The judgment below

The part against the defendant shall be reversed.

A defendant shall be punished by imprisonment for one year.

Seized No. 1.

1. Summary of grounds for appeal;

A. The evidence presented by the prosecutor as to the calculation of the surcharge is insufficient to determine the criminal proceeds of the defendant. Thus, the lower court’s calculation of the surcharge is unlawful.

(b) The amount of sentencing (the original trial: imprisonment for one year, confiscation, additional collection of one thousand won); and

2. Determination as to the assertion on the calculation of the surcharge

A. Whether the subject matter of relevant statutory forfeiture or collection is subject to, or the recognition of the amount of collection, etc. is not related to the facts constituting the crime elements, and thus, it is not necessary to prove strict facts, but also recognized by evidence. However, if it is impossible to specify the criminal proceeds subject to forfeiture or collection, it cannot be collected additionally.

(See Supreme Court Decision 2008Do1392 Decided June 26, 2008). On the other hand, the purpose of collecting additional taxes on profits arising from a crime of violation of Article 44(1) of the Game Industry Promotion Act (hereinafter “Game Industry Promotion Act”) is to deprive the defendant of his/her unlawful profits and prevent him/her from holding them. Thus, in cases where the defendant gains profits from a crime of violation of Article 44(1) of the Game Industry Act, only the profits actually accrued to him/her should be confiscated and collected.

In addition, if there is money exchanged to the game users, the profit from the crime is the remainder after deducting the amount of money exchanged to the game users from the sales amount.

(See Supreme Court Decision 2012Do7843 Decided September 27, 2012 and Supreme Court Decision 2014Do4708 Decided July 10, 2014, etc. (see, e.g., Supreme Court Decisions 2014Do4708, Jul. 10,

The lower court determined that the daily sales of the game of this case by the Defendant, Co-Defendant B, and Co-Defendant C, based on each statement made by the investigative agency, are the criminal proceeds acquired by the Defendant by deducting the amount equivalent to the money exchanged to the game users from the amount remaining after deducting the amount. The lower court collected the amount of KRW 148 million by multiplying the business period by 74 days (=2 million x 74 days) from the Defendant.

C. The records of this case are examined as follows.