beta
Text
The judgment of the court below is reversed.
Defendant
A, B, and C shall be punished by imprisonment with prison labor for one year and six months, and by imprisonment with prison labor for one year.
Reasons
1. Summary of grounds for appeal;
A. In light of the fact-misunderstanding and the degree of the Defendants’ participation in the crime committed by misunderstanding of the legal principles as to additional collection, the money claimed by the Defendants as benefits received in the course of the crime of this case is a criminal proceeds that have been actually distributed, and thus, the amount of KRW 20 million from Defendant A, B, and C and KRW 15 million from Defendant D, as stated in the original sentence of the lower judgment, shall be additionally collected.
B. The sentence of the lower court’s unfair sentencing (Defendant A, B, and C: one year and six months of imprisonment, three years of suspended execution, three years of community service order, Defendant D’s : one year of imprisonment, two years of suspended execution, and 160 hours of community service order) is too unreasonable.
2. Determination on the misapprehension of the facts and misapprehension of the legal principles as to collection
A. The property acquired by a person subject to punishment pursuant to Article 47 subparagraph 2 of the Act on the Promotion of Sports of the Republic of Korea shall be subject to additional collection pursuant to Article 51 (1) and (3) of the Act on the Promotion of Sports of the Republic of Korea, and where profits are generated from a similar act jointly with several persons, the amount of money distributed, i.e., the profits actually accrued shall be additionally collected.
Meanwhile, inasmuch as the cost spent by an offender to obtain criminal proceeds is merely a method of consuming criminal proceeds even if it was spent from criminal proceeds (see Supreme Court Decision 2017Do9262, Oct. 12, 2017, etc.). (b) Examining the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the lower court in light of the legal principles as seen earlier, the amount claimed by the Defendants to be paid as wages (see, e.g., Defendant A, B: C; KRW 20 million; KRW 15 million; and KRW 15 million) is practically received from the instant crime, and it cannot be deemed that “H” paid criminal proceeds to the Defendants as wages.
Therefore, each of the above amounts from the Defendants.