Defendant

All appeals filed by A, B and C and prosecutor against the Defendants are dismissed.

1. Summary of grounds for appeal;

A. The lower court’s punishment against the above Defendants A, B, and C (unfair sentencing) (Defendant A: three years of imprisonment; two years of imprisonment; and Defendant C: one year and six months of imprisonment) is deemed to be too unreasonable.

B. Prosecutor 1) Although the Defendants’ misunderstanding of the facts as to the additional collection amount constitutes corruption property and should be confiscated and collected in accordance with the Act on the Loss of Decomposment Property, the lower court erred by failing to collect the amount from the Defendants.

Even if the Defendants did not collect all the amount of damage caused by fraud from the Defendants, the part that the Defendants actually acquired should be confiscated and collected.

2) Each sentence of the lower court against the illegal Defendants (Defendant A: three years of imprisonment; two years of imprisonment; one year and six months of imprisonment; one year and six months of imprisonment; one year of imprisonment for Defendant D; one year of imprisonment for Defendant E; two years of suspended sentence for Defendant E: one year of imprisonment for one year); and two years of suspended sentence for one year of imprisonment) is unreasonable.

2. Determination

A. (1) As to the mistake of the facts about the collection of additional charges by the prosecutor, Article 6(1) of the Act on the Destruction of Decomposed Property may be confiscated or additionally collected in cases where it is deemed that the victim of a crime is extremely difficult to recover damage, such as where the victim is unable to exercise his/her right to claim the return of property or the right to claim compensation against the offender with respect to the property damaged by the crime.

It provides only the exceptional reasons for forfeiture and collection as ".........."

In this regard, property damaged by crime is also included in perishable property, and in the case of perishable property, the subject and requirements of confiscation and collection are specifically prescribed in Articles 3 through 5 of the Act on the Elimination of Decomposed Property, and therefore, Article 6 (1) of the Act is exceptionally possible to confiscate and collect the property damaged by crime.

Therefore, the confiscation and additional collection under Article 6 (1) of the above Act shall also be possible in accordance with the subject and requirements of Articles 3 through 5 of the above Act.

It should be seen (Supreme Court Decision 201Da1448, Nov. 29, 2018).