Open Decision Ledger · Criminal law
Confiscating the value of rebates jointly obtained by several offenders
Supreme Court, Sept. 7, 2022, 2022Do7911 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 의료법위반
Official text on the National Law Information Center
Question
Where several persons jointly receive an illegal rebate and gain a profit, and the proceeds cannot be confiscated, may the whole value of that profit be confiscated from one of them alone, and how is the amount to be confiscated from each offender determined?
Holding
The purpose of confiscation under Article 88(ii) of the former Medical Services Act is to deprive a person necessarily of the unjust gain from the prohibited rebate-taking, so where several offenders receive the rebate together and the proceeds cannot be confiscated, only the value of the profit each one actually obtained, that is the gain in substance attributable to him, must be confiscated individually. Where the individual amounts cannot be established, the total must be divided equally. On this record the defendant and the co-defendant had plainly received the gain together, and there was no objective material showing how it had been allocated, so the total of KRW 2,511,097 was divided in half and KRW 1,255,548 was confiscated from the defendant.
Points at issue, verbatim
수인이 공동으로 불법 리베이트를 수수하여 이익을 얻은 경우, 그 범죄로 얻은 금품 그 밖의 경제적 이익의 가액을 추징하는 방법
Unofficial English translation
Method of collecting, as additional collection, the value of money, goods, and other economic benefits obtained from the crime, where several persons jointly receive unlawful rebates and gain profits
Disposition
Reversed and rendered by the Supreme Court Stated in the decision
원심판결 중 피고인에 대한 추징 부분을 파기한다. 피고인으로부터 1,255,548원을 추징한다. 나머지 상고를 기각한다.
Unofficial English translation
The portion of the judgment of the court below concerning the additional collection against the defendant is reversed. An additional collection of 1,255,548 won is made from the defendant. The remainder of the final appeal is dismissed.
Form of the test
Elements stated Stated in the decision
공범자 각자가 실제로 얻은 이익의 가액, 즉 실질적으로 귀속된 이익만을 개별적으로 추징하여야 한다.
Unofficial English translation
Only the value of the profits actually obtained by each accomplice, that is, only the profits substantially attributed to each of them, must be collected as additional collection individually.
Factors
- 구 의료법 제88조 제2호에 의한 추징의 취지
- 수인이 공동으로 불법 리베이트를 수수하여 이익을 얻은 경우
- 그 범죄로 얻은 금품 그 밖의 경제적 이익의 가액을 추징하는 방법
Unofficial English translation
• Purpose of additional collection under Article 88, subparagraph 2 of the former Medical Service Act
• Where several persons jointly receive unlawful rebates and gain profits
• Method of collecting, as additional collection, the value of money, goods, and other economic benefits obtained from the crime
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2001. 3. 9. 선고 2000도794 판결, 대법원 2018. 7. 26. 선고 2018도8657 판결 등 참조
Unofficial English translation
See, e.g., Supreme Court Decision 2000Do794 decided March 9, 2001; Supreme Court Decision 2018Do8657 decided July 26, 2018.
Decisions referred to
대법원 2001. 3. 9. 선고 2000도794 판결, 대법원 2009. 5. 14. 선고 2009도2223 판결, 대법원 2018. 7. 26. 선고 2018도8657 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where three or more offenders jointly receive the rebate and their actual shares differ, what evidence must be examined before the total is divided equally?
A later decision on dividing the total among three or more joint recipients would change how this entry is read. Any amendment to Article 88 of the Medical Services Act on confiscation, or a change to the confiscation rules in the Criminal Act, also calls for a fresh reading.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Daejeon District Court, sitting on appeal, in its judgment of 9 June 2022 (2021No114), found that the defendant conspired with the co-defendant and received, from pharmaceutical company sales representative A, an improper economic gain worth KRW 2,511,097, being the purchase costs of hospital promotional items listed at numbers 2, 4 and 5 of the schedule. It confiscated the whole of that sum from the defendant alone, and imposed no separate confiscation on the co-defendant in relation to the same gain.
Supreme Court standard: The Supreme Court held that an appeal against the conviction disclosed no error, but that the confiscation rested on a misreading of the law on confiscation under Article 88(ii) of the former Medical Services Act. It accepted from the record that the defendant and the co-defendant operated the hospital together and received the gain jointly, that the prosecution had itself calculated the confiscation from the two in equal shares when it sought the summary order, and that no evidence showed involvement or distribution to the other doctor employed there from 31 March 2016. Since the individual shares could not be established by evidence, the Court reversed the confiscation part and, applying Article 396 of the Criminal Procedure Act, confiscated KRW 1,255,548 from the defendant itself, dismissing the rest of the appeal.
Distinguishing conditions
- A case in which the proceeds of the rebate can be confiscated, since the rule of individual confiscation applies only where the goods or other economic benefit cannot be confiscated.
- A case in which objective material establishes how much each offender actually obtained, so that no equal division of the total is needed.
- A case in which the benefit was received by one person alone, so that there are no several offenders who received it jointly.
Record verification notes
Set the benefit attributed to each person in the file against the equal division, because the Court divided the total only after finding that the individual shares could not be established by evidence. Confirm whether the total gain can itself be confiscated, and whether the co-defendant's case has become final, since the fixed co-defendant's guilt included the joint receipt. Note also that the decision applied Article 23-3 of the former Medical Services Act, now Article 23-5, and Article 88(ii) as they stood before the amendment of 27 August 2019.
From the official text
Points at issue
구 의료법 제88조 제2호에 의한 추징의 취지 / 수인이 공동으로 불법 리베이트를 수수하여 이익을 얻은 경우, 그 범죄로 얻은 금품 그 밖의 경제적 이익의 가액을 추징하는 방법
Unofficial English translation
Purpose of additional collection under Article 88, subparagraph 2 of the former Medical Service Act / Method of collecting, as additional collection, the value of money, goods, and other economic benefits obtained from the crime, where several persons jointly receive unlawful rebates and gain profits
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결 중 피고인에 대한 추징 부분을 파기한다. 피고인으로부터 1,255,548원을 추징한다. 나머지 상고를 기각한다.
Unofficial English translation
The portion of the judgment of the court below concerning the additional collection against the defendant is reversed. An additional collection of 1,255,548 won is made from the defendant. The remainder of the final appeal is dismissed.
Provisions referred to
구 의료법(2019. 8. 27. 법률 제16555호로 개정되기 전의 것) 제23조의3(현행 제23조의5 참조), 제88조 제2호
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
Back to the ledger