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The judgment below
Of them, the part against Defendant C shall be reversed.
Defendant
C A person shall be punished by imprisonment of one year and six months.
Defendant .
Reasons
1. Summary of grounds for appeal;
A. Fact-misunderstanding and misunderstanding of legal principles as to the imposition of additional charges (the Defendants) ① KRW 198.4 million in total paid to O, J, and K as co-offenders; ② KRW 100 million in total embezzled by W and X; KRW 90,000 in total, KRW 190,000 in the facebook account used by the Defendants, and KRW 30,000 in total, which was disbursed by a third party for about 28 months from February 2014 to June 4, 2016, and KRW 162 million in the facebook management expenses ( KRW 5,100,000 in total), which were paid by the Defendants for about 28 months from June 4, 2016, should be deducted from criminal proceeds.
However, the lower court calculated each additional collection charge against the Defendants without deducting the above amount from the total proceeds of KRW 2,252,150,000, which the Defendants acquired through the instant crime. In so doing, the lower court erred by misapprehending the facts and misapprehending the legal doctrine.
B. The lower court determined that: (a) Defendant A would bring about 50% of the total amount of profit; and (b) Defendant B and C would distribute the remainder to Defendant B and C in proportion to 30:20; (c) the profit substantially accrued to Defendant C is equivalent to 20% of the total amount of profit. Nevertheless, the lower court determined that the ratio of profit distribution between Defendant B and C was 25:25 and that it was a penalty surcharge of KRW 563,037,50 equivalent to 25% of the total amount of profit from Defendant C, by deeming that the ratio of profit distribution between Defendant C and C was 25:25.
(c)
The sentence of the lower court against the Defendants (Defendant A: imprisonment of three years, additional collection of KRW 1,126,075,00, Defendant B: imprisonment of three years, additional collection of KRW 563,037,50, Defendant C: imprisonment of two years, additional collection of KRW 563,037,50, and KRW 563,037,50) is too unreasonable.
2. Determination
A. As to the assertion of misunderstanding of the facts and misapprehension of the legal principles on the calculation of the surcharge (defendant 1).