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The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 3,000,000.
The above fine shall not be paid by the defendant.
Reasons
1. The gist of the grounds of appeal (legal scenarios) is that the lower court omitted the pronouncement of forfeiture in respect of one of the Defendant’s net values used in the instant crime (Evidence No. 1).
2. Determination on the grounds for appeal
A. As confiscation under Article 48(1) of the Criminal Act is discretionary, the issue of whether to confiscate an object subject to confiscation (hereinafter “objects”) is left at the discretion of the court of first instance. However, it is restricted by the principle of proportionality applicable to the general penalty (see, e.g., Supreme Court Decision 2005Do8174, Apr. 24, 2008). In order to determine whether confiscation violates the principle of proportionality, the following should be considered: the degree and scope used in the commission of the crime; the degree and degree of responsibility of the owner of the object; the degree of infringement of legal interests and interests caused by the commission of the crime; the motive for the commission of the crime; the degree of separation of parts related to the commission of the crime; the substantial value of the object; the correlation and balance with the actual value of the object; whether the object is unnecessary to the offender; whether the object is likely to again commit the same kind of crime by using the object; and whether the object is not forfeited or not.
(See Supreme Court Decision 2012Do11586 Decided May 23, 2013). B.
One of the instant articles seized (hereinafter “instant articles seized”) is the articles owned by the Defendant and used for the instant special intimidation. ② In the case of the cases similar to the instant crime, it is common to confiscate the articles provided to the criminal act (in particular, the same shall apply in the case of dangerous articles). ③ The Defendant was sentenced to the suspension of indictment in 2015 due to the crime of bodily injury in 2016, and was sentenced to the dismissal of prosecution due to the crime of assault in 2016, and thus, the risk of recidivism using the seized articles is not confiscated.