The prosecutor's appeal is dismissed.

The judgment below

The term "application of statutes" means "1. Suspension of Execution, Article 62 (1) of the Criminal Act."

Summary of Grounds for Appeal

A. The court below erred by misapprehending the legal principles and collected only KRW 20 million from the defendant, excluding KRW 50 million, which was used in performing the obligation of H, among KRW 70 million delivered by M to H by requesting the defendant and L to deliver it to H. The defendant. The above KRW 50 million was used in performing the obligation of J according to the defendant's independent judgment, and it was not used in performing the obligation of J, and it was not used in accordance with the purport of receiving the above amount from the delivery. Thus, the above KRW 50 million collected by the court below, in addition to KRW 20 million, should be collected from the defendant.

B. The lower court’s sentence of unreasonable sentencing (two years of imprisonment, three years of suspended sentence, three years of probation, community service, 160 hours, additional collection 20 million won) is too uneased and unreasonable.

Judgment

A. In a case where the property or property gains acquired by an offender in accordance with the purport of receiving the property or property gains acquired by an offender as to the assertion of misapprehension of legal principles are delivered to another person according to the purport of the receipt, that part of such benefits is not substantially attributable to the offender, and thus, it cannot be confiscated or collected from the offender (see, e.g., Supreme Court Decision 2002Do1283, Jun. 14, 2002). However, even where the property or property gains acquired by the offender are used for the benefit of a person who acquired property or property gains, if the detailed use was not delivered to another person according to the purport

(See Supreme Court Decision 2006Do3615 Decided March 13, 2008. Determination based on the above legal principle, and the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, namely, ① the Defendant was in charge of various duties as an election campaign manager after the former G market H was registered as a candidate for the G market; ② the Defendant was in charge of various cases and financial affairs related thereto after the said H was elected to the G market; ② the H’s management department borrowed the H’s election campaign period around August 27, 2010.