The judgment below

The part of the confiscation against the defendant is reversed.

Nos. 1 through 11, 13, 14 and this Court.

1. Of the part of the forfeiture of the Defendant of the lower judgment, subparagraph 12 of the ground for appeal (Partial misunderstanding of legal principles among confiscation) is not subject to forfeiture.

2. Determination

A. The lower court cited Article 44(2) of the Act on the Promotion of Game Industry as a ground for forfeiture of subparagraph 12 of the evidence seized against the Defendant.

Article 44(2) of the Game Industry Promotion Act provides that “The game products owned or occupied by a person who exchanged the result obtained through the use of game products, profits generated by such criminal acts, and property derived from such criminal proceeds shall be confiscated,” and Article 48(1)1 and 2 of the Criminal Act on voluntary confiscation provides that “the whole or part of the things provided or intended to be provided for criminal acts and the things obtained by such criminal acts may be confiscated.”

B. Items 12 (T) that have been seized cannot be deemed as “game products, profits generated by the criminal act, and property derived from the criminal proceeds,” which were seized and seized by the Defendant at ordinary times.

Meanwhile, since the confiscation under Article 48(1) of the Criminal Act is voluntary, the issue of whether the confiscation of the goods subject to the confiscation (hereinafter “goods”) is subject to the discretion of the court. However, it is restricted by the principle of proportionality applicable to the general penalty (see Supreme Court Decision 2005Do8174, Apr. 24, 2008). According to the records, the defendant sent a certificate No. 12 during the crime of this case to A and A, the operator of the game room, and sent another employee B with U.S. business day.

However, the above mobile phone is not used only for the crime of this case, but for the business of a separate game room.