[1] Whether the subject of confiscation or collection is subject to strict certification, or whether the recognition of the amount of collection is subject to strict certification (negative)

[2] Where several persons jointly obtain profits from the business of an illegal game room in violation of Article 44(1) of the Game Industry Promotion Act, the method of collection / Where there is money exchanged to the game users, the profits from the crime (=the remaining amount after deducting the amount of money exchanged to the game users from the sales)

[1] Article 48 of the Criminal Code, Article 44(2) of the Game Industry Promotion Act, Articles 307 and 308 of the Criminal Procedure Act / [2] Article 44(1) and (2) of the Game Industry Promotion Act

[1] Supreme Court en banc Decision 2005Do9858 Decided April 7, 2006 (Gong2006Ha, 2106), Supreme Court Decision 2007Do2451 Decided June 14, 2007 (Gong2007Ha, 1120), Supreme Court Decision 2008Do1392 Decided June 26, 2008 / [2] Supreme Court Decision 2007Do6019 Decided October 12, 2007 (Gong2007Ha, 1798), Supreme Court Decision 2007Do635 Decided June 30, 2007, Supreme Court Decision 2008Do1312 Decided June 26, 2008, Supreme Court Decision 2008Do201382 Decided September 27, 2002)

Defendant 1 and one other

Defendants

Attorneys Lee In-bok et al.

Cheongju District Court Decision 2014No33 decided April 10, 2014

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Cheongju District Court Panel Division. Defendant 2’s appeal is dismissed.

1. Judgment on Defendant 1’s grounds of appeal

(1) Whether the subject matter of confiscation or collection is subject to strict proof because it is not related to the constituent elements of a crime, but it is not necessary to establish it by evidence. However, if it is impossible to specify the subject matter of crime, it shall not be collected (see Supreme Court Decision 2008Do1392, Jun. 26, 2008). Meanwhile, the purpose of collection of the proceeds derived from the criminal act of violation of Article 44(1) of the Game Industry Promotion Act (hereinafter “Game Industry Promotion Act”) is to deprive the users of unlawful profits and prevent them from holding them. Thus, if several persons jointly obtain profits from the illegal game room business, only the distributed amount should be collected individually (see Supreme Court Decision 2008Do1312, Jun. 26, 2008; Supreme Court Decision 2008Do1392, Jun. 26, 2008; Supreme Court Decision 2007Do1392, Feb. 16, 2007).

(2) The lower court acknowledged the following facts based on the first instance judgment: (a) Defendant 1 operated the “○○ Game Center” in the Cheongbuk-gun ( Address 1 omitted) from July 2, 2013 to October 2, 2013; and (b) recognized Defendant 1’s act of gambling and other speculative acts; (c) recognized Defendant 1’s act of acquisition of the average of 3 million won per item card 500 won per 4,500 won by using the game products; and (d) recognized Defendant 1’s act of acquisition of the remaining KRW 300,000,000 per item card x 309,000 won x 3050,000 won, excluding the day on which Defendant 1 discontinued his business during the above period of 62 days; and (d) recognized Defendant 1’s act of acquisition of the average of 3 million won per day during the period of 62 days x 300,000 won.

(3) The above determination by the court below cannot be accepted.

Even according to the facts constituting an offense in this part, Defendant 1’s statement by Defendant 1 and the investigation report stating this, did not find any evidence on the sales or profits of the above game room in the record, in addition to Defendant 1’s statement that “The amount input in the game room was exceeded KRW 8 million when there was a large amount of money input in the game room, and the average sales per day was exceeded KRW 200 through KRW 3 million.”

Examining the above facts in accordance with the legal principles as seen earlier, the lower court should have collected the profits actually gained by Defendant 1 from the instant crime by deducting the money exchanged to the game users from the sales amount of the said game room recognized by evidence.

Nevertheless, without any specific evidence, the lower court recognized the fact that daily profit of the above game room was the cause of KRW 3 million, and collected the total amount of sales except the cash confiscated by Defendant 1 without examining the actual benefit accrued. In so determining, the lower court erred by misapprehending the legal doctrine on the degree of proof of the crime proceeds subject to additional collection under the Game Industry Act and the facts premised on the collection of additional collection, thereby failing to exhaust all necessary deliberations, and by recognizing facts beyond the bounds of the principle of free evaluation of evidence contrary to the experience

2. Judgment on Defendant 2’s grounds of appeal

(1) The lower court: (a) acknowledged the facts that, in collusion with Co-Defendant 1 and 2 from January 2013 to August 30, 2013, Defendant 2 engaged in gambling or other speculative acts using game products; (b) recognized the fact that, from September 11, 2013 to October 2, 2013, Defendant 2, in collusion with Co-Defendant 1 and 2, the lower court recognized the fact that the average daily profit of “△△△ Game Center” and “△△△△△ Game Center” were 400,000 won for each of the above crimes committed by Co-Defendant 2 and Co-Defendant 1, Defendant 2 and the lower court constituted a total of KRW 840,000,000,000, less than the average amount of KRW 504,000,000,000 for each of the above crimes committed on 184,000,000 won.

Examining the aforementioned legal principles and records, the lower court’s recognition and determination are justifiable. In so doing, the lower court did not err by misapprehending the legal doctrine on the degree of proof of criminal proceeds and the premise of collection, which are subject to additional collection under the Game Industry Act, nor by exceeding the bounds of the principle of free evaluation of evidence against

(2) According to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years is imposed. In this case where Defendant 2 was sentenced to a more minor punishment, the above Defendant’s assertion that the punishment is too unreasonable is not a legitimate ground for appeal.

3. Conclusion

Therefore, without examining the remaining grounds of appeal on Defendant 1’s unfair sentencing, the part against Defendant 1 among the judgment below is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 2’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)