The judgment below

The part against the Defendants is reversed.

Defendant

A Imprisonment with prison labor of one year and two months, and Defendant B.

1. The summary of the grounds for appeal is unreasonable because each sentence (two years of imprisonment, and eight months of imprisonment) declared by the court below to the Defendants is too unreasonable.

2. Ex officio determination (as to Defendant A), we examine ex officio prior to the judgment on the grounds for appeal by the defendant.

A. Whether the subject of confiscation or collection is subject to confiscation or collection, and the recognition of the amount of collection is not related to the facts constituting the elements of crime, so strict certification is not necessary, but also acknowledged based on evidence, and if it is impossible to specify the proceeds of crime subject to confiscation or collection, it shall not be collected.

(See Supreme Court Decision 2008Do1392 Decided June 26, 2008). On the other hand, the purpose of collecting additional taxes on profits arising from a crime of violation of Article 44(1) of the Game Industry Promotion Act (hereinafter “Game Industry Promotion Act”) is to deprive the defendant of his/her unlawful profits and prevent him/her from holding them. Thus, in cases where the defendant gains profits from a crime of violation of Article 44(1) of the Game Industry Act, only the profits actually accrued to him/her should be confiscated.

In addition, if there is money exchanged to the game users, the profit from the crime is the remainder after deducting the amount of money exchanged to the game users from the sales amount.

(see, e.g., Supreme Court Decision 2014Do4708, Jul. 10, 2014). (B)

The lower court recognized the fact that the Defendant, while operating the game of this case from around December 1, 2014 to February 28, 2015, gains a monthly average of KRW 70 million for three months, and additionally collected the amount of KRW 210 million (70 million x 3 months) from the Defendant.

C. However, the above determination by the court below cannot be accepted for the following reasons.

1) The Defendant stated that “The Defendant operated a game room from November 2014 to March 6, 2015, and sold KRW 210 million during approximately three months (3 months).” However, the Defendant stated that “The sales of KRW 210,000,000 were made during the said game room (the evidence No. 690 of the 2015 Highest 2546 Incident, this is related to the sales of the said game room.”