Case number: [Supreme Court Dec. 29, Sentence, 2022Do8592, Judgment] Opening gambling space.
Article 8 of the Act on the Regulation, Punishment, etc. of Concealment of Crime Proceeds (Miscarriage of Crime Proceeds, etc.)
① The following property may be confiscated:
1. Proceeds from crime
2. Property derived from criminal proceeds
Profits from opening a gambling house = proceeds from crime
Profits from gambling = proceeds from crime
Judgment = Only profits from opening a gambling house can be confiscated/collected.
Why? = Confiscation/collection is only possible when a prosecution is filed, but a prosecution has been filed against the opening of a gambling house, but there is no content in the facts charged to confiscate/collect profits obtained from gambling. (Definite principle)
The principle of infidelity: The principle of infidelity (Nemo iudex sine act) is a concept of litigation law and is a basic principle of partyism that judges do not intervene in facts that are not claimed between litigants. It is also called claims justice. (Source: Wikipedia)
In the case, it was recognized that the defendant opened a gambling space and participated in gambling to earn criminal profits. The indictment was found guilty, and the question was whether the defendant would collect the profits from participating in the gambling himself.
In order to sentence confiscation and collection based on the proviso to Article 49 of the Criminal Act, it is an active principle that the requirements for confiscation and collection must be related to the fact of charge in which the prosecution was filed. From the court's point of view, there is no separate system to sentence confiscation and collection without filing a prosecution, and the principle that the requirement for confiscation and collection should be related to the prosecution in which the prosecution was filed is emphasized.
In addition, it was emphasized that the crime of opening a gambling place and the crime of gambling are separate and independent crimes, and the profits earned by the person who opened the gambling space are included in the profits indirectly obtained through the opening of the gambling space. Based on this, one of the purposes of this precedent is to provide a legal example by clarifying the legal principles on additional collection and providing the basis for the court's judgment.
Therefore, in this case, the core problem of this case was that the criminal proceeds from the opening of the gambling space and the criminal proceeds obtained by participating in direct gambling should be collected separately. The Supreme Court ruled that only criminal proceeds from the opening of a gambling space can be collected, and profits obtained from the Defendant's direct participation in gambling should be excluded from the collection.