The judgment below

The penalty collection portion shall be reversed.

The judgment below

The defendant's appeal against the remainder is dismissed.

1. Summary of grounds for appeal;

A. In light of the legal principles, the Defendant was merely an employee who received monthly salary from the operator of the gambling site from April 2015 to November 2016, when working as the gambling team member with the introduction of a friendship-friendly R, and the Defendant received a distribution of criminal proceeds.

Therefore, the judgment of the court below which sentenced the collection of 38.8 million won against the defendant is erroneous in the misapprehension of legal principles.

B. The sentence of the lower court’s unfair sentencing (two years of suspended execution in August, and two hours of community service order) is too unreasonable.

2. Judgment on the misapprehension of legal principles

A. Relevant legal doctrine is that property acquired by a person subject to punishment pursuant to Article 47 subparagraph 2 of the National Sports Promotion Act is subject to collection under Article 51 (1) and Article 51 (3) of the National Sports Promotion Act, and the above collection aims to deprive him/her of unlawful profits and prevent him/her from holding it. Thus, in cases where he/she gains profits through a similar act, the amount of money distributed, i.e., the profit actually accrued, should be collected individually.

Meanwhile, inasmuch as the cost spent by an offender to obtain criminal proceeds was merely a method of consuming criminal proceeds even if it was spent from criminal proceeds, it does not constitute a deduction from criminal proceeds to be collected (see, e.g., Supreme Court Decisions 2008Do1312, Jun. 26, 2008; 2015Do3351, Jul. 23, 2015). Therefore, in cases where the principal offender who committed similar acts under the National Sports Promotion Act pays wages to an employee who is an accomplice, if it can be deemed that it was paid as part of distributing criminal proceeds, an amount equivalent to the amount of wages that he/she received from an employee who is an accomplice may be collected as a penalty pursuant to Article 51(1) and (3) of the National Sports Promotion Act.

On the other hand, the principal offender paid wages to employees who are accomplices in order to obtain criminal proceeds simply as part of the cost expenditure.