Defendant

Defendant

Park Ho-hoon

Attorney Choi Byung-hee

Gwangju District Court Decision 2005Ra2714 Delivered on December 28, 2005

The part of the judgment of the court below against the defendant is reversed.

Defendant shall be punished by a fine of KRW 10,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

Two days of detention before the pronouncement of the judgment of the court below shall be included in the period of detention in the workhouse.

The seized 5,000 cultural products rights of KRW 5,044 (No. 4 of the Gwangju District Prosecutors' Office 2005 pressure No. 943), 9 copies of daily business statements (No. 10 of the same list), 1 copy of daily revenue bags (No. 13 of the same list) shall be confiscated from the accused, respectively.

To order the defendant to pay an amount equivalent to the above fine.

1. Summary of grounds for appeal by the defendant;

First, the cash confiscated by the Defendant (Nos. 5 through 9, 11, 12 of the above list) is not for use as the exchange fund of the gift certificates of this case, but for use by the Defendant for other private purposes. Thus, the above cash is not for use as the exchange fund of the gift certificates of this case. Thus, the court below erred by misapprehending the legal principles and confiscated the above cash. Second, the sentence imposed by the court below against the Defendant (no. 5 to 9, 11, and 12 of the above list) is too unreasonable.

2. Determination

A. As to the allegation of illegality of confiscation

In light of the records, it is recognized that the cash stored in the exchange center of this case was used for the personal use (debt repayment, living expenses, etc.) of the defendant in addition to the use of the money for ordinary exchange or operating expenses of the exchange center. In light of the above circumstances, it is difficult to view that all of the cash confiscated in the exchange center was intended to provide it to the criminal act of this case. There is no other evidence to acknowledge it, and further there is no part to specify only the part of the cash confiscated in order to provide it to the criminal act of this case among the seized cash, the court below held that the whole cash of this case was subject to confiscation, which affected the conclusion of the judgment.

B. As to the assertion of unfair sentencing

Considering all circumstances revealed in the records, such as the fact that the defendant is the first offender, the period of operation of the money exchange in this case and the operation of the money exchange in this case, the degree of profit, the age, conduct and environment of the defendant, the circumstances surrounding the crime in this case and the result, the punishment of the court below is deemed to be unfair because it is too unreasonable.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following decision is rendered through pleading

As stated in each corresponding column of the judgment of the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 30(1)4 of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, and Article 30 of the Criminal Act.

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges Park Byung-hee (Presiding Judge)