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The prosecutor's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. Although the lower court found the Defendant guilty of all the facts charged in the instant case, it did not additionally collect KRW 1,423,90,000 that the prosecutor tried to impose on the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on additional collection, thereby affecting the conclusion of the judgment
B. The sentence of the lower court’s unfair sentencing (two years of suspended sentence in October, and two hundred hours of community service order) is too uneasy and unreasonable.
2. Determination
A. Article 8(1) of the Act on the Regulation and Punishment of Concealment of Criminal Proceeds as to the argument of misunderstanding of legal principles provides that "criminal proceeds, etc. may be confiscated" and Article 10(1) of the same Act provides that "where it is deemed inappropriate to confiscate property to be confiscated pursuant to Article 8(1), or where it is deemed inappropriate to confiscate the property due to the nature of the property, the situation of its use, the existence of a right to the property other than the criminal, or other circumstances, the equivalent value may be collected from the criminal." Thus, the confiscation or additional collection pursuant to the above provision is not necessary but discretionary since the confiscation or additional collection is not necessary, and thus, the court failed to declare additional collection based on the above provision.
Therefore, it cannot be viewed as unlawful in itself.
According to the records of this case, although the sales proceeds from the instant crime exceed 1.4 billion won, this case held that the Defendant’s sales after purchasing the products made by the opticaldong Pharmaceutical Co., Ltd. from the Minedong Life Health Co., Ltd. is much less than the sales proceeds that the Defendant actually acquired, such as paying a considerable amount of expenses incurred in purchasing the products, etc., and the Defendant appears to have refunded the amount equivalent to KRW 248,874,00 as of April 30, 2016 to the buyer. Considering the above circumstances, the lower court’s measures against which the Defendant was not sentenced to the collection on behalf of the Defendant cannot be said to be unlawful.
Therefore, the prosecutor's argument of misapprehension is justified.