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The judgment below
Among them, each part of the additional collection against the Defendants is reversed.
Defendant
3,000,000 won shall be collected from G.
Reasons
1. Summary of grounds for appeal;
A. The Defendants’ additional collection charges against the misunderstanding of the facts and misapprehension of the legal principles as to the confiscation and collection portion are based on the total sales of each game of this case. Since this includes profits from the normal business of the head of the game room, all of them are deemed criminal proceeds and thus cannot be additionally collected.
In addition, since the cash in the game room Nos. 19 through 29, which was confiscated by Defendant B, includes profits from the normal business of the game room, it cannot be viewed as criminal proceeds and confiscated.
B. The lower court’s sentence against the illegal Defendants (Defendant B: 2 years of the suspended sentence of October, community service work 160 hours, Defendant G: imprisonment with prison labor for one year, two years of suspended execution, and 200 hours of community service) is too unreasonable.
2. Determination
A. misunderstanding the facts related to confiscation and collection and misunderstanding of the legal principles 1) Whether the subject matter of confiscation and collection is subject to confiscation and collection, or the amount of collection is not related to the elements of crime, and thus strict proof is not necessary, but also acknowledged based on evidence. If the subject matter of crime cannot be specified (see Supreme Court Decision 2016Do18972, Apr. 7, 2017, etc.), each additional collection against the Defendants is prohibited (see, e.g., Supreme Court Decision 2016Do18972, Apr. 7, 2017) by applying Article 44(2) of the Act on the Promotion of Game Industry, the lower court additionally collected KRW 9.35 million from Defendant B, and KRW 65,242,00 from Defendant G, and it appears that the Defendants were calculated based on business profits from the game site transferred to the account or in cash as joint unemployment owners of each game of this case.
Article 44 (2) of the Act on the Promotion of Game Industry shall be confiscated, and if it is impossible to confiscate a profit from a criminal act under Article 44 (1), a penalty shall be collected.
Article 44(1) of the Act provides that the Defendants’ content of the instant crime shall be the same.