The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for a term of one year and two months.

except that, for two years from the date this judgment becomes final and conclusive.

Summary of Grounds for Appeal

A. The sentence of the lower court (one year and six months of imprisonment, three years of suspended execution, and 120 hours of community service) is too unreasonable.

B. Prosecutor 1) A mobile phone that has been mistakenly seized (Evidence 1; hereinafter “instant mobile phone device”).

(2) The court below erred by misapprehending the facts and adversely affecting the conclusion of the judgment, which affected the conclusion of the judgment, on the ground that the court below’s sentence of unreasonable sentencing is too uneasible to the crime of this case.

2. Judgment on the prosecutor's assertion of mistake of facts

A. Since confiscation under Article 48(1)1 of the Criminal Act is discretionary, the issue of whether to confiscate even an article that meets the requirements for confiscation is left to the discretion of the court of first instance.

However, it is restricted by the principle of proportionality as applied to the general penalty.

In order to determine whether confiscation violates the principle of proportionality, all the circumstances should be taken into account, such as the degree and scope used in the commission of the crime and the importance of the crime; the role and degree of responsibility of the owner of the object in the commission of the crime; the degree of infringement of legal interests and interests caused by the commission of the crime; the motive of the commission of the crime; the profit from the crime; the separate possibility of the part related to the commission of the crime among the object, the substantial value of the object and the relation and balance with the crime; whether the object is not necessary for the actor; and if the object is not confiscated, whether the actor is likely to re-

(see, e.g., Supreme Court Decision 2012Do11586, May 23, 2013). B.

According to the evidence duly adopted and examined by the court below, the cell phone of this case was used by the defendant to be instructed by the Defendant from the scaming staff in his name.