The judgment below

The penalty collection portion shall be reversed.

The defendant shall additionally collect 37,300,000 won.

As above, the defendant.

1. The main point of the grounds for appeal is that the lower court’s punishment (one year and two months of imprisonment, and KRW 37,300,000) is too uneased and unreasonable.

2. The purpose of collection is to deprive a person subject to punishment pursuant to Article 47 subparagraph 2 of the National Sports Promotion Act of his/her authority on the collection of property acquired through similar acts, subject to Article 51 (1) and (3) of the National Sports Promotion Act, and to prevent the person from holding the said collection by depriving his/her unlawful profits.

Therefore, in case where several persons jointly gain profits from similar acts, the distributed money, i.e., the profit actually accrued, should be collected separately.

Meanwhile, inasmuch as the cost spent by an offender to obtain criminal proceeds was merely a method of consuming criminal proceeds even if it was spent from criminal proceeds, it does not constitute a deduction from criminal proceeds to be collected (see, e.g., Supreme Court Decisions 2008Do1312, Jun. 26, 2008; 2015Do3351, Jul. 23, 2015). Therefore, in cases where the principal offender who committed similar acts under the National Sports Promotion Act pays wages to an employee who is an accomplice, if it can be deemed that it was paid as part of distributing criminal proceeds, an amount equivalent to the amount of wages that he/she received from an employee who is an accomplice may be collected as a penalty pursuant to Article 51(1) and (3) of the National Sports Promotion Act.

On the other hand, if the principal offender paid wages to employees who are co-offenders as part of the expense expenditure in order to obtain criminal proceeds, the additional collection under the above provision on employees who are co-offenders is not allowed (see Supreme Court Decision 2018Do6163, Jul. 11, 2018). The lower court determined that the Defendant received 33.5 million won in relation to “G” from December 18, 2014 to April 1, 2016, and 3.8 million won in benefits received in relation to “V” on the Internet gambling site from May 1, 2016 to January 2017, Article 51 of the National Sports Promotion Act, both of the benefits received by the Defendant, 3.5 million won in total, 3.7.3 million won in relation to “V” on the Internet gambling site.