The appeal is dismissed.

The grounds of appeal are examined.

Since confiscation under Article 48(1) of the Criminal Act is discretionary, whether it is necessary to confiscate an article that meets the requirements of confiscation is left at the discretion of the court (see, e.g., Supreme Court Decision 2000Do515, Sept. 4, 2002). Electronic records are records stored in a certain storage medium by electronic or own means and exist in a storage medium. Thus, electronic records may be confiscated when there are grounds under any subparagraph of Article 48(1) of the Criminal Act.

According to the judgment of the first instance, as cited by the court below, the Defendant, using the recording function of a portable telephone (No. 2; hereinafter referred to as the “instant portable phone”) seized against the victim’s will, found that he/she stored the scene of rape with the victim (hereinafter referred to as the “instant video”).

Examining these facts in light of the aforementioned legal principles, the instant portable phone is “goods provided to criminal acts” as prescribed by Article 48(1)1 of the Criminal Act; the instant video is electronic records stored in the instant portable phone, and falls under “goods generated from criminal acts” as prescribed by Article 48(1)2 of the Criminal Act. In such a case, the issue of forfeiture of the instant portable phone and the instant video is at the discretion of the court, and thus, the court did not confiscate the instant portable phone, but only forfeited the instant video during the instant portable phone.

to the extent that it is illegal.

In the same purport, the lower court erred by misapprehending the legal doctrine on confiscation and destruction, as otherwise alleged in the grounds of appeal, in so determining, the lower court that upheld the first instance judgment that forfeited only the instant videos.

subsection (b) of this section.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.