beta
Text
The judgment below
The part concerning confiscation shall be reversed.
A seized charge shall be forfeited, on an emergency warning flashing line.
The judgment below
(2).
Reasons
1. The summary of the grounds for appeal is unfair because the sentence imposed by the court below against the defendant (three years of imprisonment, confiscation) is too unreasonable.
2. Determination
A. Ex officio determination 1) Article 48(1)1 of the Criminal Act provides that "goods provided or intended to be provided for an act of crime" as objects of confiscation. Among them, "goods provided for an act of crime" refers to goods used or deemed to have been actually contributed to the act of crime, and "goods provided for an act of crime" refers to goods that were prepared to be used for an act of crime but have not been actually used (see, e.g., Supreme Court Decisions 2006Do4075, Sept. 14, 2006; 2007Do1034, Feb. 14, 2008). 2) The lower court forfeited Samsung among those goods seized from the Defendant by the investigative agency, for each reason that they were provided or attempted to be provided for an act of crime in each of the items indicated in the judgment below.
However, according to the evidence duly adopted and examined by the court below, the above Samsung Samsung C&S mobile phone is merely a simple evidence used by the defendant to record and store specific criminal plans and necessary preparations in the Smermo Program in the course of planning and preparing each crime as indicated in the judgment below, and it cannot be deemed that they were directly used or contributed to the execution of each crime as indicated in the judgment of the court below, or that they were prepared to be used for each of the above crimes, but they were not actually used. Thus, they cannot be confiscated from the defendant.
Therefore, since the part of the judgment of the court below is erroneous in misunderstanding of facts or misunderstanding of legal principles concerning confiscation, the part of the judgment of the court below cannot be maintained.
B. We examine the defendant's argument of unfair sentencing, and both the defendant's each crime of the judgment of the court below are recognized.