who operated the instant illegal gambling site with Defendant 3, Nonindicted 1, etc., stated that the time when Defendant 3 and Nonindicted 1 operated the gambling site is the beginning of the year 2012.

2) Unreasonable sentencing

The sentence imposed by the court below on Defendant 3 (limited to six years of imprisonment, confiscation, additional collection KRW 316,135,830) is too unfluent and unreasonable (it is interpreted that the prosecutor appealed the part of conviction and additional collection against Defendant 3 on the ground of unreasonable sentencing, according to the contents of the petition of appeal and the statement of grounds of appeal in this case).

2. Determination

A. Ex officio determination

Before determining the Defendants and the Prosecutor’s Grounds for Appeal, the Prosecutor examined ex officio prior to the appellate court’s determination of the Defendants’ grounds for appeal, and the Prosecutor reached the appellate court [2] 2. The portion of the “as shown in the separate list of crimes” among the specific criminal facts “as shown in the separate list of crimes” (from February 17, 2012 to April 22, 2015) as “the summary of the funds in the list of crimes (from February 17, 2012 to April 17, 2015),” and the judgment of the lower court was no longer maintained as they were, as it was changed by the court’s permission.

However, despite the above reasons for ex officio reversal, the defendants' assertion of misunderstanding of facts and misapprehension of legal principles, and the prosecutor's argument of misunderstanding of facts and misapprehension of legal principles with respect to defendant 3 is still subject to the judgment of this court within the scope of the modified facts charged.

B. As to the assertion of common mistake or misapprehension of legal principles

1) Regarding the establishment of gambling spaces

A) Whether the Defendants’ act constitutes establishment of gambling space

(1) The crime of opening a gambling space under Article 247 of the Criminal Act is a crime of opening a gambling space under the control of a person who is himself/herself and is established for the purpose of profit-making. The term “scambling person” as referred to in this crime refers to a person who gives an opportunity for gambling under his/her control and management, such as opening a gambling space and soliciting gambling to the gambling space and providing gambling tools. Whether a person is in the position of a presiding official shall be determined by comprehensively taking into account various circumstances such as the control and management of the gambling space, collection of fees, etc., and the role of the offender.

(2) It is recognized that the Defendants did not directly open a site, such as “(site name 2 omitted)” and “(site name 1 omitted)”, which is a foreign sports betting site. However, in full view of the facts and circumstances acknowledged by the lower court and the evidence duly admitted and investigated by the appellate court, it is reasonable to view that the Defendants conspired with Nonindicted Party 1 in order, and opened a new gambling site using the above foreign sports betting site for profit-making purposes. Accordingly, this part of the Defendants’ assertion is not accepted (as seen below, even if it is acknowledged that the facts directly accessible to the overseas ○○○○○○○○○○○ site without the aid of the instant website as part of the protocol of trial stating the result of the verification during the third trial date, it cannot be deemed that there was an error of mistake to the extent that affected the judgment of the lower court).

(A) In order for domestic users to use the foreign ○○○○○○○○○ (name 2 omitted), such as “(name 1 omitted)” and “(name 1 omitted)”, the above site should be admitted. In Korea, access through the major domain names of the above overseas ○○○○○ betting site should be interrupted, and domestic users should access the above overseas ○○○○○○○○○○ betting site.

In addition, the online electronic settlement site shall join the online electronic settlement site for electronic settlement. Such a site is ordinarily English, and the procedure such as photographing and sending a passport is complicated, and it is not easy for domestic users to directly join in the country who intend to gambling because it takes a lot of time to short in the course of authentication procedure, remittance, filling and exchange, and it is not easy for domestic users to do so. Furthermore, in order for domestic users to directly access to the overseas ○○○○○○ betting site and engage in gambling, foreign exchange fees should be remitted to foreign countries, and if they are frequently remitted, it is also likely to conflict with the Foreign Exchange Control Act (hereinafter “Evidence Record”).

On the third trial date, the appellate court verified that it is possible to directly access the Internet in Korea, such as a foreign ○○○○○○○○ (name 1 omitted) and (name 2 omitted). However, as seen above, considering the difficulties and disadvantages that may arise in the event of gambling by directly accessing the foreign ○○○○○○○ betting site, as seen in the above various circumstances, those who are allowed to smoothly gambling by accessing the above foreign ○○○○○○○○○○○○○ betting site in Korea were too small.

(나) 이에 공소외 1은 피고인 3을 비롯한 이 사건 공범들과 순차로 공모하여 위와 같이 국내 이용자가 해외 ○○○○○ 베팅사이트에 사실상 직접 접속하여 도박을 하기가 어렵다는 점을 이용하여 (사이트명 1 생략), (사이트명 2 생략) 등의 업체와 중계계약을 체결한 후 필리핀 마닐라시 소재 상업중심지인 ◎◎◎ 지역에 위치한 ‘◁◁◁ 빌딩’ 21층 및 ‘▷▷▷ 빌딩’ VIP 룸 등에 컴퓨터와 인터넷 통신기기 등을 갖추어 놓고 이 사건 중계사이트를 개설, 운영하면서 불특정 다수의 내국인들을 회원으로 모집하였다.

(C) If a domestic user who joined the instant relay site as a member deposits into the domestic account opened to the instant relay site, he/she would be charged to the foreign ○○○○○○○○ website via the said relay site. Members, through link to the instant relay site, have access to the foreign ○○○○○○ betting site and have a game money and have recorded the result of betting on the ○○○○○○○○○○○ through the link, he/she would be entitled to receive the game money according to each dividend rate. If a member wishes to exchange, he/she would pay the amount equivalent to the game money from the domestic account opened to the instant relay site to the user’s account (Evidence No. 1507, 1508, 1852).

(D) In the foreign ○○○○ betting site, offering money to the domestic users is merely cyber money and it is the operator of the instant relay site. The profits accrued by the domestic users using the said foreign ○○○○○○ betting site via the instant relay site shall first belong to the operator of the instant relay site. In other words, the money deposited by the domestic users is not directly transferred to the foreign ○○○○○○○ betting site, not directly, but the operator of the instant relay site receives a certain portion of the profits as a commission according to mutual relay contract, and the rest is only transferred to the foreign ○○○○○○○○○○○ betting site.

(E) In operating the instant relay site, not only the general responsibility that supervises the operation and fund management of Nonindicted Party 1, but also the initiative, development, and other general planning of the members and profit structure as Defendant 3, the role of managing the gambling revenue as a domestic financing book as well as the role of managing the gambling revenue as a "fund laundering" as Defendant 1, as Defendant 2, and the role of withdrawing the gambling revenue in Korea or delivering it to the “recovering” business operator as Defendant 2.

(F) In light of the control and management of the instant relay site, the collection of fees, etc., and the Defendants’ roles, etc., it is reasonable to deem that the Defendants, by themselves, established and operated the instant relay site, provided an opportunity for gambling to many unspecified gambling persons under their control and management.

B) Whether Article 247 of the former Criminal Act (amended by Act No. 11731, Apr. 5, 2013; April 5, 2013) is applied

(1) In a case where an individual criminal act, which is a single comprehensive crime, was committed over the period before and after the amendment of the law, the degree of the statutory punishment of the new and old law should be compared, and it should be punished as a single comprehensive crime by applying the new law, which can be called the law at the time of the completion of the crime, without any need to compare the seriousness of the statutory punishment of the new and old law (see, e.g., Supreme Court Decision 97Do

(2) The following circumstances are acknowledged by the evidence duly adopted and examined by the lower court and the appellate court, i.e., ① the Defendants’ crime of this case was committed continuously for a certain period under the single and continuous criminal intent for profit-making purposes and was also identical with the legal interest on the damage therefrom, and thus constitutes a blanket crime; ② the Defendants should be punished by applying the new law, which is the law at the time of the completion of the crime, to the crimes committed before April 5, 2013, as the crime of this case was committed across the period before and after the amendment of Article 247 of the Criminal Act. In so doing, the Defendants’ assertion that Article 247 of the former Criminal Act (amended by Act No. 11731, Apr. 5, 2013) should be applied is rejected.

2) As to the violation of the National Sports Promotion Act (Gambling place, etc.)

A) Whether Defendants’ act constitutes a violation of Article 26(1) of the National Sports Promotion Act

(1) Article 26(2) of the National Sports Promotion Act (amended by Act No. 11309, Feb. 17, 2012) provides, “The act of designing, manufacturing, distributing, or providing a system that issues sports betting tickets or similar things to the public by means of information and communications networks under Article 2(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.” (Article 2(1)1), “act of providing information related to sports for similar acts” (Article 2(2) and “act of mediating or mediating the purchase of sports betting tickets or similar things” (Article 47 through 49). Further, Articles 47 through 49 of the same Act provide a separate statutory punishment in accordance with the form of each prohibited act against those who violated the foregoing provisions. The purport of newly establishing a provision related to similar acts in the amended National Sports Promotion Act is to prevent a person who violated the aforementioned provision from becoming closely and effectively related to the “similar act” (Article 26(1)1) and 16).

(2) The fact that there is no mechanism that issues sports betting tickets or similar things on the instant relay site itself is recognized. However, in full view of the following facts and circumstances acknowledged by the lower court and the appellate court’s duly admitted evidence, it is reasonable to view that the Defendants’ act of operating the instant relay site in collusion with Nonindicted 1 constitutes an act of providing property benefits (similar act) to a person who correctly predicted the result by issuing things similar to sports betting tickets.

(A) The instant transit site pays a certain amount to the foreign ○○○○○ Sports Site, such as (name 2 omitted), (name 1 omitted), thereby securing “on-site exhibition,” and allowing domestic users to use the betting system, which is offered on the said foreign ○○○○○○○○○ Sports Site through links with each other in real time through links, but it is a structure of raising profits by independently issuing game money and exchanging it through the account managed by the instant transit site. In particular, in the case of (name 1 omitted of the website), the most famous overseas ○○○○○○○ Sports Site, which is the most well-known overseas ○○○○○○○○ Sports Site, the Defendants have the exclusive rights in Korea, and thus, another person cannot relay the website (name 1 omitted).

(B) If a domestic user who has joined the instant relay site as a member deposits into the account designated on the instant relay site, he/she is charged with the game money of the instant relay site, and the members have such charged game money go through the procedures for converting it to the game money of the said overseas ○○○○○○○○ betting site (so-called “so-called ballast”) and play gambling on the said site, and if he/she wishes to do so, he/she may receive direct remittance of money via a designated account by filing an application for money exchange to the amount of money desired out of the game money owned by the said relay site’s money exchange Newcom.

(C) As seen earlier, it is practically difficult in Korea to access and gambling at the above foreign ○○○○○○○○ betting site, and the provision of it to the domestic users at the above foreign ○○○○○○○○ betting site is merely cyber money (it cannot be deemed that private money constitutes property interests). Ultimately, the subject who provides property benefits to the domestic users through the exchange of game money corresponding to the winning money is the operator of the instant relay site.

(D) The instant relay site was granted the authority to conduct exclusive business by paying the sample of transfer to (name 1 omitted) etc., and the profits generated in the course of gambling at the said overseas ○○○○○ Sports Site via the instant relay site are reverted to the operator of the instant relay site.

(E) A general private site, which is punished by similar acts, has a difference between the instant transit site and the real-time link (connection) between the overseas name ○○○○○○○○○○○○○○○○○○○○○○○○○○○○ site, and such basic operation and profit-making structure are the same.

(F) As above, if the Defendants operated the instant transit site and occupied most of the profits, (name 1 omitted) and paid the sample of transfer to the foreign ○○○○○○○○○ betting site, and used the sports betting system real-time by linking, it would be reasonable to assess that the Defendants committed similar acts under Article 26(1) of the National Sports Promotion Act even if the Defendants did not directly issue the same things as the sports betting ticket, it would be in line with the legislative purpose of Article 26(1) of the National Sports Promotion Act.

B) Whether the principle of clarity and the prohibition of analogical interpretation is contrary to the principle of prohibition of analogical interpretation (related to the request for adjudication on constitutionality of statutes 2017 early 2047)

(1) The principle of clarity, derived from the principle of no crime without the law, means that anyone can predict what the law intends to punish and what punishment is, and therefore clearly define the elements of a crime so that anyone can determine his/her act. However, even though the elements of a punishment law must be clear, it does not require a simple descriptive concept, and even if a person who has a sound common sense and ordinary legal sentiment by ordinary interpretation methods uses the concept that requires complementary interpretation of judges, if he/she has a broad range of interpretation, it does not go against the clarity of the punishment law if he/she allows him/her to know the protected legal interests of the punishment law in question and the kinds and degree of prohibited acts and punishment. In addition, whether a certain legal norm is clear or not, it can be reasonably determined by the legislative purpose or method of interpreting the law, referring to the legislative purpose or method of interpreting the law, i.e., whether it gives a fair notice so that the law can understand the meaning of the law, and whether it can be reasonably determined by the legislative purpose or method of interpreting the law, 2019.

In addition, the principle of no punishment without the law requires that a crime and a punishment be prescribed by law in order to protect an individual's freedom and rights from the arbitrary exercise of the state's penal authority, and the principle of no analogical interpretation derived therefrom is prohibited from analogical interpretation with a meaning different from the original meaning expressed a sexual provision against the defendant under the premise that the provision of a sex should be strictly interpreted (see Supreme Court en banc Decision 92Do1428 delivered on October 13, 1992, etc.).

(2) Relevant statutes

(3) No person, other than the Seoul Olympic Sports Promotion Foundation or an entrusted business entity, shall issue sports promotion betting tickets or similar things (including those issued via information and communications networks) and provide property or property benefits (hereinafter referred to as "similar act") to a person who correctly predicted the result of the sports promotion, and the total voting amount per person shall not exceed 1,00 won.

(3) Although Article 26(1) of the National Sports Promotion Act (hereinafter “instant legal provision”) provides that “to issue sports betting tickets or similar things,” and the concept of similar things is somewhat abstract and comprehensive, it cannot be said that the legal provision of this case contravenes the principle of clarity or the prohibition of analogical interpretation, taking account of the following circumstances.

(A) The purpose of the National Sports Promotion Act is to increase the physical strength of the people by promoting national sports, to cultivate a sound mind to lead a happy life for the people, and to contribute to enhancing national prestige through sports (Article 1). The business of issuing sports betting tickets is to raise funds necessary for promoting national recreational sports and promoting sports (Article 24).

(B) The purport of the instant legal provision is to eradicate the unlawful operation of sports gambling business by a person who is not a legitimate business entity issuing sports betting tickets to achieve the purpose of the National Sports Promotion Act and the business of issuing sports betting tickets, thereby ensuring the stability and fairness of issuing sports betting tickets.

(C) It is recognized that there is a serious need to punish illegal sports gambling business as serious social harm, such as encouraging the people's spirit of gambling and undermining the sound sense of work.

(D) Article 2 Subparag. 12 of the National Sports Promotion Act provides that “sports promotion betting tickets shall be granted to persons who correctly predicted the outcome of the sports promotion, in which the method and amount of voting and other matters prescribed by Presidential Decree are stated,” and the Enforcement Decree of the National Sports Promotion Act provides in detail regarding sports promotion betting in the issuance of Chapter VII, but Article 26(1) of the National Sports Promotion Act shall apply even if the above “sports promotion betting” is not in the form of “sports promotion betting”. If the legal provisions of this case are excluded due to the reason that the form of “sports betting” is not in the form of “sports promotion betting” or that the matters to be stated are not indicated therein, the purpose of the business of issuing the National Sports Promotion Act or the sports promotion betting cannot be achieved.

(E) Even in the case of the operation of an illegal sports gambling business without the form of sports betting tickets, there is a need to strictly regulate it in light of its harm, and as such, it cannot be anticipated in advance, so even if the legal provision of this case simply provides that an act may constitute “an act of issuing similar things” without any restriction to punish the illegal sports gambling business, it may be supplemented by a judge’s reasonable interpretation and cooking, taking into account the legislative intent of the above provision and the degree of punishment, etc. in a specific case, the legal provision of this case does not contravene the principle of clarity in the principle of no punishment without the law or the principle of prohibition of analogical interpretation. Accordingly, Defendant 3’s request for adjudication on the unconstitutionality of law cannot be accepted.

3. The number of crimes against violation of the National Sports Promotion Act (Gambling, opening, etc.) and the establishment of gambling spaces

Of the facts charged in the instant case against the Defendants, in light of the Defendants’ attitude to commit acts and the contents of each element of the crime, the crime of opening gambling spaces constitutes several crimes (see, e.g., Supreme Court Decision 2016Do18119, Jan. 12, 2017). Nevertheless, the lower court erred by misapprehending the legal doctrine as to the number of crimes committed. Accordingly, the Defendants’ assertion in this part is with merit.

4) Whether the substance of the evidence was not clearly indicated (as to Defendant 1 and Defendant 2)

The lower court stated the summary of the evidence as follows: (a) [3], (2) [the other criminal facts except for the points and habituality set forth in the Decision 2017Da4742], and (3)] [Habitualness], and (b) the facts constituting the crime of opening a gambling space are included in the National Sports Promotion Act of 2016Da4625 and the facts constituting the crime of opening a gambling space are included in all of the provisions set forth in the Decision 2016Da4742, and most of the evidence are the same, it is evident that the evidence of the case against Defendant 1 and Defendant 2 was explained in the part of [the remaining criminal facts except for the points set forth in the Decision 2017Da4742 and habituality set forth in the Decision 3]. Therefore, this part of the allegation by Defendant 1 and Defendant 2 is without merit.

5) The method of prosecution and the details of the facts charged

In the appellate trial, the Prosecutor changed the list of crimes submitted in CDs through the application for permission to amend the Bill of Amendments as of April 24, 2017 to the attached Form “the summary of the funds for crime inundation (from February 17, 2012 to April 22, 2015).” This part of the Defendants’ assertion is no longer examined.

C. Defendant 1

(i) the computation of an additional collection charge;

A) The purpose of Article 247 of the Criminal Act is to impose penalty surcharges on property resulting from the crime of gambling in accordance with subparagraph 1 of Article 2 of the Act on Regulation and Punishment of Criminal Proceeds Concealment (hereinafter “the Act on Regulation of Criminal Proceeds Concealment”) and Article 2 subparagraph 1 of [Attachment Table], Articles 8 and 10 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, and the above penalty surcharges are to deprive the above illegal gains and prevent them from holding them. Thus, where several persons jointly obtain profits from gambling, only the distributed amount, i.e., the profit actually accrued, shall be individually confiscated and collected, and where it is impossible to determine the distributed amount, the distributed amount shall be equally confiscated and collected (see Supreme Court Decision 2007Do4640, Nov. 30, 2007).

In addition, whether the subject of confiscation or collection is subject to confiscation or collection, and the recognition of the amount of collection is not related to the constituent elements of crime, so strict certification is not necessary, but also, it is reasonable to recognize it by evidence, and if it is impossible to specify the criminal proceeds subject to confiscation or collection, it shall not be collected (see Supreme Court Decision 2014Do4708, Jul. 10, 2014, etc.).

B) Of the evidence No. 559 of the evidence list No. 2016 Highest 4625 note 5) No. 559 of the evidence list (Preparation of the list of criminal proceeds by each suspect), whether the list of Defendant 1’s acquisition of criminal proceeds (the same as the list of the acquisition of criminal proceeds by Defendant 1; hereinafter “Defendant 1’s acquisition list”) is the amount distributed to Defendant 1 or the profit substantially reverted to Defendant 1.

The evidence list 2016 Highest 4742 consists, instead, of Defendant 3 and the co-defendant 4 and the prosecutor's protocol of examination of evidence on the premise of the evidence list 2016 highest 4625 highest 2016 highest 4625. The main contents are as follows; hereinafter referred to as "Evidence List 2016 highest 4625" is referred to as "Evidence List."

No. 2016, No. 4625, No. 2016, No. 4625, No. 4625, No. 27466, No. 27466, No. 4766, No. 27666 (Evidence No. 4666, No. 24666, No. 27666, No. 466666 (Evidence No. 246666, No. 4666666, No. 2742, No. 46666666, No. 4666666, No. 2742, No. 24246666, No. 2426466, evidence of the prosecution)

(1) Methods and grounds for calculating additional collection charges against Defendant 1

From the sum of the acquisition list of Defendant 1’s criminal proceeds, the lower court calculated KRW 52,237,570,570,510,510, which was the sum of the values of the goods confiscated by Defendant 1 (Evidence Nos. 384 through 390, 406 through 414, 468, 474, 476, 480 through 485, 986) as additional charges.

(2) According to the evidence duly adopted and examined by the lower court and the appellate court and each organization prepared by Nonindicted 7 or Defendant 3, who is an accomplice (Evidence No. 3347, 8105 of the Evidence Record), Defendant 1 is acknowledged to have managed the fund under the direction of Nonindicted 1, etc., as a general domestic financing policy, and has colored the investment source, such as the purchase of domestic real estate and the investment of corporations, etc., and Defendant 1 also stated that Defendant 1 had consistently carried out the business of withdrawing and investing gambling proceeds at the request of Nonindicted 1 at the investigation agency (Evidence No. 8183 of the Evidence No. 8183 of the Record), it is difficult to view that Defendant 1’s amount indicated in each column of the above list of proceeds from crime, which was executed in the course of performing a general financial obligation in Korea, was both distributed to Defendant 1 or a profit substantially accrued to Defendant 1.

(3) Therefore, the judgment of the court below that calculated the amount of collection by deducting the value of the goods confiscated by Defendant 1 from the sum of the above acquisition list as the amount distributed to Defendant 1 or the profit actually accrued to Defendant 1, and thus, it erred by misapprehending the legal principles.

C) Judgment of the appellate court on the calculation of the surcharge against Defendant 1

In the lower court and the appellate court, comprehensively taking account of the evidence duly adopted and examined by the lower court, the items that can be deemed to have been distributed to accomplices, including Defendant 1, in the list of acquisition of criminal proceeds, are classified. ② Other items that cannot be determined with the amount reverted to a specific accomplice are equally divided and collected from Defendant 1.

(1) Facts taken into account in calculating the surcharge

(A) The details of the arrest of the Defendants and related accomplices

① Information on Nonindicted 3 (Evidence No. 17 pages of Evidence)

On August 12, 2014, Defendant 3 made a statement as the victim on August 12, 2014 as to the violation of the Use and Protection of Credit Information Act against Defendant 3, and informed Defendant 3 that Defendant 3 relays the overseas ○○○○○○ (name 1 omitted) in connection with organized violence.

(2) Defendant 3

2015. 4. 22. 14:00경 경찰에 출석하여 같은 날 23:00경까지 경찰 조사를 받은 후(증거기록 제375면) 다음 날 다시 출석하기로 하였는데, 같은 달 23. 02:00경 홍콩행 비행기를 예약하고, 같은 날 08:10경 인천국제공항에서 출국하려다가 출국을 하지 못하고 도주하였고(증거기록 제491면), 2016. 6. 29. 부산으로 이동 중 ♤♤휴게소에서 검거되었다.

(3) Defendant 1

On April 7, 2016, knowing the fact that an investigation is being conducted in connection with the operation of the transit site of this case, the person was arrested at the Incheon State's supply port on June 24, 2016 (Evidence Records No. 7261).

(4) Defendant 2

On June 24, 2016, Defendant 1 voluntarily surrenders to the police in a soup or soup, etc. (Evidence No. 7315 of the record).

(5) The date and time of arrest of major accomplices and details of investigation conducted by an investigative agency.

Nonindicted 2, Nonindicted 4, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 2, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 206, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 64, Nonindicted 206, Nonindicted 64, Nonindicted 64, Nonindicted 206,’s interrogation protocol of Defendant 1, Nonindicted 206, and Nonindicted 64, Nonindicted 6166, etc., of the police interrogation protocol of Nonindicted 2, 2015.

Note 7) April 5, 2016

(B) A gold deposited during the commission period.

During the operation of the transit site of this case, the defendants transferred the proceeds of crime to the front of the passbook, the intermediary passbook, the back passbook, etc. (Evidence No. 7346 of the evidence record), and it is not easy to calculate the correct amount of the total amount of the face-to-face.

However, according to the investigation report of No. 560 of the evidence list (Calculation of additional money and earnings) reveals that the defendants' total sales right to the foreign ○○○○○○○○○ website was acquired from September 1, 2012 to April 9, 2016, 681 transaction details of the instant gambling account: (a) gambling funds amount to KRW 4,153,416,110,755; and (b) if the amount of money exchanged to members was excluded from KRW 4,038,784,47,67,663,092, the total profits amount to KRW 114,631,63,092. In addition, if Nonindicted 100, an investigation agency, who was in charge of exchanging and shocking the instant transit site, stated that the daily total revenues amount to KRW 1,500,000,000,000 won, exceeded KRW 1,500,000,00 won,00.

In light of the above account analysis and the amount of gambling funds and proceeds according to the statements of accomplices, at least, the items to be collected under paragraphs (2) and (3) are sufficiently recognized as criminal proceeds or property derived from criminal proceeds or criminal proceeds of the instant crime through free certification and are subject to collection.

(2) Items to be deemed to have been distributed to the accomplices including Defendant 1 and to have been reverted to a specific accomplice

본문내 포함된 표 연번 개요 금액 분배받은 자 증거관계 등 1 도박 생활비 등 기타 잡비 46억 원(10억 원만 인정) 피고인 1 도박 금액 10억 원은 인정하고, 나머지 36억 원은 연번 2와 중복되거나 증거가 부족하다고 판단, 피고인 1에 대한 제5회 경찰 피의자신문조서 2 36개월간 매월 1억 원씩 수익금으로 취득 36억 원 피고인 1 피고인 1에 대한 제1회 경찰 피의자신문조서 4 공소외 15 주거지 (주소 2 생략) ♡♡♡♡ 매입금액으로 사용 29억 원 공소외 1 공소외 15는 공소외 1의 배우자로 공소외 1에게 이익이 귀속되었다고 판단, 피고인 1에 대한 제5회 경찰 피의자신문조서, 증 제579호(♡♡♡♡계약서), 증 제607호(영수증) 16 (차량등록번호 1 생략) 벤츠 차량 구입비용(공소외 13) 4,500만 원 공소외 13 공소외 13이 사용한 자동차이므로(증거기록 제4637, 4638면), 공소외 13에게 이익이 귀속되었다고 판단 17 페라리 베를리레타(공소외 20 회사 리스) 6억 4,000만 원 공소외 1 공소외 1이 사용한 자동차이므로(증거기록 제4619, 4620면), 공소외 1에게 이익이 귀속되었다고 판단 19 공소외 18 명의 투자금 400만 원 피고인 1 피고인 1의 배우자 공소외 18 명의로 투자한 것으로, 피고인 1에게 이익이 귀속되었다고 판단 20 람보르기니 차량 구입비용 7억 2,000만 원 공소외 1 공소외 1이 사용한 자동차이므로(증거기록 제4620, 4621면), 공소외 1에게 이익이 귀속되었다고 판단 24 (차량등록번호 2 생략) 레인지로버 차량 구입비용(공소외 21) 2억 원 공소외 21 공소외 21이 사용한 자동차이므로(증거기록 제4637면), 공소외 21에게 이익이 귀속되었다고 판단 25 (차량등록번호 3 생략) 벤틀리 슈퍼스포츠 차량 구입비용 3억 원 피고인 1 피고인 1이 사용한 자동차이므로(증거기록 제4633, 4634면), 피고인 1에게 이익이 귀속되었다고 판단. 변호인은 공소외 1의 내연녀 공소외 22가 사용하였다고 하나, 공소외 22가 사용한 차량은 (차량등록번호 4 생략) 벤틀리로 보임. 26 번호불상의 벤츠 AMG 차량 구입비용 1억 8,000만 원 피고인 1 피고인 1이 사용한 자동차이므로(증거기록 제4633면), 피고인 1에게 이익이 귀속되었다고 판단. 변호인은 피고인 3이 사용하였다고 하나, 피고인 3이 사용한 차량은 (차량등록번호 5 생략) 벤츠G바겐 차량으로 보임. 28 벤츠G바겐 구입 및 튜닝비용 3억 원 공소외 1 공소외 1의 배우자 공소외 15가 사용한 자동차이므로(증거기록 제4632면), 공소외 1에게 이익이 귀속되었다고 판단. 29 피고인 주거지 ●●●●●● 월세금 6,000만 원 피고인 1 피고인 1에 대한 제5회 경찰 피의자신문조서, 공소외 13 제2회 경찰 피의자신문조서 30 강남구 (주소 3 생략) ●●●●●● (호수 생략) 보증금 1억 원 피고인 1 피고인 1에 대한 제5회 경찰 피의자신문조서, 공소외 13에 대한 제2회 경찰 피의자신문조서 32 롤스로이스 팬텀드롭 헤드 쿠페 구입비용 7억 원 공소외 1 공소외 1이 사용한 자동차이므로(증거기록 제4627면), 공소외 1에게 이익이 귀속되었다고 판단 33 벤츠 G바겐 차량 구입비용(공소외 23) 5,000만 원 공소외 23 공소외 23이 사용한 자동차이므로(증거기록 제4636면), 공소외 23에게 이익이 귀속되었다고 판단 34 (주소 4 생략) ▲▲▲ 매입금액으로 사용 13억 원 공소외 1 공소외 1의 배우자 공소외 15가 살던 곳이므로(증거기록 제4960면), 공소외 1에게 이익이 귀속되었다고 판단 39 주식투자로 2억 원을 수수하였으나 투자손실로 압수한 금액은 74,029,491원 125,970,509원 피고인 1 2억 원에서 이미 압수된 74,029,491원(증 제986호)을 공제한 금액 피고인 1이 분배받은 금원 합계 : 5,369,970,509원(주8)

Note 8) 5,369,970,509

(3) An item that cannot be determined with money allocated to a specific accomplice, including Defendant 1, as it was distributed to the accomplice.

(A) The following items are that Defendant 1 maintained and transferred criminal proceeds derived from the instant crime, and subsequently selected an investment by means of money laundering, etc. to obtain new criminal proceeds, or to conceal criminal proceeds, and may be deemed as property derived from criminal proceeds or criminal proceeds. However, it is difficult to view that it belongs to a specific accomplice.

본문내 포함된 표 연번 개요 금액 증거관계 등 3 공소외 24 투자명목 9억 5,000만 원 공소외 24가 설립한 철강회사 설립자본금으로 지급됨(증거기록 제8057면) 5 공소외 3 투자금액 20억 원 피고인 1에 대한 제5회 경찰 피의자신문조서, 공소외 3에 대한 경찰 진술조서 6 공소외 25 회사 설립자본금 10억 원 피고인 1에 대한 제5회 경찰 피의자신문조서, 공소외 13, 공소외 7에 대한 경찰 피의자신문조서 7 자금세탁을 위해 피의자 공소외 7을 부(부) 이름으로 대출받고, 이에 상응한 현금을 지급한 뒤 대출액에 대한 이자 별도 납입 6,000만 원 피고인 1에 대한 제5회 경찰 피의자신문조서 8 ■■리조트 회원권 구입비용 3억 1,260만 원 피고인 1에 대한 제5회 경찰 피의자신문조서 9 공소외 20 회사 투자금 3억 5,000만 원 피고인 1에 대한 제5회 경찰 피의자신문조서, 공소외 26에 대한 경찰 진술조서 10 피의자 공소외 7에게 카지노 환전소 운영권 취득 명목으로 투자 11억 원 피고인 1에 대한 제5회 경찰 피의자신문조서 11 울진땅 투자금액 3억 원 피고인 1에 대한 제5회 경찰 피의자신문조서 12 공소외 27 회사 투자금 40억 원 피고인 1에 대한 제5회 경찰 피의자신문조서, 증 제577호 13 공소외 6 운영 공소외 28 회사 법인 투자금액 5억 원 피고인 1에 대한 제5회 경찰 피의자신문조서, 공소외 6에 대한 각 경찰 피의자신문조서 14 공소외 29 회사 투자금 80억 원 피고인 1에 대한 제5회 경찰 피의자신문조서 15 채석장비 업체대표 공소외 30에게 투자 2억 1,000만 원 피고인 1에 대한 제5회 경찰 피의자신문조서 18 공소외 31 회사 투자금 40억 원 피고인 1에 대한 제5회 경찰 피의자신문조서 21 ◆◆동 환전업자 공소외 32에게 송금하여 환치기 후 해외 송금 2억 원 피고인 1에 대한 제3회 경찰 피의자신문조서 22 피의자 공소외 7에게 피고인 2 경찰수사 무마대가로 현금지급 2억 원 피고인 1에 대한 제5회 경찰 피의자신문조서 23 ★★사 위패사업 투자금 23억 원 피고인 1에 대한 제5회 경찰 피의자신문조서 27 가평 펜션, 바지 및 수상스키 보트 매입 등 8억 5,000만 원 피고인 1에 대한 제5회 경찰 피의자신문조서 31 공소외 33 주식회사 투자금 1억 5,000만 원 피고인 1에 대한 제5회 경찰 피의자신문조서 36 피고인 3에 대한 경찰수사 무마대가로 공소외 34에게 전달한 포르쉐 911 구입비용 1억 8,000만 원 피고인 1에 대한 제5회 경찰 피의자신문조서, 공소외 35에 대한 경찰 진술조서 37 ◆◆동 환전업자 공소외 32에게 송금 5,000만 원 피고인 1에 대한 제3회 경찰 피의자신문조서 40 ▼▼동 고급빌라 청약금 1억 원 피고인 1에 대한 제5회 경찰 피의자신문조서, 공소외 36에 대한 경찰 진술조서 41 ◆◆동 환전업자 공소외 32에게 송금 3억 원 피고인 1에 대한 제3회 경찰 피의자신문조서 56 피고인의 주거지에서 발견된 범죄수익금에 대한 영수증 7억 원(인정된 금액은 0원) 증 제416호, 연번 5번 항목과 중복(증거기록 제8047면) 67 ◆◆동 환전업자 공소외 37에게 송금 50억 원 피고인 1에 대한 제3회 경찰 피의자신문조서 68 술값 등 접대비용 36억 원(인정된 금액은 0원) 증거가 부족하고, 연번 5번 항목과 중복될 여지가 있음 합계 32,112,600,000원

(B) It is difficult to determine who received the above money from anyone or who received the profit, and therefore, it must collect the money equally divided.

① In light of the fact that Defendant 3 received large profits from overseas ○○○○○○○○’s betting site and proposed the opening and operation of the instant broadcast site by approaching Defendant 3, Defendant 3 concluded a license agreement with Nonindicted 1 and Nonindicted 38, including (site name 1 omitted). After that, Nonindicted 1 was in charge of overall planning, Defendant 3 opened and operated the instant broadcast site, and each organization prepared by Nonindicted 7 or Defendant 3 (Evidence No. 3347,8105 of the evidence record), it is reasonable to deem that Defendant 3 was in the position of dividing the profits of the instant broadcast site with Nonindicted 1 and Defendant 3 in the position of dividing them into the profits of the instant broadcast site.

② Defendant 1 was in charge of the total amount of money in the Republic of Korea and carried out gambling revenue with considerable discretion in the Republic of Korea. Nevertheless, Defendant 1 was aware of the actual operator of Defendant 1 (Evidence No. 3371, 3393, 5342, 5344), Defendant 1 managed or invested in other businesses through Nonindicted 12 and 13, etc. (Evidence No. 3437, 4293 of the Evidence No. 343), Defendant 1 brought a fixed amount of KRW 100 million each month from domestic revenue at an investigative agency, and Defendant 1 did not appear to have received KRW 30,000 per month if he combines money to be deducted (Evidence No. 7256 of the Evidence No. 7256 of the Record), and most of Defendant 1 and Defendant 1 stated in the investigation agency’s statement to the effect that it would have no more than KRW 75,000 in Korea (Evidence No. 375 of the Record).

③ Therefore, it is reasonable to divide the above amount equally among Nonindicted 1, 3, and Defendant 1. Of the above amount, the amount to be collected from Defendant 1 is KRW 10,704,200,000, which corresponds to KRW 1/3 of the above amount.

(4) Items to be confiscated upon seizure;

If it is deemed impossible to confiscate property to be confiscated or inappropriate to confiscate such property, an amount equivalent to its value shall be collected (Article 10(1) of the Regulation on Regulation of Criminal Proceeds Concealment). As such, among the list of acquisition of criminal proceeds with respect to Defendant 1, the following items intended to be confiscated shall be excluded from the additional collection charge:

The criminal proceeds discovered from 40,000 won and 200,000 won and 500 won and 74,000 won and 74,00 won and 50,00 won and 47,00 won and 50,00 won and 47,00 won and 50,00 won and 47,00 won and 47,00 won and 506,00 won and 47,00 won and 50,000 won and 47,00 won and 50,000 won and 47,00 won and 50,000 won and 50,00 won and 47,00 won and 506,00 won and 50,00 won and 406,00 won and 506,00 won and 787,00 won and 506,00 won and 67,00 won and 4,00 won of the defendant's dwelling.

(5) Therefore, the amount to be collected from Defendant 1 is the sum of KRW 5,369,970,509, and KRW 16,074,170,509, and KRW 16,074,170,509, which are equally divided to Defendant 1 among the items that cannot be determined with the distributed amount.

2) The fact that the court did not explain reasonable grounds while rendering a judgment that deviates from the sentencing criteria

A) Article 81-7(1) of the Court Organization Act provides that “The law officer shall respect the sentencing criteria when selecting the type of punishment and determining the sentence: Provided, That the sentencing criteria shall not have the legal binding power,” and Article 81-7(2) provides that “where the court makes a judgment that deviates from the sentencing criteria, it shall state the reasons for sentencing in the written judgment: Provided, That this shall not apply where the judgment is rendered under the summary procedure or the summary trial proceedings.”

B) The lower court determined the sentencing guidelines for Defendant 1 as an aggravated area (one year and six months to four years) under Article 1(b) of the “reasons for the Punishment of Defendants 1” and sentenced four years and six months to the lower court. However, Article 2-A(1) of the “Reasons for the Punishment of Defendants 1, 2, and 3” states the common matters with respect to Defendant 1, 2, and 3, and Article 2-A(3) of the “Reasons for the Punishment of Defendants 1.” Therefore, the foregoing assertion on the premise that Defendant 1 did not state the reasons for the Punishment of Defendants 1 is without merit.

D. Defendant 3

(i) the computation of an additional collection charge;

A) The lower court collected the remaining amount of KRW 316,135,830, less than the amount confiscated from Defendant 3’s total amount of KRW 638,30 of the list of acquisition of criminal proceeds of Defendant 3 (the list of receipt of criminal proceeds of each suspect) in the evidence list No. 59 (the list of receipt of criminal proceeds of each suspect), 316,135,830, less than the amount confiscated (the amount of KRW 3,170,000,000), No. 3 of the list of acquisition of criminal proceeds of Defendant 3 (the amount of KRW 170,000,000), No. 7 (3,770,000,000), No. 8 (10,000,000).

B) However, as seen in Article 2-2(c)(c)(3) above, among the funds used by Defendant 1, the amount of KRW 10,704,200,000, which is equivalent to 1/3 of the amount distributed among the co-offenders should be collected from Defendant 3 (the defense counsel at Defendant 1’s defense counsel is the property reverted to Defendant 3, but it is difficult to conclude that the above property belongs to Defendant 3 even if based on each statement made by Defendant 1, Nonindicted 5, and Nonindicted 13’s investigative agency, it is difficult to conclude that the above investment content was used for the purpose of maintaining or concealing the gambling revenue of this case).

C) Accordingly, the amount to be collected from Defendant 3 is KRW 11,020,335,830, including ① KRW 316,135,830 as decided by the lower court, ② KRW 10,704,200 as well as KRW 10,335,830 as decided by the lower court, because it is difficult to determine who’s earnings accrue.

2) Regarding violation of the National Sports Promotion Act (Gambling, etc.) and habitual gambling

A) Whether the facts charged are specified

(1) The purport of the law that allows the court to specify the facts charged by specifying the time, place, and method of a crime is to limit the object of a trial to the court and to facilitate the exercise of the right of defense by specifying the scope of defense against the defendant. Thus, it is sufficient that the facts charged are stated to the extent that it can be distinguished from other facts by integrating these elements, and even if the date, time, place, method, etc. of a crime are not explicitly indicated in the indictment, if it is not contrary to the purport of the law that allows the specification of the facts charged as above and it is inevitable to indicate the general facts in light of the nature of the crime charged, the indictment cannot be deemed unlawful because the contents of the indictment are not specified, and in particular, in the case of a single comprehensive crime, even if the whole act constituting part of the crime is not specified in detail, the whole crime is specified if the whole period and period of the crime, the method of the crime, the victim or the other party, the frequency of the crime, and the total amount of damage (see, e.g., Supreme Court en banc Decision 2002Do807).

(2) In full view of the following circumstances acknowledged by the lower court and the evidence duly admitted and examined by the appellate court, this part of the facts charged seems to have been specified. Accordingly, this part of the allegation by Defendant 3 is without merit.

(A) Of the facts charged against Defendant 3, the violation of the National Sports Promotion Act (Gambling, etc.) and habitual gambling were indicted for a single comprehensive offense.

(나) 이 부분 공소사실을 보면, 개개의 행위가 구체적으로 특정되지는 않더라도 ① 그 시기와 종기를 2009. 11.경부터 2012. 9.경까지로, ② 범행 장소를 포항시 ◀◀동에 소재한 주거지로, ③ 범행 방법을 ‘컴퓨터로 불상의 운영자가 개설한 약 500여개의 인터넷 사설 ○○○○○ 사이트에 접속하여 그 곳에서 제공하는 국내·외 축구, 야구, 농구, 배구 등 각종 스포츠경기의 승무패에 돈을 걸어 그 결과에 따라 돈을 따거나 잃는 방식으로 도박을 하였다’로, ④ 범행 수익을 약 5억 원 상당으로 특정하였다.

(C) Defendant 3 stated that the investigative agency used a large number of sites exceeding 500 persons for three years, and that the specific gambling site was not memory, and that approximately KRW 500 million was punished after acquiring the betting method (Evidence No. 378, 390), and that the general indication of the facts charged is inevitable.

(D) Even if there is no gambling division, in a case where gambling habits is recognized by taking into account the nature and method of gambling, the size of gambling money, and the attitude of participating in gambling, etc., even if there is no gambling division, it is hard to view that this part of the facts charged as above seriously interferes with Defendant 3’s defense right of defense, which seeks to dispute the existence of the defendant’s habition (see Supreme Court Decision 95Do955, Jul. 11, 195, etc.).

B) Whether there is evidence as to the facts that Defendant 3 obtained approximately KRW 500 million criminal proceeds

According to the following facts and circumstances acknowledged by the lower court and the appellate court’s duly admitted and investigated evidence, it is sufficiently recognized that Defendant 3 obtained criminal proceeds of approximately KRW 500 million. Accordingly, Defendant 3’s assertion in this part is without merit.

(1) As seen earlier, Defendant 3 stated in the investigative agency that he purchased the method of betting in both banks, and punished approximately KRW 500 million. Considering the period of gambling, the size of money in the gambling site used by Defendant 3, the number of gambling sites used by Defendant 3, the distribution that Defendant 3’s spouse co-defendant 4 stated in the investigative agency, and the daily life (Evidence No. 1041 or 1050 of the Evidence No. 100 of the Evidence No. 1041 or 1050 of the Record), the above statement that Defendant 3 was punished for an amount equivalent to KRW 50 million by gambling is credibility.

(2) From around 2009 to August 2012, Defendant 3 stated that Defendant 3 used three accounts of the Doi-gu Doi-si bank in gambling by accessing the gambling site (the evidence records of the case No. 8676 of the 2016Dadan4742), and that Defendant 3 identified the scale of the Doi-do amount centered on the transaction details of the said three accounts and confirmed the amount equivalent to KRW 950,741,351 (the evidence records of the case No. 8683 of the 2016 Go-Ma4742).

C) Whether an act before February 17, 2012 can be punished under Article 48 Subparag. 1 of the National Sports Promotion Act

(1) Relevant statutes

Article 26 of the former National Sports Promotion Act (wholly amended by Act No. 11309, Feb. 17, 2012) (1) No person, other than the Seoul Olympic Sports Promotion Foundation or an entrusted business entity, shall issue sports promotion betting tickets or similar things (including issuance by means of information and communications networks) and provide property or property benefits (hereinafter referred to as "similar act") to persons who win at the betting results. Any person falling under any of the following subparagraphs of Article 48 shall be punished by imprisonment for not more than five years or by a fine not exceeding 50 million won:

(2) In a case where an existing penal law regarding a single comprehensive crime is not an amendment related to the expression or sentence, but an act that did not constitute a first offense is subject to the punishment of a single comprehensive crime by newly establishing the elements of a crime, the act before the enforcement of a new comprehensive crime punishment law cannot be punished by applying the newly established law (see, e.g., Article 1(1) of the Criminal Act; Article 2015Do15669, Jan. 28, 2016).

(3) According to the relevant statutes and the aforementioned legal doctrine, a person who gambling using a prohibited act under Article 26(1) of the National Sports Promotion Act is punished pursuant to Article 48 Subparag. 1 of the same Act. Article 48 Subparag. 1 of the National Sports Promotion Act was newly established and enforced from February 17, 2012, and thus, prior to the enforcement of the above penal provisions, it cannot be punished by applying Article 48 Subparag. 1 of the National Sports Promotion Act.

(4) Therefore, among the facts charged, Defendant 3’s assertion on the crime of violating the National Sports Promotion Act (Gambling, etc.) from November 2009 to February 16, 2012 is with merit.

3) As to a teacher in violation of the Use and Protection of Credit Information Act

A) Articles 50(2)7 and 40 subparag. 4 of the Use and Protection of Credit Information Act provide that a person who knows the location and contact information of a specific person or investigates a private transaction relationship, other than a financial transaction relationship, etc. shall be punished. As to a person who requires two or more persons to engage in a business of investigating private life, the provisions of the general provisions of the Criminal Act on accomplices cannot be applied. However, the act of investigating private life, etc. as above means to continuously repeat such act. Whether such act constitutes a business of investigating private life is determined according to ordinary social norms by comprehensively taking into account various circumstances such as whether such act is repeated or continued, such as private investigation, and whether it is necessary for profit-making purpose. Thus, it is not necessarily necessary to request a private investigation, etc. as a matter of course, or it is anticipated that the client's involvement in the act of investigating private life is anticipated, and therefore, the act of investigating private life as a business and the act of investigating private life cannot be seen as having relation to the client (see, e.g., Supreme Court Decision 2013Do525.

B) Considering the following facts and circumstances admitted by the lower court and the appellate court based on the evidence duly admitted and investigated, it is reasonable to view that Defendant 3 had Nonindicted 2 passed a resolution to enforce the Credit Information Use and Protection Act in violation of private investigation, etc.

(1) 피고인 3은 인터넷 사이트 ▒▒▒에서 사설탐정을 검색하여 고양시 (주소 5 생략)에 있는 ▶▶▶▶▶▶를 알게 된 후 전화를 걸어 사람에 대해서 알아보려고 하는데 가능한지 문의한 후 사무실을 찾아갔다. ▶▶▶▶▶▶ 대표 공소외 2는 전직 형사 출신으로 이런 쪽 일에 특화된 사람이라고 하며, 비용은 3일에 150만 원, 일주일에 300만 원이라고 하여, 피고인 3은 공소외 3이라는 사람에 대하여 알아봐 달라고 의뢰하였다(증거기록 제391, 392면).

(2) On the ground that Nonindicted 2 should first be considered, Defendant 3, after this mold, made phone phone calls to Nonindicted 3 and took the place of promise into the (trade name omitted) coffee shop in Goyang-si ( Address 6 omitted), and attempted to confirm Nonindicted 3’s face by making phone calls to Nonindicted 2 and inserting it to Nonindicted 3 (Evidence No. 394 of the Evidence Records).

(3) After three to four days from the call at a coffee shop, Nonindicted Party 2 deposited KRW 1.5 million by sending the data by telephone, and Nonindicted Party 2 sent a photographic file by e-mail. After that, Nonindicted Party 2 sent a photographic file once every three days, Nonindicted Party 2 sent KRW 1.5 million (Evidence No. 394, 395 of the Evidence Record) and received a photographic file (Evidence No. 395 of the Evidence).

(4) The term “private investigation, etc.” means the continuous repetition of such acts, and whether such acts fall under the category of such acts shall be determined according to ordinary social norms, comprehensively taking into account various circumstances such as repeated and continuity of acts such as private investigation, etc., whether such acts are conducted, whether such acts are conducted, and whether such acts are conducted, and the purpose and scale, frequency, period, and attitudes thereof. As seen earlier, considering the fact that Defendant 3 requested Nonindicted 2 to conduct a follow-up investigation such as the private life of Nonindicted 3 and continuously received Nonindicted 3’s photographic data, it appears that Nonindicted 2 was engaged in private investigation, etc. as a business.

(5) 또한 공소외 2가 이미 ▶▶▶▶▶▶라는 상호로 무허가 신용정보업체를 운영하고 있었다고 하더라도, 피고인 3이 3일에 150만 원을 지급하기로 하고 공소외 3의 사생활 조사 등을 의뢰하여 그 결과 공소외 2가 공소외 3의 사생활 등을 조사하기 시작한 이상, 피고인 3은 공소외 2의 무허가 신용정보업체 운영을 교사하였다고 보인다.

(e) A prosecutor;

1) Summary of this part of the facts charged

피고인 3은 공소외 1 등과 함께 2012. 2.경부터 2015. 4. 22.경까지 필리핀 마닐라시 소재 상업중심지인 ◎◎◎ 지역에 위치한 ‘◁◁◁ 빌딩’ 21층 및 ‘▷▷▷ 빌딩’ 24층 VIP 룸 등에 컴퓨터와 인터넷 통신기기 등을 갖추어 놓고 ‘△△△△△△.com', '□□□□-◇◇◇.net' 등 도메인을 사용하여 16개 가량의 중계사이트를 개설, 운영하면서 불특정 다수의 내국인들을 회원으로 모집하고 회원들로 하여금 위 중계사이트를 통해 위 ‘(사이트명 1 생략)’, ‘(사이트명 2 생략)’에서 제공하는 야구, 축구, 농구 등 국내·외 각종 스포츠 경기의 승부에 베팅을 하게 하여 베팅이 적중할 경우 미리 정해진 비율에 따라 환전을 해주고, 적중되지 못하면 그 베팅금을 자신들이 취득하는 방법으로 중계사이트를 운영하여 별지 ‘범죄일람표 자금 요약내역(2012. 2. 17.~2015. 4. 22.까지)’ 중 1 내지 564번 범죄일람표 기재와 같이 같은 기간 564개의 계좌를 통해 670,918,463,859원 상당의 도금을 입금받은 다음 384,309,271,917원을 회원들에게 환전해 주고, 286,609,191,942원 상당을 수익금으로 취득하였다.

As a result, Defendant 3 conspiredd with Nonindicted Party 1, etc. to commit similar acts.

2) The judgment of the court below

For the following reasons, the lower court determined that there was no proof of crime in the part Nos. 1 through 297 of the [Attachment 2] Nos. 1 through 297, which began prior to transaction on October 1, 2012, prior to the operation of the instant relay site, among the facts charged in the instant case.

A) According to the evidence duly adopted and examined by this court, the time when Defendant 3 entered into an agreement with Nonindicted Party 1, etc., and set up a server, etc. in a foreign country and operated the instant relay site can be acknowledged as around September 2012 (However, the date is not specified).

나) 공소외 6이 2012. 2.경 ‘♠♠♠♠’라고 하는 환전업체를 운영하고 있었는데 피고인 3이 ‘♠♠♠♠’에 고객을 유치하여 주거나 이용할 수 있는 계좌를 제공하여 주고 수수료를 받은 사실은 자인하고 있다.

다) ‘♠♠♠♠'는 원화를 호주 달러로 환전한 후 해외 인터넷 사이트에서 거래가 가능한 ♥♥♥♥♥ 등 온라인 페이먼트 또는 전자지갑 업체의 계좌로 송금하여 주는 역할을 하는 온라인 환전업체인 점, ‘♠♠♠♠’를 이용하는 고객은 ‘♠♠♠♠’를 통하여 환전한 돈을 ♥♥♥♥♥에 개설한 자신의 계좌에 입금받은 후 이를 이베이, 아마존 등 해외 인터넷 쇼핑몰에서 사용할 수도 있고, 해외 ○○○○○ 베팅사이트에서 사용할 수도 있는 점, 국내 이용자가 ♥♥♥♥♥로 해외 ○○○○○ 베팅사이트를 이용하기 위해서는 ♥♥♥♥♥에 계정을 만들고, 해외 ○○○○○ 베팅사이트에 회원 가입을 하면서 결제 수단으로 ♥♥♥♥♥를 선택하여 ♥♥♥♥♥의 계정을 입력한 다음 ‘충전하기’ 란에서 ♥♥♥♥♥를 선택하고 금액을 적고 충전 버튼을 클릭하면 ♥♥♥♥♥와 해외 ○○○○○ 베팅사이트가 연동되어 자동으로 ♥♥♥♥♥ 계정에 있는 외환이 위 베팅사이트로 입금되어 충전되어 그 게임 머니를 이용하여 베팅을 하고 환전은 그 역방향으로 진행되는 것인 점, 이때 ‘♠♠♠♠'는 환전에 따른 수수료를 부과하여 수익을 창출하는 구조인 점, 별지 ‘범죄일람표 자금 요약내역(2012. 2. 17.~2015. 4. 22.까지)’ 중 일부는 위와 같은 ‘♠♠♠♠’ 운영에 관련된 것인 점(공소외 6 등은 ‘♠♠♠♠’를 2013. 7.경까지 운영하였다고 진술하고 주9) 있다) 등에 비추어 보면 피고인 3이 ‘♠♠♠♠’에 관여한 행위를 이 부분 공소사실 기재와 같은 유사행위를 한 것으로 평가할 수는 없다고 할 것이다.

라) 피고인 3이 이 사건 중계사이트를 운영한 시점이 2012. 9.경임은 분명하지만 그 일자가 특정이 되지 않아 거래시작 시점이 2012. 10. 1. 이전 부분은 그 거래 내용이 이 사건 중계사이트를 이용한 것과 관련된 것인지 아니면 ‘♠♠♠♠’를 이용한 것과 관련된 것인지를 알 수 없고, 이 중에는 거래종료 시점이 2009. 10. 1. 이후인 부분도 포함되어 있기는 하지만 그 거래 내용이 거래시작 시점이 2009. 10. 1. 이전인 계좌의 거래내역인 점에 비추어 보면, 그 거래 내용이 이 사건 중계사이트를 이용한 것과 관련된 것인지 아니면 ‘♠♠♠♠’를 이용한 것과 관련된 것인지를 알 수 없으므로 이 중 거래종료 시점이 2009. 10. 1. 이후인 거래 내용에 대해서도 역시 모두 범죄사실의 증명이 없다고 할 것이다.

3) Judgment of the appellate court

In addition to the reasoning below’s judgment, it is reasonable to deem that Defendant 3 operated the instant relay site from September 2012 with Nonindicted Party 1, along with Nonindicted Party 1. Therefore, there is no error of misunderstanding of facts in the lower judgment. Accordingly, the Prosecutor’s assertion on this part is without merit.

A) Examining the statements, etc. from some of the witnesses as follows, Defendant 3 conspired with Nonindicted 1 to operate the instant transit site from February 2012.

(1) Although Nonindicted 3 was unable to accurately hear when Defendant 3 started at the investigative agency, it was said that Defendant 3 first meted around December 2013, and that Defendant 3 had been said to have been for two years thereafter, Nonindicted 3 stated that it was from the end of 2011 or the beginning of 2012 (Evidence No. 34 of the Evidence Record).

(2) 피고인 3이 사용한 스카이 핸드폰(IM-R520S, 증 제102호) (휴대전화번호 1 생략)에 대한 모바일 분석결과 2012. 3. 3. (휴대전화번호 2 생략) 번호를 사용하는 사용자가 피고인 3에게 ‘국장님, ♣♣입니다^^;; (사이트명 1 생략) 처음 위드로우하는데 금액제한이 있나요?’라고 문자메시지를 보내자, 피고인 3이 ‘7500불 제한요^^’라고 답한 사실이 인정된다(증거기록 제1282면).

(3) Around May 2012, Non-Indicted 16 stated that Defendant 3 had already developed a website (name 3 omitted) and used a link with a foreign site (name 2 omitted). From May 2012, Non-Indicted 16 stated that Defendant 3 was offered membership to Defendant 3 upon receiving a total number of sales from Defendant 3 around January 2013 (Evidence Records No. 6371, 6374).

B) However, considering that most of the statements made by the aforementioned accomplices are merely predicted, and considering the fact that Defendant 3, at the time of mobile phone mobile analysis, was revealed in the gambling field via the foreign ○○○○○○○○ betting site, such as (site name 1 omitted), it is difficult to readily conclude that Defendant 3 operated the instant relay site with Nonindicted 1, etc. from February 2012 solely on the aforementioned circumstances. Rather, some of the aforementioned references, following, must pass from September 2012, are the statement that Defendant 3 operated the instant relay site.

(1) Nonindicted 6 made the following statements at an investigative agency.

(A) From April 2012 to April 2013, Defendant 3 was known while exchanging USD 7 omitted. Defendant 3 received a request from Defendant 3 to find out whether it is possible to operate the gambling site (name 1 omitted) in Korea. Upon receipt of a request from Nonindicted 38 known in Australia, Defendant 3, Nonindicted 1, and Nonindicted 38 entered into a contract for the exclusive operating right with the person concerned (name 1 omitted) in Korea (Evidence 374, 3745 of the evidence record).

(B) Defendant 3, Nonindicted 1, and Nonindicted 38 are aware of the time when the interested parties (name 1 omitted) come to contact (Evidence No. 3745 of the Evidence Records).

(C) Nonindicted 6 received the introduction of Nonindicted 1 from Defendant 3 around February 2013 to March 2013. At the time, Defendant 3 was a fluent with the operation of the gambling site (Evidence No. 3753 of the evidence record).

(라) 공소외 6은 2012. 7~8.경부터 2013. 4.경까지 서울 마포구 (주소 7 생략)에서 직원 공소외 39를 두고 ♠♠♠♠를 운영한 사실이 있다(증거목록 제3760면).

(마) 피고인 3이 2012. 초경부터 공소외 1과 해외도박사이트 운영에 대한 논의를 하면서, 그 무렵 피고인 3이 공소외 6과도 ♠♠♠♠상을 함께 시작하였고, 2012. 10.경 (사이트명 1 생략) 한국총판에 대하여 알아보기 시작하였다(증거목록 제3761면).

(F) At the time of Nonindicted 6’s commencement of work by using Defendant 3’s overseas electronic walling site, one who is Defendant 3 and another son, and exchanged USD to gambling members, Nonindicted 1 took place with the overseas gambling site to Defendant 3. In fact, Nonindicted 1 operated the transit site from the end of 2012 to the end of 2012, which was the time when the Korean total sales was made (Evidence 1 omitted).

(G) From September 2012 to August 2013, Nonindicted 6 received cash from Nonindicted 1 and Defendant 3, and served as a substitute for KRW 1.8 billion in total on nine occasions (Evidence Records No. 4467).

(아) ♠♠♠♠상은 공소외 6과 피고인 3과의 문제이고, 해외 도박사이트 운영과 ♠♠♠♠는 상관이 없다(증거목록 제3769면).

(2) Nonindicted 14 stated in an investigative agency that Nonindicted 1 began to provide advice related to development from around 2011, and that Nonindicted 14 had shown problems by showing the program created by organizing the development team around 2012, and that the site was started to operate from the end of 2012 (Evidence No. 4156).

(3) On December 2012, 2012, Nonindicted 17 stated that Defendant 3, while directly operating the transit site of the overseas gambling site from the end of 2012, Nonindicted 17 stated that Nonindicted 16 and Nonindicted 17 were responsible for withdrawal at the beginning of 2013 (Evidence Records No. 6409).

(4) 공소외 40은 수사기관에서 2012. 8. 13.부터 2014. 3~4.경까지 환전상을 통하여 환·충전을 하며 영국 ○○○○○ 사이트 (사이트명 4 생략)사이트를 이용하여 도박을 하였는데, 환전상은 ▒▒▒ 카페 ‘(카페명 생략)’를 통하여 알게 되었고, 그 사이트의 운영자는 ‘♧♧국장 주10) ’ 이라는 닉네임을 사용하였으며, ♥♥♥♥♥ 환전상의 계정에 ♠♠♠♠가 들어갔다고 진술하였다(증거기록 제2005, 2006면).

(5) 공소외 41은 수사기관에서 2012년 봄경 ‘(카페명 생략)’라는 ▒▒▒카페에서 ‘♧♧국장’이라는 닉네임을 사용하는 운영자로부터 (사이트명 1 생략) 등 해외 ○○○○○ 베팅사이트 홍보 글을 받았으며, ♥♥♥♥♥ 가입 및 환전 방법으로 ‘MSN’ 메신저에 가입하여 ‘(이메일 주소 생략)’이라는 이메일 주소를 입력하면 친구가 맺어지는데 그 맺어진 친구를 통하여 ♥♥♥♥♥ 환전을 하라는 설명이 있었다고 진술하였다(증거기록 제2389, 2390면). 그리고 공소외 41은 공소외 4 명의 ◈◈은행 계좌가 ♧♧국장이 알려준 호주달러 환전계좌번호가 맞다고 진술하였다(증거기록 제2391면).

(6) As a result of the mobile analysis on Samsung Handphone (SCH-W860, No. 101), Defendant 3’s mobile phone number was used as a prepaid phone from October 2012 to March 2013. On January 23, 2013, Defendant 3 sent the word “(site name 1 omitted),” “(SCH-W860, No. 101, No. 101, No. 101, No. 101, No. 3 omitted) to the person who uses the instant phone number, who is in charge of (site name 1 omitted) partnership, and who is in charge of the available time limit (Evidence No. 1281)

C) As above, as to when Defendant 3 operated the instant transit site, the statement among the accomplices is divided, and as long as there is no clear evidence, it is difficult to view that Defendant 3 had proved without any reasonable doubt as to the fact that Defendant 3 operated the instant gambling site from February 2012.

4) Sub-determination

The prosecutor's appeal against the acquittal portion among the judgment below is dismissed as there is no ground.

F. Defendant 2

1) The contents alleged by Defendant 2 are without merit as examined as to the allegation of mistake or misapprehension of legal principles in common as set forth in Article 2-2(b).

(ii)the amount of the additional collection;

Defendant 2, upon Defendant 1’s instruction, played a role in withdrawing gambling proceeds in the Republic of Korea. In full view of the fact that the first year after the participation in the instant crime was made, Defendant 2 stated that he received approximately KRW 150 million per month as a whole, and KRW 50 million per month thereafter (Evidence No. 8173 of the evidence record), and that KRW 1950,000,000,000,000 were seized (Evidence No. 907), the lower court’s collection of KRW 146 million from Defendant 2 was justifiable.

G. Of the crime of opening gambling space, the determination on the related parts Nos. 1 through 297 of the “the summary of the funds for crime sight list (from February 17, 2012 to April 22, 2015)” among the crimes of opening gambling space (ex officio determination)

1) Of the facts charged in the instant case against Defendant 3, the lower court acquitted Defendant 3 on the part related to the [Attachment 1] Nos. 1 through 297 [Attachment 2012] among the summary of funds for the crime sight table (from February 17, 2012 to April 22, 2015].

2) However, as seen earlier, in view of the fact that one act runs the instant relay site around September 2012, when considering the fact that the violation of the National Sports Promotion Act (Gambling, etc.) and the establishment of gambling spaces are in an ordinary competition relationship corresponding to several crimes, and that if Defendant 3 started to run the instant relay site on or before that day, the crime of opening gambling spaces is not established, the crime of opening gambling spaces in relation to Nos. 1 through 297 of the “a summary of the fund list of crimes (from February 17, 2012 to April 22, 2015)” should be deemed to have no proof of a crime. In addition, the part against Defendant 3 among the judgment below is reversed ex officio.

3. Conclusion

The judgment of the court below is reversed on the grounds of ex officio reversal as seen earlier, and the defendants and the prosecutor's assertion is with merit, and the judgment below is reversed, and it is again decided as follows.

[2016 Highest 4625] - Defendant 1, and Defendant 2

No person, other than the Seoul Olympic Sports Promotion Foundation or an entrusted business entity, shall provide property or financial benefits (hereinafter referred to as "similar act") to a person who correctly predicted the sports betting tickets or similar things by issuing them, and no person shall open a place or space for gambling for profit.

1. Public offering relations and allocation of roles;

From September 2012, Nonindicted 1, in the order of September 11, 2012, Defendant 3, Nonindicted 38, Nonindicted 42, Nonindicted 43, Nonindicted 44, Nonindicted 45, Nonindicted 21, Nonindicted 23, Nonindicted 12, Nonindicted 47, Nonindicted 48, Nonindicted 49, Nonindicted 17, Nonindicted 50, Nonindicted 51, Nonindicted 52, Nonindicted 10, Nonindicted 53, Nonindicted 13, Nonindicted 7, Nonindicted 54, Nonindicted 55, and Nonindicted 6 (hereinafter referred to as “Defendant 3, etc.”) and the Defendants, concluded a separate public invitation to offer money from the overseas ○○○○○○○○○○ Sports Site (name of the website), which is impossible to connect, and operated the said domestic website through a separate public invitation to offer money from the domestic website (hereinafter referred to as “foreign relay contract”).

Accordingly, Nonindicted 1 plays a general role in managing the operation of the above relay site and the fund management; Defendant 3 took a role in the external business, such as the creation, development, and other general measures of the members and profit-making structure; Nonindicted 38; and Nonindicted 42; Nonindicted 14; Nonindicted 43; and Nonindicted 44 played a role in developing, maintaining, and repairing the programs of each relay site; Nonindicted 51; Nonindicted 19; Nonindicted 52; Nonindicted 10; and Nonindicted 53; Defendant 1, as a domestic total amount of money; Defendant 1 manages the gambling proceeds under Nonindicted 1’s order; Defendant 2 took a role in withdrawing gambling at home or delivering money to Nonindicted 6; Defendant 2, upon Defendant 1’s order, distributed the money back to Nonindicted 1; and Defendant 6, who distributed the money back to the money back to the money back to the money back to the country.

2. Specific criminal facts;

피고인들은 공소외 1 및 피고인 3 등과 위와 같이 순차적으로 공모하여 2013. 4.경부터 2015. 4. 22.경까지 필리핀 마닐라시 소재 상업중심지인 ◎◎◎ 지역에 위치한 ‘◁◁◁ 빌딩’ 21층 및 ‘▷▷▷ 빌딩’ 24층 VIP 룸 등에 컴퓨터와 인터넷 통신기기 등을 갖추어 놓고 ‘△△△△△△.com', '□□□□-◇◇◇.net' 등 도메인을 사용하여 16개 가량의 중계사이트를 개설, 운영하면서 불특정 다수의 내국인들을 회원으로 모집하고 회원들로 하여금 위 중계사이트를 통해 ‘(사이트명 1 생략)’, ‘(사이트명 2 생략)’에서 제공하는 야구, 축구, 농구 등 국내·외 각종 스포츠 경기의 승부에 베팅을 하게 하여 베팅이 적중할 경우 미리 정해진 비율에 따라 환전을 해주고, 적중되지 못하면 그 베팅금을 자신들이 취득하는 방법으로 중계사이트를 운영하여 별지 ‘범죄일람표 자금 요약내역(2012. 2. 17.~2015. 4. 22.까지)’ 기재 중 순번 491번 계좌부터 564번 계좌까지 74개의 계좌를 통해 119,227,208,035원 상당의 도금을 입금받은 다음 54,606,023,085원을 회원들에게 환전하여 주고 64,621,184,950원 상당을 수익금으로 취득하였다.

Accordingly, the Defendants, in collusion with Nonindicted 1 and Defendant 3, set up a space for gambling at the same time for profit-making purposes.

"2016 Highest 4742"- Defendant 3

1. Violation of the National Sports Promotion Act (Gambling place, etc.), and opening of gambling space;

No person, other than the Seoul Olympic Sports Promotion Foundation or an entrusted business entity, shall issue sports betting tickets or similar things and provide property or financial benefits to persons who win at the betting, and no person shall establish a place or space for gambling for profit.

(a) Public relations and allocation of roles;

From September 2012, Nonindicted 1, Defendant 1, Nonindicted 1, Nonindicted 46, Nonindicted 38, Nonindicted 42, Nonindicted 43, Nonindicted 44, Nonindicted 45, Nonindicted 21, Nonindicted 23, Nonindicted 12, Nonindicted 47, Nonindicted 48, Nonindicted 49, Nonindicted 17, Nonindicted 50, Nonindicted 51, Nonindicted 52, Nonindicted 10, Nonindicted 53, Nonindicted 13, Nonindicted 7, Nonindicted 54, Nonindicted 6, and Defendant 2 (hereinafter referred to as “Nonindicted 1, etc.”) concluded a public bid on the sports site (hereinafter referred to as “○○○○○○○○○○○’s website”) in order to operate the said sports site (hereinafter referred to as “the instant sports site”) by means of foreign participation in the crime from April 2013; and the name of Nonindicted 1, Defendant 2, Nonindicted 3, and its head office (hereinafter referred to as “O○○○○”).

Accordingly, Nonindicted 1 and Nonindicted 42 play a general role in overall management of the operation of the above relay site and the fund management, and another general responsibility that oversees the planning of members and profit-making structure, Defendant 1 and Defendant 1, as the general responsibility for domestic funds, manage gambling income under the order of the above Nonindicted 1, and physical coloring the investment source, such as money laundering, purchase of domestic real estate, and investment in the corporation, etc., Defendant 2 and Defendant 46 play a role in investing and managing gambling income generated from overseas in connection with Defendant 1 in a foreign country as the person in charge of foreign funds, and Nonindicted 38 and Nonindicted 42 play a role in concluding and maintaining contracts with the head office overseas, and Nonindicted 14, Nonindicted 43, and Nonindicted 444 play a role in developing, maintaining, and repairing programs of each relay site, Nonindicted 51, Nonindicted 19, Nonindicted 52, Nonindicted 10, and Nonindicted 53, as the head office overseas money filling and exchange, etc., and Defendant 2, who received instructions from the said domestic head office “money”.

B. Specific criminal facts

피고인은 위와 같은 공모 및 역할 분담에 따라 공소외 1 등과 함께 2012. 10. 1.경부터 2015. 4. 22.경까지 필리핀 마닐라시 소재 상업중심지인 ◎◎◎ 지역에 위치한 ‘◁◁◁ 빌딩’ 21층 및 ‘▷▷▷ 빌딩’ 24층 VIP 룸 등에 컴퓨터와 인터넷 통신기기 등을 갖추어 놓고 ‘△△△△△△.com', '□□□□-◇◇◇.net' 등 도메인을 사용하여 16개 가량의 중계사이트를 개설, 운영하면서 불특정 다수의 내국인들을 회원으로 모집하고 회원들로 하여금 위 중계사이트를 통해 위 ‘(사이트명 1 생략)’, ‘(사이트명 2 생략)’에서 제공하는 야구, 축구, 농구 등 국내·외 각종 스포츠 경기의 승부에 베팅을 하게 하여 베팅이 적중할 경우 미리 정해진 비율에 따라 환전을 해주고, 적중되지 못하면 그 베팅금을 자신들이 취득하는 방법으로 중계사이트를 운영하여 별지 ‘범죄일람표 자금 요약내역(2012. 2. 17.~2015. 4. 22.까지)’ 기재 중 순번 298번 계좌부터 564번 계좌까지 267개의 계좌를 통해 355,170,288,745원 상당의 도금을 입금받은 다음 181,244,833,430원을 회원들에게 환전해 주고, 173,925,405,315원 상당을 수익금으로 취득하였다.

Accordingly, the Defendant, in collusion with Nonindicted Party 1, established a space for gambling at the same time for profit-making purposes.

2. Violation of the National Sports Promotion Act (Gambling, etc.) and habitual gambling.

No person shall gamble by using any similar act.

그럼에도 피고인은 2009. 11.경[국민체육진흥법위반(도박등)의 점에 관하여는 2012. 2. 17.부터] 포항시 ◀◀동에 소재한 주거지에서 컴퓨터로 불상의 운영자가 개설한 인터넷 사설 ○○○○○ 사이트에 접속하여, 그곳에서 제공하는 국내·외 축구, 야구, 농구, 배구 등 각종 스포츠경기의 승무패에 돈을 걸어 그 결과에 따라 돈을 따거나 잃는 방식으로 도박을 한 것을 비롯하여, 그때부터 2012. 9.경까지 같은 방법으로 약 500여개의 사설 ○○○○○ 사이트에 접속하여 약 5억 원 상당의 수익을 거두었다.

As a result, the defendant gambling by using similar acts at the same time, and habitually gambling.

3. A teacher in violation of the Use and Protection of Credit Information Act;

No one, other than a credit information company, etc., shall engage in business to find out a certain person's whereabouts and contact details or investigate his/her private life, other than commercial transaction relationships, including financial transactions

In operating the transit site like paragraph (1) of Article 1, the Defendant: (a) accessed the victim Nonindicted 3, who is an overseas pre-paid card business operator, and he stored a friendship; and (b) proposed a business to contact pre-paid cards on the said transit site; (c) however, the Defendant was willing to request an unauthorized credit information business operator to investigate the victim’s privacy, etc., by taking the weak points of the victim’s refusal from the victim; and (d) was willing to request

피고인은 2014. 5. 말경 고양시 (주소 5 생략) 소재 ‘◐◐◐◐◐ 오피스텔’에서 금융위원회의 허가를 받지 아니한 채 ‘▶▶▶▶▶▶’라는 상호로 사람찾기, 가정문제 해결, 신변보호, 역할대행 등을 주요업무로 하는 무허가 신용정보업체 운영자 공소외 2에게 “피해자의 주거지 등 사생활을 뒷조사 해달라”고 의뢰하면서 대금으로 1일 150만 원씩 합계 4,000만 원을 교부하였다.

Accordingly, Non-Indicted 2, along with his employees Non-Indicted 56 and Non-Indicted 57, found the residence of the victim and his family members, or took photographs and videos related to their privacy, by means of driving the victim and his family members or observing locked in the Gangnam-gu Seoul, Yeongdeungpo-gu, Young-si, and Jeonnam-gu, Seoul, by July 9 of the same year.

Accordingly, the Defendant instigated the operation of the unauthorized Credit Information Company by Nonindicted 2, etc.

【2016 Highest 4625】

1. Defendants’ partial appellate court statement at each appellate court

1. Each of the original judgments by Defendant 1 and Defendant 2

1. Defendant 3’s partial statement in the original trial

1. Each prosecutor's suspect interrogation protocol against the Defendants

1. Defendant 1, Defendant 2, Defendant 3, Defendant 4, Nonindicted 10, Nonindicted 11, Nonindicted 7, Nonindicted 5, Nonindicted 12, Nonindicted 55, Nonindicted 6, Nonindicted 58, Nonindicted 14, Nonindicted 15, Nonindicted 16, Nonindicted 17, Nonindicted 50, and Nonindicted 59, and Nonindicted 18 of the Police Examination Committee

1. The statement of each police statement on Nonindicted 40, Nonindicted 60, Nonindicted 8, Nonindicted 61, Nonindicted 13, Nonindicted 32, Nonindicted 62, Nonindicted 63, and Nonindicted 59

1. A statement prepared by Nonindicted 19

1. Statement of seizure of each police;

1. Each investigation report;

【2017 Highest 4742】

1. Defendants’ partial appellate court statement at each appellate court

1. Each of the original judgments by Defendant 1 and Defendant 2

1. Defendant 3’s partial statement in the original trial

1. Each prosecutor's suspect interrogation protocol against the Defendants

1. Defendant 1, Defendant 2, Defendant 3, Defendant 4, and Defendant 10, Nonindicted 11, Nonindicted 7, Nonindicted 12, Nonindicted 5, Nonindicted 13, Nonindicted 6, Nonindicted 58, Nonindicted 14, Nonindicted 15, Nonindicted 16, Nonindicted 17, Nonindicted 50, Nonindicted 59, and Nonindicted 18, respectively, the protocol of examination of the police suspect against each of the Defendants 1, Nonindicted 15, Nonindicted 16, Nonindicted 17, and Nonindicted 59

1. The statement of each police statement on Nonindicted 40, Nonindicted 60, Nonindicted 8, Nonindicted 61, Nonindicted 13, Nonindicted 32, Nonindicted 62, Nonindicted 63, and Nonindicted 59

1. A statement prepared by Nonindicted 19

1. Statement of seizure of each police;

1. Each investigation report;

【Habituality】

In light of the fact that Defendant 3 repeatedly committed the instant gambling crime for a period of up to three years, and that the proceeds therefrom exceed KRW 500 million, etc., Defendant 3 may be recognized as a habitive wall.

1. Article applicable to criminal facts;

A. Defendant 1 and Defendant 2: Articles 247, 30 (a) of the Criminal Act; Article 47 Subparag. 2 and 26(1) of the National Sports Promotion Act; Article 30 of the Criminal Act (including similar acts, including the establishment of gambling spaces)

B. Defendant 3: Articles 247, 30 (a inclusive of the establishment of a gambling space), 47 subparag. 2, 26(1), 30 (a) of the National Sports Promotion Act, Article 48 subparag. 1, and 26(1) of the National Sports Promotion Act (including similar acts, including the use of gambling), Article 246(2) and (1) of the Criminal Act (including habitual gambling; hereinafter referred to as “Habitual gambling”); Articles 50(2)7 and 40 subparag. 7 of the former Use and Protection of Credit Information Act (Amended by Act No. 13216, Mar. 11, 2015); Article 31(1) of the Criminal Act (amended by Act No. 13216, Mar. 11, 2015);

1. Commercial competition;

(a) The Defendants: Articles 40 and 50 of the Criminal Act (mutual between the crimes of violating the National Sports Promotion Act and the establishment of gambling space)

(b) Defendant 3: Articles 40 and 50 of the Criminal Act (Violation of the National Sports Promotion Act and Habitual Gambling due to gambling using similar acts)

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation of concurrent crimes (Defendant 3);

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Confiscation (Defendant 1, Defendant 3);

Articles 8(1)1 and 8(1)2 (property derived from criminal proceeds) of the Act on Regulation and Punishment of Criminal Proceeds Concealment (see, e.g., Supreme Court Decisions 201Do11586, May 23, 2013; 201Do1586, May 23, 2013)

1. Collection of additional dues (the defendants);

Articles 10(1) and 8(1) of the Act on Regulation and Punishment of Criminal Proceeds Concealment

1. Application of the sentencing criteria;

A. Defendant 1

【Scope of Recommendation】

Illegal Sports Gambling, etc.> Type 3 (Similar ○○○○○) Aggravated Area (one year to June 4)

[Special Mitigation (Aggravated Aggravation)]

Where a person commits a crime in an organized manner by sharing the roles of the self-denunciation or internal accusation / Where he/she leads to the planning or implementation of the crime or plays a key role in the crime, and the scale of profit or business from the crime is very large.

B. Defendant 2

【Scope of Recommendation】

Illegal Sports Gambling, etc.> Type 3 (Similar ○○○○○) Aggravated Area (one year to June 4)

[Special Mitigation (Aggravated Aggravation)]

A self-denunciation or internal accusation / Where revenue or business from a crime is very large;

C. Defendant 3

【Scope of Recommendation】

Illegal Sports Gambling, etc.> Type 3 (Similar ○○○○○) : Special Dance Area (one year to six years)

【Special Person under Guard】

Where a large number of persons have committed a crime systematically by sharing their roles, and where they are led to planning or implementation of the crime or play a key role, and where the amount of profit or business from the crime is very large.

【Disposition of Multiple Crimes】

Since crimes for which the sentencing criteria are not set are concurrent, compliance with the lower limit of the scope of the recommended sentence of the above sentencing criteria shall be observed.

2. Determination of sentence;

A. The Defendants’ crime of this case caused serious social harm, such as encouraging excessive speculative spirit to the general public and impeding sound labor, thereby causing failure to lead to the failure of the general public’s economy and home life, etc. The Defendants committed a crime by using a server, etc. in a foreign country beyond the domestic judicial power, which is very poor in quality of crimes, such as using a passbook or large phone, etc. during the crime for a long time, and the amount of betting amount and profits up to a astronomical number, and the Defendants’ imposition of additional collection charge is inevitable in light of the following: (a) the period of the crime is a long period; (b) the amount of betting amount and profits up to a astronomical number; and (c) whether the said additional collection charge is being executed in the future without prepayment at all for the additional collection charge corresponding to criminal profits.

B. Although Defendant 1 was a first offender and voluntarily surrenders, he was in charge of managing gambling proceeds exceeding 50 billion won as a general domestic financial policy. When an investigation by an investigative agency was conducted too much, Defendant 1’s age, character and conduct, intelligence and environment, motive, means and consequence of the crime, etc., the upper limit of the sentencing criteria shall be set aside as the order, taking into account the following factors: (a) the fact that Defendant 1 escaped abroad; and (b) the fact that Defendant 1’s age, character and conduct, intelligence and environment; (c) motive

C. Defendant 2, as a domestic measure of withdrawal, was involved in the instant crime in accordance with the direction of Defendant 1; when an investigation was conducted by an investigative agency, the escape was made for two months after the escape; the primary offender was the first offender; the Defendant’s age, character and conduct, intelligence and environment; motive, means and consequence of the commission of the crime; and other sentencing conditions, such as the circumstances after the commission of the crime, shall be determined as per the order.

D. Defendant 3’s total liability planning for the instant crime with Nonindicted 1 is very important in the degree of participation. When an investigation by an investigative agency was conducted, the investigation was conducted in an excessive manner, the first offender was arrested for only one year, and the first offender was determined as ordered in light of the sentencing conditions, such as Defendant 3’s age, character and conduct, intelligence and environment, motive, means and consequence of the instant crime, and circumstances after the commission of the crime.

1. As to the violation of the National Sports Promotion Act (Gambling, etc.) and the opening of gambling spaces among the facts charged against Defendant 3

A. Summary of this part of the facts charged

피고인 3은 공소외 1 등과 함께 2012. 2.경부터 2012. 9.경까지 필리핀 마닐라시 소재 상업중심지인 ◎◎◎ 지역에 위치한 ‘◁◁◁ 빌딩’ 21층 및 ‘▷▷▷ 빌딩’ 24층 VIP 룸 등에 컴퓨터와 인터넷 통신기기 등을 갖추어 놓고 이 사건 중계사이트를 개설, 운영하면서 불특정 다수의 내국인들을 회원으로 모집하고 회원들로 하여금 위 중계사이트를 통해 위 ‘(사이트명 1 생략)’, ‘(사이트명 2 생략)’에서 제공하는 야구, 축구, 농구 등 국내·외 각종 스포츠 경기의 승부에 베팅을 하게 하여 베팅이 적중할 경우 미리 정해진 비율에 따라 환전을 해주고, 적중되지 못하면 그 베팅금을 자신들이 취득하는 방법으로 중계사이트를 운영하여 별지 ‘범죄일람표 자금 요약내역(2012. 2. 17.~2015. 4. 22.까지)’ 중 1 내지 297번 범죄일람표 기재와 같이 같은 기간 297개의 계좌를 통해 326,167,534,010원 상당의 도금을 입금받은 다음 208,362,031,116원을 회원들에게 환전해 주고, 117,805,502,894원 상당을 수익금으로 취득하였다.

Accordingly, Defendant 3, in collusion with Nonindicted 1, established a space for gambling at the same time for profit-making purposes.

B. Determination

This part of the facts charged against Defendant 3 constitutes a case where there is no proof of facts constituting the crime as seen in Articles 2-Ma-3 and 2-2, and thus, inasmuch as the defendant convicted him of violating the National Sports Promotion Act (such as Gambling, etc.) and the crime of opening gambling spaces in the judgment of not guilty under the latter part of Article 325 of the Criminal Procedure Act, and the crime of opening gambling spaces, it shall not be sentenced separately

2. As to Defendant 3’s violation of the National Sports Promotion Act (Gambling, etc.)

A. Summary of this part of the facts charged

No person shall gamble by using any similar act.

그럼에도 피고인은 2009. 11.경부터 2012. 2. 16.까지 포항시 ◀◀동에 소재한 주거지에서 컴퓨터로 불상의 운영자가 개설한 인터넷 사설 ○○○○○ 사이트에 접속하여, 그곳에서 제공하는 국내·외 축구, 야구, 농구, 배구 등 각종 스포츠경기의 승무패에 돈을 걸어 그 결과에 따라 돈을 따거나 잃는 방식으로 도박을 하였다.

B. Determination

This part of the facts charged against Defendant 3 constitutes a case where the penal law was enacted on February 17, 2012, as stated in Article 2-4(d)(c), and thus the facts charged prior to its enforcement do not constitute a crime. Thus, inasmuch as the facts charged prior to its enforcement is not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act, or the facts charged prior to its enforcement is pronounced guilty of the crime of habitual gambling in a relationship of commercial competition, the facts charged against Defendant 3 shall not be pronounced guilty in the text.

[Attachment]

Judges Kim Jong-chul (Presiding Judge)

Note 1) The legal counsel of March 27, 2017, No. 12 of the Pacific Opinion of the Law Firm, Kim & Lee, Counsel for the defendant-appellant of April 21 of the same year

2) It seems that the content of the application for changes in the indictment does not coincide with the specific facts charged (see, e.g., Supreme Court Decision 201Da4625, Apr. 22, 2015). However, since the circumstance in which the prosecutor’s application for changes in the indictment was filed is to specify the facts charged as to the portion submitted in CDs, the addition CDs among the facts charged are deemed to be changed to “a summary of the funds in the list of crimes (see, e.g., Supreme Court Decision 201Da4625, Feb. 17, 2012).”

Note 3) Defendant 3-2’s explanation of the grounds for appeal as of February 21, 2017

4) Since there is no mechanism that directly issues voting rights on the instant relay site, the Supreme Court’s judgment and fact-finding prior to the instant relay site are not identical.

Note 5)

Note 6) The above investigation report is identical to the evidence Nos. 30 in the evidence list 2016 Highest 4742 against Defendant 3. Meanwhile, the above Defendant 1’s acquisition list of criminal proceeds omitted No. 35 per annum, but the annual number indicated in the above list for specific convenience is used as it is.

Note 7) The evidence was arrested on April 6, 2016 on the page 3324 of the evidence record, but it appears to be a clerical error in April 5, 2016.

Note 8) The sum of the amounts in the column Nos. 1 (Recognition of KRW 1 billion out of KRW 4.6 billion), 2, 19, 25, 26, 29, 30, and 39 (Recognition of KRW 125,970,509, subtracting KRW 74,029,491, seized out of KRW 200,000) on the list of acquisition of criminal proceeds of Defendant 1.

주9) 공소외 6은 2013. 4.경까지 운영하였다고 진술하고 있고, 공소외 6 밑에서 ‘♠♠♠♠’를 운영하던 공소외 39는 2013. 7.경까지 운영하였다고 진술하고 있다.

Note 10) Defendant 3 used (Evidence No. 7734 of the Evidence).

Note 11) The facts charged are “as of February 2012.” However, as seen earlier, Defendant 3 operated the instant relay site with Nonindicted 1 from September 2012 to September 2012, thereby recognizing it as around September 2012.

Note 12) The indictment is written as “Article 50(3)(3)3,” but this is, according to Article 14(Transition) of the Addenda of the Use and Protection of Credit Information Act (Act No. 13216, Mar. 11, 2015), it appears that the above applicable provisions of law are erroneous.