beta
Text
The judgment below
Of them, the part on Defendant B shall be reversed.
Defendant
B A person shall be punished by imprisonment for not more than four months.
except that this judgment.
Reasons
1. The summary of the grounds for appeal by the Defendants is too unreasonable that the sentence of the lower court (two years of suspended sentence in June, eight hours of community service, two years of suspended sentence in April, and confiscation) is too unreasonable.
2. Determination
A. We examine ex officio the judgment on the grounds of appeal by Defendant B prior to the judgment on the ex officio decision on the grounds of appeal by Defendant B.
The court below ordered that two seals seized by Co-Defendant C’s crime of forging the seal shall be confiscated from Defendant B who was holding the seal and submitted to the investigation agency.
However, Defendant B was prosecuted not only for the crime of the above seal deliberation but also for a separate charge of the interference with public tender. In the judgment of the court below, Defendant B was guilty of the crime of the interference with tender, and there was no prosecution as a charge of the crime of the interference with tender in the above C’s seal deliberation.
The proviso of Article 49 of the Criminal Act provides that even if a judgment of conviction is not rendered against an accused, confiscation may be ordered if the requisites for confiscation exist. However, in order to confiscate confiscation, the requirement of confiscation should be related to the facts charged for which a public prosecution was instituted (see, e.g., Supreme Court Decision 2009Do11732, May 13, 2010). As to the defendant who did not institute a public prosecution as an accomplice for the facts constituting a separate crime of another co-defendant, the confiscation of the goods may not be ordered solely on the ground that he/she was holding the goods generated from the crime.
Therefore, the judgment of the court below is erroneous in the misunderstanding of legal principles as to confiscation, which affected the conclusion of the judgment, on the ground that Defendant B, who is not related to the crime of the seal appropriation.
B. Defendant A’s judgment on the assertion of unfair sentencing by Defendant A recognizes the instant facts charged, and the above.