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The judgment below
The part against the defendant shall be reversed.
A defendant shall be punished by imprisonment for not less than eight months.
except that this judgment.
Reasons
1. According to the summary of the grounds for appeal (misunderstanding of legal principles and improper sentencing) and the evidence submitted by the prosecutor, the lower court erred by failing to additionally collect the profits of KRW 89,210,00 (1,462,50, which was seized at the game machine presumed to be average income x 61 days from January 9, 2017 to March 9, 2017) by the Defendant, even though it is acknowledged that the Defendant had been engaged in the instant crime.
In addition, the sentence of the court below (the imprisonment of eight months, the suspension of execution of two years, the community service work time of 120 hours) is too unhued and unfair.
2. Determination
(a) ex officio determination - The part of confiscation ex officio.
The specific provisions of Article 48(1) of the Criminal Act, for the following reasons, Nos. 1, 6, and 13 of seized evidence are as follows:
Article 48 (Confiscation and Additional Collection) (1) Any of the following articles which is not owned by a person other than an offender or acquired by a person other than an offender with the knowledge of the fact after the crime is committed may be confiscated in whole or in part:
1. A thing which was provided or intended to be provided for a criminal act; 2. A thing which was produced by or acquired by the criminal act; 3. A thing which was acquired in return for the preceding 2; or Article 44(2) of the Game Industry Promotion Act shall be as follows:
Article 44 (Penalty Provisions) (1) Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than five years or by a fine not exceeding 50 million won:
1. One person who causes others to gamble or perform other speculative acts, or leaves others unattended so that they perform such things, in violation of subparagraph 2 of Article 28;
2. A person who encourages speculation in violation of subparagraph 3 of Article 28;
2. A person who commits an act falling under Article 32 (1) 1, 4, 7, 9, or 10;
3. A person who continues to conduct a business even after being subject to measures under each subparagraph of Article 38 (1).