2016No573, 1991 (Joint) A. Violation of the National Sports Promotion Act (Gambling, Gambling, etc.)

(b) Gambling places;

(c) Act on the Regulation and Punishment of Criminal Proceeds Concealment.

violation of applicable rate

1. (a) . (b) . (c) A, and non-permanent,

Residence

Reference domicile

3. (a) . (b) . B , and self-employed

Residence

Reference domicile

Defendants, Prosecutor (Defendant 2’s Second Judgment)

Kim Jong-won (Lawsuits) and Cho Jong-young (Trial)

Law Firm Pyeongmun, Attorney Kim Hong (Defendant A)

Law Firm Barun, Attorneys Kim Jin-type (Defendant B)

1. Incheon District Court Decision 2015dan5049, 5164 (Joint) decided February 4, 2016;

7901 (Joint, Separated and Separated Judgment), 7931 (Joint, Separated Judgment)

2. Incheon District Court Decision 2015Nu5049, 5164 (Joint) decided May 26, 2016;

7901 - 1, 7931 - 1 (Joint, Separated Judgment)

September 28, 2016

All judgment of the court below are reversed.

Defendant A shall be punished by imprisonment for two years, and imprisonment for four years and eight months, respectively.

The evidence 1, 2, and 11 of the Incheon District Prosecutors' Office that was seized, No. 3311 of the pressure of 2015, 2015, and 2839 of this Court

A in the attached list (1) of the day of offense set forth in paragraph (2) of the attached Table No. 2 preserved for forfeiture

From this point, the evidence 2 to 6, 41 to 52, 57 of the Incheon District Prosecutors' Office' Office' 2015 pressures No. 3212

HS Heading, Incheon District Prosecutors' Office No. 4288 of 2015, the evidence No. 1, No. 8 of 2015, and the death by this Court No. 2015 Seocho2982

The list of offenses listed in paragraph (1) of the Annexed Crime List (2) shall be circulated in one vehicle for the benz listed in paragraph (1) and in paragraph (5).

A claim for the return of the purchase price for passenger vehicles, a deposit claim in new bank (10 - 30 - 7000) stated in paragraph 18;

New Bank (100 - 300 - 300000) stated in paragraph 19, deposit claims stated in paragraph 20, trust claims stated in paragraph 20

High-number of units: Deposit claims listed in paragraphs 8, 123, 643), and No. 21 (300 - 0000 - 6000 - 6000)

22 Defendant’s claim for the refund of the sales contract amount under the tax stated in paragraph (2) (10 B/L No. 10 Dong 10)

from B each forfeiture.

27, 900, 000 won from Defendant A, and KRW 9, 625, 535, and 507 from Defendant B shall be collected respectively.

1. Summary of the grounds for appeal;

A. Defendant A

(1) Appellant of the lower judgment of the first instance court

The judgment of the court of first instance is erroneous in misunderstanding the legal principles on confiscation and collection in the judgment of the court of first instance, since the amount confiscated in the judgment of the court of second instance should be deducted without deducting the amount confiscated.

(2) The assertion of unreasonable sentencing

The sentence of the first original judgment against the accused (the imprisonment of one year and eight months, confiscation, additional collection KRW 400 million) and the sentence of the second original judgment (the imprisonment of four months, confiscation) are too unreasonable.

B. Defendant B

(1) misunderstanding of facts and misunderstanding of legal principles on the first judgment

The judgment of the court of first instance is erroneous in misunderstanding the following facts or misunderstanding the legal principles concerning confiscation and collection:

① The Defendant received instructions from “one president of the instant gambling site” during the period of operating the instant gambling site, and operated the said gambling site in accordance with such instructions, and subsequently distributed or disbursed operating expenses, etc. to other accomplices at around 15,979, 467, and 905, which was paid for approximately 30% of the total revenues of KRW 15, 979, 467, and 905, and did not directly operate the said gambling site, the lower court calculated a surcharge on the premise that the Defendant deemed the actual operator of the instant gambling site and the Defendant acquired the entire total revenues of the said gambling site.

1. (2) The lower court calculated the penalty surcharge without deducting the forfeited portion from the amount to be collected.

③ In calculating a surcharge, the lower court calculated the surcharge after deducting only 400 million won from the total revenue, although only the profit that actually belongs to the Defendant should be collected by deducting the profit actually accrued to the accomplice from the deduction of the profit actually accrued to the accomplice.

(2) misunderstanding of facts and misunderstanding of legal principles on the second judgment of the court below

The second judgment of the court below is erroneous by misunderstanding facts or by misapprehending legal principles as follows.

① As to the part that pretending the acquisition of criminal proceeds, the Defendant’s act of receiving remittance to a borrowed financial account is merely merely a part of the pertinent criminal act generating criminal proceeds, and cannot be deemed as an act separate from the pertinent criminal act, and thus cannot be deemed as an act of pretending the acquisition of criminal proceeds. Even if the Defendant’s act is recognized as an act of pretending the acquisition of criminal proceeds, it is an act of pretending the acquisition of criminal proceeds. Even if it is recognized as an act of pretending the acquisition of criminal proceeds, it is an unlawful act of misunderstanding the legal principles by misapprehending the legal principles.

② As to the part that pretended the fact about the disposition of criminal proceeds, the court below found the defendant guilty despite the fact that the defendant acquired property through legitimate means, such as a bank business, and that the defendant did not intend to disguise the disposition of criminal proceeds. The court below erred by misunderstanding the fact.

(2).

(3) The assertion of unreasonable sentencing

The sentence of the first instance judgment against the defendant (the imprisonment of four years, confiscation, additional collection 15, 579, 467, 905 won) and the second instance judgment against the defendant (the imprisonment of eight months, confiscation) are too unreasonable.

(c) Prosecutors;

(1) Deeming the misapprehension of legal principle as to the acquittal portion of the second judgment

The judgment of the court of the second instance that acquitted the Defendants of this part of the facts charged on the ground that the Defendants’ act of depositing the proceeds of crime in their own account after withdrawing the proceeds of crime in cash or purchasing real estate under the names of the Defendants cannot be deemed as a disguised act on the disposal of the proceeds of crime, is erroneous in the misapprehension of legal principles as to

(2) Claim on unreasonable sentencing on the second judgment of the court below

Each sentence of the second original judgment against the Defendants (Defendant A: imprisonment of April, confiscation, Defendant B: imprisonment of August, confiscation) is deemed to be too uneasible and unfair.

2. Determination

A. Ex officio determination

(1) Prior to the judgment on the grounds of appeal, prior to the judgment on the grounds of appeal, the Defendants were examined ex officio, and the Prosecutor filed each appeal against the second and second original judgment, and this Court decided to concurrently examine each of the above appeals cases. Each of the offenses against the Defendants in the judgment of the court below is a concurrent offense relationship under the former part of Article 37 of the Criminal Act, and the judgment of the court below against the Defendants should be rendered concurrently in accordance with Article 38(1) of the Criminal Act. Accordingly, the judgment of the court below against the Defendants cannot be maintained any further.

(2) In addition, the prosecutor received at the trial of the court of appeal the total amount of KRW 175, 398, 519, and 855 of the facts charged of the second instance judgment (hereinafter “the total amount of KRW 175, 398, 519, 688, and 150 among them, exchange KRW 159,216, 68, and 150 among them with dividends to members, and made profits equivalent to KRW 16,181, 831, and 705 in the amount of KRW 173,439, 237, and 555 of the facts charged of the second instance judgment, and then the prosecutor made a change in the contents of the appeal to the members, and thus, the application for permission was no more than 157,459, 769, and 650 won before exchange, 15, 979, and 467, and 95 of the judgment below.

(3) However, notwithstanding the above reasons for ex officio reversal, Defendant B’s assertion of mistake and misapprehension of legal principles against Defendant B’s second judgment, and Prosecutor’s assertion of misapprehension of legal principles as to the second judgment is still subject to the adjudication of this Act. Therefore, we look at this point (Provided, That the Defendants’ assertion of misunderstanding of legal principles or misapprehension of legal principles as to the calculation of collection amount against the first judgment of the lower court is first judged as to the disposition of forfeiture, and then the judgment on the additional collection amount is also judged

B. Judgment on the mistake of facts and misapprehension of legal principles by Defendant B

(1) Whether the acquisition of criminal proceeds is disguised or not

Act on Regulation and Punishment of Criminal Proceeds Concealment refers to disguised act of acquiring or disposing of criminal proceeds, etc. under Article 3 (1) 1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment means a disguised act of pretending that there is no existence of the cause of acquisition or disposal of criminal proceeds, etc. (see Supreme Court Decision 2006Do7881, Feb. 15, 2008). Such an act may include an act of pretending that criminal proceeds, etc. belong to a third party (see Supreme Court Decision 2007Do1004, Feb. 28, 2008; 2007Do1004, Feb. 28, 2008). The defendant's acquisition of 112 borrowed financial accounts from a person who has failed to obtain name and received money from its members constitutes "an act of pretending the acquisition of criminal proceeds, etc."

On the other hand, as alleged by the defendant, "an act pretending the fact about the acquisition or disposition of criminal proceeds, etc." does not separately establish a crime of violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment. However, the crime of gambling in this case first does not need to be committed in the crime of "the act of receiving money if it was established for the purpose of profit-making", and the crime of violation of the National Sports Promotion Act is also an act of offering property or property benefits to the person who correctly predicted the result by issuing things similar to the sports promotion betting ticket. However, it is reasonable to view that the defendant's use of the so-called one-called one-called one-called one of the above crimes in the name of a third party, which is not his own account or his accomplice's account to avoid the tracking of the investigation agency, constitutes the most essential part of the above crimes. Thus, it is reasonable to view that the act of gambling in this case constitutes the act of taking money back to the opening of a place for gambling for the purpose of profit-making.

In addition, the crime of violation of the National Sports Promotion Act (Gambling, etc.) and the crime of opening gambling and the crime of violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment, which has been remitted through the borrowed financial account of the second judgment, is different from the elements of each other, the form of such act and the legal interests protected by the law, and thus, the defendant's principal state that each of the above crimes is in a mutually competitive relationship is not accepted. Accordingly, this part of the defendant's assertion is without merit.

(2) Whether the facts about the disposition of criminal proceeds are disguised

On the other hand, the data submitted by the defendant alone cannot be deemed to have been acquired by the defendant through legitimate means, such as a bank business, in acquiring the properties listed in the annexed list of crimes (2). In addition, even if the defendant's domestic income is partially included in the grounds for acquiring each of the above properties, the "criminal proceeds, etc." under Article 3 (1) of the Act on Regulation and Punishment of Criminal Proceeds Concealment includes not only the "criminal proceeds" but also the "property derived from the criminal proceeds, etc." but also the "property mixed with these properties, etc." and it cannot be deemed that they are not the objects of concealing criminal proceeds (Article 2 subparagraph 4 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, etc.). However, since the confiscation of the Act on Regulation and Punishment of Criminal Proceeds Concealment is a discretionary confiscation, only a part of the property can be confiscated, and thus it cannot be deemed to be unlawful if the defendant's legitimate acquisition of the whole property is too harsh or only part of the property is confiscated.

In addition, in full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below, it can be sufficiently recognized that the defendant had the intent to disguise the disposition of criminal proceeds. Thus, this part of the defendant's assertion is without merit.

① The Defendant alleged that ○○○, a wife, purchased a passenger car in the name of So-called ○○, which is a fluort, without having subscribed to the automobile insurance. However, the Defendant did not explain to the effect that 60 million won was paid in the name of ○○, after purchasing a passenger car in the name of ○○○, and paying 60 million won in the name of ○○○.

② At an investigative agency’s ○○’s financial account, 6 accounts of a national bank, 2 accounts of a Han Bank, 3 accounts of a Han Bank, 3 accounts of a Han Bank, and 12 accounts of a Korean bank were confirmed (Evidence No. 447 of the Evidence No. 447 of the Evidence No.), among which, according to the statement of ○○○, the statement was prepared in attached Form No. 2 only for a specific account that is managed and used by the defendant, except for the accounts he/she used as living expenses, etc.

③ Specifically, ○○○ transferred KRW 200 million from the Defendant’s name account to the Defendant’s (new bank), immediately after the Defendant was arrested, and the remainder of two accounts in the name of ○○○○ (new bank and trust bond), other than ○○○, appears to have been managed and used by the Defendant (Evidence Record 566, 740 pages, 740).

④ 세○ ○○○○○ 아파트 ( ●●●동 ●●●●호 ) 는 피고인이 류○○ 명의로 분양 받았고 류○○은 일체 관여하지 않은 것으로 보인다 ( 증거기록 567쪽 ) .

⑤ At an investigative agency, 16 accounts were confirmed, including 2 foreign exchange bank accounts, 1 bank accounts, 4 bank accounts, 7 bank accounts, and 2 post bank accounts. Among them, on August 19, 2015, following the Defendant’s statement, the following: (a) the list of crimes was prepared (2) only for the account in which the Defendant acknowledged that the Defendant received 100 million won from the Defendant’s account via ○○○ upon the Defendant’s statement was arrested (Evidence 554 pages, 740 pages).

④ Although a financial transaction was conducted in a relatively small amount as of 201 as of the date of 2011, various funds, installment savings, etc. in their names are gradually subscribed and transactions took place in a large amount since 2011, other financial accounts than the attached Table (2) cannot be excluded from the probability that the Defendant is an account managed and used by the Defendant. However, since ○○○ and ○○○ was the one used by the Defendant, it is limited to the accounts recognized by the Defendant as the accounts managed and operated by the Defendant.

C. Judgment on the misapprehension of the legal principle of prosecutor

After the Defendants withdrawn part of the proceeds of the crime in the borrowed financial account, the prosecutor himself paid the down payment to ○○○○○○○○○ in his own name, or deposited shares in his own name, or deposited them into his account under his own name, as set forth in Section 1, 3, and 4 of the attached Table of Crimes List (1). In the case of Defendant B, as set forth in Sections 2 through 4, 6 through 17, 23, and 25 of the attached Table of Crimes List of Crimes (2), the prosecutor raised a public prosecution against the purport that each of the above acts is disguised about the disposition of criminal proceeds.

However, the act of the defendants withdrawing criminal proceeds and prohibiting them from entering the account in his/her own name or purchasing real estate under his/her own name cannot be seen as "the act of pretending the fact about the disposal of criminal proceeds" cannot be seen as "the act of pretending to the fact about the disposal of criminal proceeds". Therefore, the second judgment which acquitted the defendants pursuant to the latter part of Article 325 of the Criminal Act is just because there is no proof of criminal facts as to this part of the facts charged, and therefore, the prosecutor's above head is without merit.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act, without examining the defendants and the prosecutor's two-dimensional arguments, and it is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts constituting the offense of this court and the evidence acknowledged by the court are remitted to KRW 175, 39, 216, 68, 150 among them to members by means of dividends of KRW 16, 181, 831, 705 among them, after receiving KRW 157, 459, 398, 519, and 855 won in total from the facts constituting the offense of the second instance judgment, the summary of the facts constituting the offense of this court and the evidence is as follows: “B shall receive KRW 173,439, 237, 555 won in total from the Do, and make profits equivalent to KRW 157,459, 769, 650 in dividends, and then make profits equivalent to KRW 15,979, 467, and 905 of the Criminal Procedure Act to members.”

Application of Statutes

1. Relevant Articles of criminal facts;

A. Defendant A

Article 47 Subparag. 2, Article 26(1) of the National Sports Promotion Act, and Article 30 of the Criminal Act.

The issuance of tickets is similar to the issuance of tickets), Articles 247, 30 (the occupation of gambling places), 247, 30 (the occupation of gambling places) of the Criminal Act, and criminal proceeds Concealment

Article 3(1)1 of the Act on Regulation and Punishment, Etc. (generally, acquisition of criminal proceeds

section 3(1) of the Act on Regulation and Punishment of Criminal Proceeds Concealment

Article 1 (Fictitious Facts concerning Disposition of Criminal Proceeds)

B. Defendant B

Article 47 Subparag. 2, Article 26(1) of the National Sports Promotion Act, and Article 30 of the Criminal Act.

The issuance of tickets is similar to the issuance of tickets), Articles 247, 30 (the occupation of gambling places), 247, 30 (the occupation of gambling places) of the Criminal Act, and criminal proceeds Concealment

Article 3(1)1 of the Act on Regulation and Punishment, Etc. (generally, acquisition of criminal proceeds

section 3(1) of the Act on Regulation and Punishment of Criminal Proceeds Concealment

Paragraph 1 (Fictitious Facts concerning Disposition of Criminal Proceeds)

1. Competition;

Articles 40 and 50 of each Criminal Code [Violation of the National Sports Promotion Act (Opening of Gambling, etc.)] and the crime of opening of gambling;

Punishment imposed on a violation of the National Sports Promotion Act with heavier punishment (Gambling, etc.)

1. Selection of penalty;

Each Imprisonment Selection

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Confiscation;

Each National Sports Promotion Act Article 51(1) and Act on Regulation and Punishment of Criminal Proceeds Concealment

Article 8(1)

[1] Article 51 (1) of the National Sports Promotion Act provides that the first instance court shall confiscate the claims, etc. mentioned in subparagraph 1, 5, 18, and 22 of the attached Table 2015 (2) to Defendant B pursuant to Article 8 (1) of the Act on Regulation and Punishment of Criminal Proceeds Concealment; Article 51 (1) of the National Sports Promotion Act provides that the above 1, 5, 18, 200 won shall be confiscated from the Incheon District Prosecutors' Office No. 3212 to 6, 41 through 52, 57 (see, e.g., Supreme Court Decision 80Da10500, Oct. 1, 200; Article 51 (2) of the National Sports Promotion Act provides that the above 20-1,000 won shall be additionally collected from the Prosecutor's Office No. 805, Oct. 27, 2007.

1. Additional collection:

(a) Defendant A: Article 51(3) and (1) of the National Sports Promotion Act;

[Defendant A’s main intent is to deduct the part confiscated at the court below’s decision and to calculate a surcharge, and according to the evidence duly adopted and examined by the court below, the investigation agency seized KRW 2.1 million (No. 42,00 won, No. 3311, No. 3311 of the Incheon District Prosecutors’ Office, 2015), which the Defendant recognized as criminal proceeds of the instant case, on August 13, 2015. It is recognized that the passenger car indicated in paragraph (2) was preserved for forfeiture at KRW 1770,000,000 in attached Form No. 2 of the Crimes List (1), 2015,2839 of this Court.

Meanwhile, the Defendant stated that the criminal proceeds including cash confiscated in an investigative agency as above, and the said passenger car preserved for confiscation constitutes “property derived from criminal proceeds” (Article 2 subparag. 3 of the Act on Regulation and Punishment of Criminal Proceeds Concealment), and so long as the Defendant declares confiscation as above, the corresponding amount should be deducted from the amount of additional collection against the Defendant.

Therefore, the amount to be collected from the Defendant is KRW 227, 900, and KRW 000 ( = 400 million - KRW 2.1 billion - KRW 170 million).)

(b) Defendant B: Article 51(3) and (1) of the National Sports Promotion Act;

[1] (1) The Defendant asserts that he is not the actual operator of the instant gambling site, but only received 30% of criminal proceeds from 'YY', which is the actual operator. Thus, in full view of the following circumstances acknowledged by evidence duly adopted and investigated by the court below and the court below, it is reasonable to view the Defendant as the actual operator who directly received the instant gambling site and server from 'YYY', and therefore, the above argument by the Defendant is groundless.

① In this case, the court below stated that “I would like to bring this money to the president (the Defendant’s name)” in the court below’s judgment only from ○○○, A, and Kim○○, and the chief of the office (the Defendant’s name) actually took the words, and “I would like to bring the money,” and “I would like to know that I would like to go to the public.”

② In the lower court’s judgment, “A reported to the Defendant a certain amount of the instant gambling site and the integrated operation and management-based accelerator file to the Defendant each day.” In the prosecution, “The reason for reporting a certain amount of production is due to the fact that the Defendant was the president, and the Defendant issued an instruction to report daily sales,” and “A made a statement at the place of receipt (the evidence of the instant gambling site and the integrated operation and management-based accelerator, 749 pages).

③ In the court below, the Defendant, A, A, B, B, and B, and B, and B, and C, the police officer, who investigated the Defendant’s ○○○○, stated the Defendant’s first statement as the president, but the statement was continuously changed, and all other accomplices who proposed the Defendant were the actual operator of the Defendant, and the Defendant’s “I, B, B, and B, B, and C, I thought that the Defendant was the actual operator of the Defendant, and the Defendant was able to receive a certain amount monthly amount.”

④ Although “○○” was the chief of the police station, he was actually the chief of the police station. In Korea, ○○ stated that it was difficult to give instructions to ○○○○, A, and Kim○, a team leader, to give instructions (Evidence of 2015 Godan5164 case, 664 pages).

⑤ The Defendant stated that the actual operator of the instant gambling site brought about 70% of the proceeds of crime to the actual operator of the instant gambling site only twice, and that he did not present at all the physical personal information of the 'YY', and all other accomplices stated that 'YYY' was not the main part of 'YYYY' (Evidence 750 pages 750 of the evidence record).

6) The Defendant asserts that from 30% of the total proceeds of the crime that he received from “static President” (4.9 billion won), 70 to 12% of the proceeds of the crime to A, 15 to 10% of the proceeds of the crime to Kim○, 5% of the proceeds of the crime to Kim○, and 5% of the proceeds of the 5 to 10% of the 5 to 10% of the Kim○, and 5% of the proceeds of the 5 to 30% of the 5 to 30% of the proceeds of the crime, and 75% of the proceeds of the 70 to 70 billion won of the proceeds of the crime to be paid to the remainder of the team members (3.6 billion won), the criminal proceeds of the Defendant’s acquisition was 1.8 billion won of the proceeds of the crime to be 3.7 billion won of the 1.7 billion won of the judgment below to be acquitted, as seen earlier, 7.8 billion won of the apartment assets purchased by the Defendant under its name.

7) While the Defendant received 30% of the proceeds from the Defendant’s total amount of proceeds of the crime from the “Standing President,” the Defendant asserted that the Defendant sent the entire proceeds to the Defendant’s account of one of the Defendant’s EL Team’s 30% of the proceeds of the crime to the “Standing President,” and that the Defendant received 30% of the proceeds from the Defendant’s EL Team’s account in order to distinguish the proceeds from other illegal sports territory teams under the management of the EL Team from the “Standing President,” the entire proceeds. However, the Defendant did not present data on the details of 30% of the proceeds that the Defendant was returned from the “Standing President,” in the name of the remittance, (Evidence No. 38 to 44), and Lel Team received from the “Standing President,” in view of the total amount of proceeds of the crime.

(2) The Defendant alleged to the effect that the amount of surcharge should be calculated after deducting the portion confiscated at the lower court. According to the evidence duly adopted and examined by the lower court, the investigation agency of Incheon District Prosecutors’ Office, which recognized the Defendant as criminal proceeds of the instant case, seized the evidence No. 3212-2-3, No. 3212-2, No. 6, 41-48 of the pressure of August 19, 2015, and the evidence No. 1, No. 4288-2 of the Incheon District Prosecutors’ Office, on October 22, 2015, and seized the evidence No. 4288-2, No. 1,5,18-22 of the attached list of crimes (2).

On the other hand, the Defendant stated that cash confiscated in an investigative agency as above is criminal proceeds, and the above part preserved for confiscation constitutes “property derived from criminal proceeds” as “property acquired from the disposition of criminal proceeds.” As long as confiscation is sentenced as above, the corresponding amount should be deducted from the amount of additional collection against the Defendant.

Therefore, the amount to be deducted from a surcharge = 2, 161, 871, 05 [2] + 00 won + 20 won + 40 won + 60 won + 10 won + 60 won + 60 won + 60 won + 105 won + 60 won + 60 won + 60 won + 60 won + 60 won + 160 won.

(3) The Defendant asserts that a surcharge should be imposed after deducting the criminal proceeds actually accrued to his accomplice. As such, the purpose of collecting property gains under Article 51(3) of the National Sports Promotion Act is to deprive him of unlawful profits arising from the said criminal act in order to eradicate the criminal act in violation of Article 47 Subparag. 2 of the same Act and prevent him/her from holding them. Thus, where several persons jointly obtain profits from the said criminal act, the amount of money distributed, that is, the actual profits accrued to him/her, should be collected separately. Meanwhile, the expenses incurred by the offender in order to obtain such profits are merely a method of consuming such profits, and thus, it is not merely a method of consuming the criminal proceeds (see Supreme Court Decision 2013Do1859, Apr. 11, 2013, etc.).

원심이 적법하게 채택하여 조사한 증거들을 종합하여 인정되는 아래와 같은 사정들 을 위 법리에 비추어 보면 , 이 사건 범죄수익 중 4억 원은 A에게 , 1 , 597 , 946 , 790원은 반○○에게 , 1 , 597 , 946 , 790원은 김○○에게 , 596 , 167 , 760원은 김○○에게 각 실질적으 로 귀속되었다고 봄이 타당하므로 이를 공제하여야 하고 , 박◎◎ , 김소 , 송○○ , 이© ◎ 이 피고인으로부터 지급받은 월급은 피고인이 이 사건 범죄행위로 취득한 이익을 소 비하는 방법에 지나지 않아 추징할 범죄수익에서 공제할 것은 아니라 할 것이다 . 따라 서 추징금에서 공제하여야 할 금액은 4 , 192 , 061 , 340원 ( = 4억 원 + 1 , 597 , 946 , 790원 + 1 , 597 , 946 , 790원 + 596 , 167 , 760원 ) 이다 .

① 피고인은 2011 . 경 ' 정사장 ' 으로부터 사설 스포츠토토 사이트 ' 엘가 ' 를 임대받아 사무실 관리 , 수익금 정산 , 배분 등 도박사이트의 운영을 총괄하고 , A ( 야간팀장 ) 와 반 OO ( 주간팀장 ) , 김○○ ( 반○○ , A 부재시 업무처리 ) , 김◎◎은 일명 팀장으로서 위 사 이트에 가입된 회원관리 , 수익금 정산 업무를 담당하고 , 박◎◎ , 김소 , 송○○ , 이◎ ◎ 등은 피고인으로부터 매월 급여를 받는 조건으로 위 사이트에서 충전 · 환전 및 게 시판 관리를 담당하였다 ( 2015고단5049 사건의 증거기록 25면 , 72면 )

② Defendant A and Ma○○ began the instant gambling site from the beginning on April 25, 201, with a link that he/she became aware of in the process of a fake covering project, etc., and Kim○ was involved in the instant crime by introducing Ma○○○. Since December 1, 2012, Matri○ took part in the instant crime from around June 19, 2013 to around July 19, 2013, Matri○ was involved in the instant crime (i.e., the instant gambling site from around June 30, 2014 to around June 30, 2014; and (ii) from around June 30, 2014 to around July 30, 2014, Matri○○ took part in the instant crime (Evidence 50499 to the evidence record, 578 to the evidence record, 7545 to the evidence record, 7515 to the evidence of the instant case).

③ The team leader received profits as shares, and the ratio of shares was changed. From around 2012 to around 2012, the first monthly wage of KRW 2.5 million was acquired from around 2015, and from around 2015, Kim ○ appears to have acquired 10% of the profits, and 5% of the profits were acquired from Kim ○, and 836, 381, 651, 651), A acquired 40 million won of the criminal proceeds of this case as seen earlier, as seen in the foregoing, from around 196, 167, 760 won were acquired from the criminal proceeds of this case, and from around 2015 to 97, 97, 167, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, and 97, 97, 90, 97, 97).

④ The Defendant appears to have received the monthly salary of 5 million won (court record 651 pages) from ○○, Macknum, bomb, knick, and Kim Jong.

(4) Accordingly, the amount to be collected from the Defendant is KRW 9, 625, 535, 507 (total proceeds of KRW 15, 979, 467, 905 - Parts 2, 161, 871, 058 - Parts 4, 192, 061, 340) reverted to the accomplices.)

Reasons for sentencing

The instant gambling opening crime is a serious crime that causes serious harm to society, such as promoting a speculative spirit and lowering sound labor awareness, and requires strict punishment in light of the period and scale of the crime. Furthermore, the Defendants received and managed the money by lending the borrowed name account in the name of another person in order to disguise the acquisition of criminal proceeds from gambling, and the nature of the crime, such as transferring a considerable amount to the mutual account in the name of another person or purchasing a car in the name of another person, etc., and concealing criminal proceeds.

It is not good that the Defendants were punished for the same kind of crime, and the Defendants’ age, character and conduct, environment, motive and circumstance leading to the instant crime, circumstances after the instant crime, etc. are determined as follows: (a) in consideration of the Defendants’ age, character and conduct, environment, motive and circumstance leading to the instant crime, etc.

Judge Park Hong-soo

Judges Park Sang-soo

Judges Park Jong-young

1) The Defendant alleged that ○○ acquired 35% of the profits with the same ratio of shares as ○○, but is subject to confiscation and collection.

It does not require strict certification because it does not relate to the facts of the constituent elements of the crime (Supreme Court Decision 7. 2014. 7. 2014).

10. See, 1014Do4708, etc.). The Defendant was an operator who exercises overall control over the instant gambling site, compared to that of the operator who exercises overall control over the instant gambling site, ○○○ is the head of the weekly team.

Inasmuch as there is a difference in the degree of participation in the instant crime, shares equivalent to the ratio of shares of the team leader rather than the Defendant who is the operator.

It is reasonable to view that the ratio was acquired. And the ratio of ratio of ratio of ratio of half ○ is the highest ratio of ratio of ratio of team leader in favor of the defendant.

10% (the ratio of shares of Kim○-○) recognized as 10%.