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The judgment below
Part concerning Defendant B and C shall be reversed, respectively.
Defendant
B Imprisonment with prison labor for not less than five months, and Defendant C.
Reasons
1. The summary of the reasons for appeal against the Defendants is that each of the punishments of the lower judgment against the Defendants (Defendant A: 2 years of suspended sentence of imprisonment for one year; 160 hours of community service, confiscation; 39,842,00 won of confiscation; 490,000 won of imprisonment for six months and additional collection; 2 years of suspended sentence of imprisonment for ten months; 120 hours of community service; 24,480,000 won of additional collection) is too unreasonable.
2. Before the judgment on the grounds of ex officio appeal, the court below ex officio examined the following facts: (a) calculated the additional collection charge against Defendant A, the monthly rent (130,000 won per month) and other expenses (2,00,000 won per month) of the game room and the daily allowance (330,000 won per day) paid to the employees; (b) among the daily amount deducted from the above Defendant’s additional collection charge, only the above part of the daily amount paid to Defendant B (70,000 won per day) and C (120,000 won per day) was collected from the above Defendants on the grounds that the above Defendants received the distribution of profits according to the daily settlement on that day.
However, it is reasonable to see that daily allowances paid to a certain amount, regardless of different profits, are simple benefits rather than the distribution of profits according to the fixed amount. The wages paid to employees (see Supreme Court Decision 2007Do830, Dec. 13, 2007), game funeral rent (see Supreme Court Decision 2009Do2223, May 14, 2009), public charges or management expenses (see Supreme Court Decisions 2007Do4048, Aug. 24, 2007; 2009Do586, Sept. 10, 209) such as taxes paid in the course of the game room business (see Supreme Court Decisions 2007Do4048, Aug. 24, 2007; 2009Do5886, Sept. 10, 209; 2006Do746, Jun. 26, 2006).