[1] Whether a person punished pursuant to Article 47 subparagraph 2 of the National Sports Promotion Act is subject to additional collection of property derived from similar acts under Article 51 (1) and (3) of the same Act (affirmative), and where several persons jointly benefit from similar acts, whether the allocated amount should be collected separately (affirmative)

[2] The case holding that in a case where the defendant, who served as a broker for the operation of the gambling site with Gap et al., offered a so-called general book Eul et al. to use for opening and operating the gambling site, and thereby, the defendant was indicted for committing the crime of violating the National Sports Promotion Act (Gambing, etc.) in collusion with Gap and the above gambling site operators, and found him guilty, in light of all the circumstances, the profit gained by Gap et al. in return for the provision of the gambling site shall not be deemed to have been distributed after committing the crime of violating the National Sports Promotion Act (Gambing, etc.) jointly with the gambling site operators, since it is difficult to view that the defendant et al. committed the crime of violating the National Sports Promotion Act (Gambing, etc.) and distributed profits, collection from the defendant is not allowed

[1] Article 47 subparagraph 2 of the National Sports Promotion Act provides that property acquired by a person subject to punishment pursuant to similar acts shall be subject to additional collection pursuant to Article 51 (1) and (3) of the same Act, and the above additional collection aims to deprive him/her of his/her unlawful benefits and prevent him/her from holding it. Thus, where he/she gains profits through similar acts jointly by several persons, the amount of money distributed, i.e., the profit actually accrued to him/her, shall be additionally collected. Meanwhile, in order to obtain criminal proceeds, the expenses disbursed by the offender are only a method of consuming criminal proceeds, even if they were disbursed from criminal proceeds, and thus, it shall not

[2] In a case where Defendant (a) and B, etc., who serve as a part of the operation of the gambling site with Gap et al., provided the so-called gambling passbook, and as a result, Defendant conspired with Gap and the above gambling site operators to commit a crime of violating the National Sports Promotion Act (gambling, etc.), and was convicted of having committed a violation of the National Sports Promotion Act, the case affirming the lower court’s judgment holding that: (a) in light of all circumstances, Defendant and Gap transferred the means of access to the gambling site operators; (b) it is reasonable to view that the cost spent by the gambling site operators for committing a crime was the profit gained by Defendant et al. as a violation of the Electronic Financial Transaction Act; and (c) it is difficult to view that Defendant et al. received profits after committing a crime of violating the National Sports Promotion Act (gambing, etc.) jointly with the gambling site operators; and (d) thus, (e) it is not allowed to additionally collect money from Defendant 51(3) and (1) thereof.

[1] Articles 26(1), 47 subparag. 2, and 51(1) and (3) of the National Sports Promotion Act / [2] Articles 26(1), 47 subparag. 2, and 51(1) and (3) of the National Sports Promotion Act

[1] Supreme Court Decision 2008Do1312 Decided June 26, 2008 Supreme Court Decision 2015Do3351 Decided July 23, 2015

Defendant

Defendant

Attorney Lee Im-soo

Ulsan District Court Decision 2019No909 decided January 23, 2020

The collection part of the judgment below shall be reversed, and that part of the case shall be remanded to the Ulsan District Court.

The grounds of appeal are examined.

1. As to the violation of the National Sports Promotion Act (Gambling place, etc.)

On the grounds indicated in its reasoning, the lower court convicted the Defendant of violating the National Sports Promotion Act. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the establishment of crimes violating the National Sports Promotion Act (Gambling, etc.),

2. As to the collection

A. A. A person punished pursuant to Article 47 subparag. 2 of the National Sports Promotion Act is subject to additional collection pursuant to Article 51(1) and (3) of the National Sports Promotion Act for property acquired through similar acts, and the above additional collection is intended to deprive him/her of and not to hold it. As such, where several persons jointly gain profits by engaging in similar acts, the amount of money distributed, i.e., the profits actually accrued shall be additionally collected. Meanwhile, in order to obtain criminal proceeds, the expenses incurred by the offender are merely a method of consuming criminal proceeds even if they were disbursed from criminal proceeds, and thus, it does not constitute a deduction from criminal proceeds (see, e.g., Supreme Court Decisions 2008Do1312, Jun. 26, 2008; 2015Do351, Jul. 23, 2015).

B. Of the facts charged in the instant case, the summary of the fact that the National Sports Promotion Act was violated (gambling, etc.) and the opening of gambling spaces is as follows. The Defendant served as a person who provided a large passbook necessary for the operation of the gambling site with Nonindicted Party 1, etc., and Nonindicted Party 2, Nonindicted 3, etc., the so-called general book, from June 2017 to May 2018, opened and operated the so-called “○○○” and “△△△△△”, which is the illegal sports soil site, provided a large passbook for use in the operation of the said gambling site. Accordingly, the Defendant conspired with Nonindicted Party 1, Nonindicted 2, and Nonindicted 3, etc., in collusion with the Seoul Olympic Sports Promotion Foundation and the entrusted business entity, opened a gambling space for the purpose of making profits.

In relation to the facts charged, the lower court determined that it was justifiable for the first instance court to have collected 47,8930,000 won, which was 1/300,000 won from the Defendant, from the Defendant, as long as the Defendant was held liable as a co-principal with respect to the operation of illegal gambling sites, pursuant to Article 51(3) and (1) of the National Sports Promotion Act.

C. However, the lower court’s determination is difficult to accept for the following reasons.

1) According to the evidence duly admitted by the lower court, the following facts and circumstances are revealed.

A) Upon Nonindicted 2’s request, the Defendant and Nonindicted 1, etc.: (a) calculated 1.5 million won per month of the presidential passbook from June 2017 to June 2018; and (b) received KRW 1.5 million per month from June 2017 to June 2018; and (c) received a maximum of KRW 86.9 million in total for the above period.

B) On the contrary, the net profit acquired by Nonindicted 2, etc., a general book, by committing a crime, is considerably different from the amount acquired by the Defendant, Nonindicted 1, etc., in the amount of KRW 95 million per month.

C) Meanwhile, the Defendant and Nonindicted Party 1, etc. obtained a total of KRW 1.43368 million in return for the provision of the passbook. However, it includes not only the profits from the crime committed in collusion with Nonindicted Party 2, etc., but also the profits from the provision of the passbook in connection with other crimes for which the public prosecution was not instituted.

D) Nonindicted 1 made a statement at an investigative agency as the Defendant’s share ratio of the above profits was 1/3, but reversed the statement that was 20%, and the Defendant was given a statement that was 20% distributed, and reversed the statement that was 30 million won in total.

2) Examining the above facts and circumstances in light of the legal principles as seen earlier, it appears that the Defendant and Nonindicted Party 1, etc. transferred the means of access to the gambling site operator and obtained the ratio of the number of the means of access multiplied by a certain amount. This is reasonable to deem that the cost incurred by the gambling site operator for committing the crime is the profit that the Defendant, etc. obtained by committing the crime in violation of the Electronic Financial Transactions Act. It is difficult to deem that the Defendant, etc. committed the crime in collaboration with the gambling site operator and distributed the profit therefrom. Ultimately, the collection under Article 51(3) and (1) of the National Sports Promotion Act is not allowed from the Defendant (and it is also pointed out that the lower court erred by recognizing that the Defendant’s profit distribution ratio was 1/33,000 won exceeding the actual amount received from Nonindicted Party 2, etc. in calculating the amount of additional collection against the Defendant).

D. Nevertheless, the lower court collected KRW 477,8930,000 from the Defendant on the grounds of Article 51(1) and (3) of the National Sports Promotion Act. In so doing, the lower court erred by misapprehending the legal doctrine on the calculation of the amount of additional collection and the amount of additional collection under Article 51(1) and (3) of the National Sports Promotion Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

3. Conclusion

Therefore, the part of the lower judgment regarding collection is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)