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The judgment below
Among them, the part of additional collection against Defendant A shall be reversed.
Defendant
A 6,959,500 won shall be additionally collected.
Reasons
1. Summary of grounds for appeal;
A. Defendant A1) The Defendant did not engage in the instant game room continuously for 48 days from February 2, 2017 to March 21, 2017. The lower court calculated a surcharge on the premise that the Defendant continued to operate the instant game room for 48 days.
B) The daily average sales of the game site of this case, which the Defendant stated in the telephone call with prosecution investigators, cannot be used as data for calculating the surcharge, as it is merely a rough and presumed statement, and there is no objective data for calculating the surcharge, such as the division of the place of business.
C) Since the daily average sales of the game of this case, which the Defendant stated as above, include sales through normal business, it is possible to collect only the profits earned by the Defendant by issuing free vouchers to some customers and neglecting speculative acts among the above daily average sales.
2) The sentence of the lower court’s unfair sentencing (2 years of suspended sentence for 8 months of imprisonment, protection observation, community service, confiscation, additional collection KRW 7,159,50 of imprisonment) is too unreasonable.
B. Defendant B (unfair sentencing)’s sentence of the lower court (in 4 months of imprisonment, 2 years of suspension of execution, observation of protection, community service, and confiscation) is too unreasonable.
2. Determination
A. The lower court determined as to Defendant A’s assertion of misunderstanding of the facts or misapprehension of the legal doctrine 1) based on the Defendant A’s statement (i.e., 172-173 pages of investigation records) to the effect that “the head of the instant game was operated from February 2, 2017 to March 21, 2017,” and that “the average sales of the instant game site are KRW 200,000 to KRW 300,00” was collected as additional collection from Defendant A and Prosecution investigators (228 pages of investigation records) and the investigation report (29 pages of investigation records) based on the telephone conversations (229 pages of investigation records) of the prosecution investigator and the relevant investigation report (229 pages) (=9,500 won) (=9.6 million won) from February 2, 2017 to March 21, 2017 x KRW 200,500).
(ii)..