[2] Whether an incomplete hearing of the circumstances may be the ground for appeal in a case where an unfair sentencing cannot be the ground for appeal (negative)

[Dissenting Opinion] Penal provisions should be interpreted in accordance with the principle of prohibition of analogical interpretation or clarity, which is the contents of the principle of no punishment without law. Whether the nature of the additional collection under the Foreign Exchange Control Act is punitive or not should be judged according to the result of the interpretation of the provisions on the additional collection under the Foreign Exchange Control Act. In light of the legislative purpose of the Foreign Exchange Control Act, the reason why the majority opinion emphasizes the character of the punitive punishment on the additional collection in consideration of the legislative purpose of the Foreign Exchange Control Act is not reasonable that it is to regulate the crimes in violation of the Foreign Exchange Control Act and to thoroughly prevent the general public. However, if it is necessary to regulate the crimes in violation of the Foreign Exchange Control Act and to thoroughly prevent general crimes, it is necessary to accomplish the purpose of the additional disposition, and it is not necessary to achieve it, which is merely an additional disposition on confiscation, and it does not go beyond the limit, even if considering the nature or supplement of the additional collection, it is not reasonable to regard the amount of the additional collection to be jointly and severally collected in accordance with the Foreign Exchange Control Act.

[2] The reason why the fact-finding court did not properly examine the circumstances that are the conditions for sentencing is nothing more than the purport of misunderstanding the unfair sentencing, and thus, it cannot be a legitimate ground for appeal.

1. On the first ground for appeal

Article 33 of the Foreign Exchange Control Act provides that foreign exchange and other securities, precious metals, real estate and means of domestic payment acquired by a person who falls under any of the subparagraphs of Articles 30 through 32 shall be confiscated, and if it is impossible to confiscate them, the equivalent value thereof shall be collected. In light of the purport of this provision and the legislative purpose of the Foreign Exchange Control Act (Article 1), confiscation and additional collection under the Foreign Exchange Control Act shall be deemed to have the characteristics of punitive sanctions against criminal facts, unlike the case of the general criminal law. Thus, in case where multiple persons commit an offense in collusion, if it is impossible to confiscate foreign exchange, etc. subject to confiscation, the additional collection shall be ordered against all of the offenders, and if one of them pays the total amount of the additional collection, the other person shall be exempted from execution of the additional collection, or if he fails to pay it, each offender shall be interpreted to have not been exempted from execution of the additional collection (see Supreme Court Decision 81Do1737, Nov. 23, 1982).

Unlike this opinion, the Supreme Court Decision 79Do1847 delivered on April 22, 1980 and the Decision 84Do2747 delivered on March 12, 1985, which expressed the view that the additional collection under the Foreign Exchange Control Act should be collected within the limits of the benefits that the criminal has an intention to deprive the criminal of unjust profits obtained from the criminal act in question.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to collection under the Foreign Exchange Control Act, as otherwise alleged in the ground of appeal.

2. On the second ground for appeal

As to Defendant 1’s imprisonment with prison labor for one year, two years of suspended execution, two years of suspended execution, and two years of imprisonment with prison labor for Defendant 2, and the judgment of the court below that rendered an additional collection against the Defendants, it cannot be considered as the grounds for appeal on the grounds that the amount of the sentence is unreasonable, and the fact-finding court did not properly examine the circumstances that are the conditions for sentencing, and it is nothing more than the purport that the court of fact-finding did not properly err in the unfair sentencing (see, e.g., Supreme Court Decisions 93Do3469, Jan. 25, 1994; 90Do1940, Oct. 26, 1990). The grounds for appeal on this point cannot be accepted.

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench, except for a dissenting opinion by Justice Cho Jong-sung, Justice Jeong-ho, Justice Song Jin-hun, and Justice Song Jin-hun as to the judgment on the part of paragraph (1) above.

4. Dissenting Opinion by Justice Song-sung, Justice Jeong-ho, Justice Park Jong-ho, and Justice Song Jin-hun is as follows.

The majority opinion states that if there are multiple accomplices, it shall be ordered to collect the whole amount of money acquired by them from all accomplices, since the collection of money pursuant to Article 33 of the Foreign Exchange Control Act has the nature of punitive punishment against the crime, the majority opinion shall not agree with the majority opinion. The reasons are as follows.

The majority opinion first examines whether or not the nature of the additional collection under the Foreign Exchange Control Act has the character of punitive sanction, and whether or not it has the nature of the deprivation of profit, and then draws the conclusion that the additional collection should be made jointly and severally against all offenders, considering the nature of the additional collection as punitive action.

However, penal provisions should be interpreted in accordance with the principle of the prohibition of analogical interpretation, which is the contents of the principle of no punishment without law, or the principle of clarity.In order to determine whether the nature of the additional collection under the Foreign Exchange Control Act is punitive or not, it should be judged according to the result of the interpretation of the provisions on the additional collection under the Foreign Exchange Control Act.In other words, whether the nature of the additional collection is punitive or not or not is in a profit-free position should be determined according to the interpretation of the provisions on the additional collection rather than the interpretation of the provisions on the additional collection.

Of course, the teleological interpretation of criminal law should not be entirely excluded. The reason why the majority opinion emphasizes the character of punitive punishment in the collection in consideration of the legislative purpose of the Foreign Exchange Control Act is not reasonable that it is aimed at controlling the criminal in violation of the Foreign Exchange Control Act and thoroughly preventing the general public. However, if it is necessary to control the criminal in violation of the Foreign Exchange Control Act and thoroughly prevent the general public, it is necessary to achieve the purpose of the collection, and it is not necessary to achieve the purpose of the collection as it is merely a conversion disposition for additional confiscation, and it does not go beyond its limit even in light of the nature or supplement of the collection.

According to the majority opinion, if an additional collection is executed for one of the co-offenders who were sentenced to joint and several collection, the remaining criminals will be exempted from the execution within the scope of the additional collection, but this is not consistent with the basic admission and logic of the majority opinion emphasizing the punitive character of the additional collection. In other words, as long as it is deemed that there is a punitive nature for the additional collection under the Foreign Exchange Control Act, the full amount of the value should be collected from all the accomplices.

In addition, if the collection is executed as above, the sentence and execution of the collection are separated, and there is no right to the property subject to confiscation such as ownership, and the principal offender, etc. who takes advantage of the disposal of the property subject to confiscation may be exempted from the execution of the collection. Thus, it cannot be deemed unfair because it goes against the principle of individual punishment.

In addition, according to the majority opinion, if an article subject to confiscation is not seized even though one of the accomplices is clearly owned by another accomplice, if one of the accomplices is to be tried first, it would be difficult to render an additional collection to the one who is under trial first, and it is clear that it is an unfair conclusion.

Therefore, it is not reasonable to regard collection as joint collection under the Foreign Exchange Control Act as joint collection.

Article 33 of the Foreign Exchange Control Act provides that foreign exchange and other securities, precious metals, real estate and means of domestic payment acquired by a person who falls under any of the subparagraphs of Articles 30 through 33 shall be confiscated, and if it is impossible to confiscate them, the equivalent value thereof shall be collected. In comparison with Article 48 of the Criminal Act, which is a general provision on confiscation and collection, the general provision on confiscation and collection, the object of confiscation shall be limited only to "goods acquired by the act of crime" under the latter part of Article 48 (1) 2 of the Criminal Act, and it shall be necessary. And as seen below, unlike the Customs Act, the same provision on confiscation and collection shall apply to confiscation and collection. Accordingly, if the provisions on confiscation and collection under Article 33 of the Foreign Exchange Control Act are interpreted in accordance with the text of the Customs Act, it shall be interpreted that only "the person who acquired foreign exchange, etc. subject to confiscation" shall be interpreted that the person who acquired foreign exchange shall be subject to collection. For example, foreign exchange shall be confiscated only when the person Gap acquires foreign exchange, etc.

This is the representative of joint collection, and it is necessary to compare with the provision on the collection in the Customs Law.

In the past, this Court has expressed the opinion that the full amount of each co-offender should be collected in addition to all co-offenders (see, e.g., Supreme Court Decisions 76Do2024, Aug. 24, 1976; 83Do639, May 24, 1983; 83Do2470, Feb. 28, 1984; 83Do2470, Feb. 28, 1984).

First, the Customs Act requires confiscation and collection of illegal articles as well as illegal articles owned by the offender, but the person subject to collection should be comprehensively separately defined (Article 198(2) and (3)). Even if the offender is not an owner who holds a profit equivalent to the value of the articles, but only holds it, if it is impossible to confiscate it, the amount equivalent to the domestic wholesale price at the time of the crime shall be uniformly collected as the value when it is impossible to confiscate it. In addition, the Customs Act stipulates that the imported or exported prohibited articles shall be confiscated and collected as necessary regardless of whether the offender owns or occupies it (Article 198(1) and (3) and Article 179(1)).

Second, the Customs Act provides that a person who has prepared to commit an offense and a person who has attempted to commit an offense shall be punished as committing an offense (Article 182(2)). The Customs Act provides that a person who has failed to realize any interest due to the failure to complete an offense shall be additionally collected when it is impossible to confiscate an offense (see, e.g., Supreme Court Decisions 90Do1576, Aug. 28, 1990; 96Do199, Oct. 11, 196).

Third, the Customs Act stipulates that a person who has transported, stored, arranged, or appraised an illegal article shall be confiscated or collected as necessary (Article 198(2) and (3) and Article 186), and even if it is merely involved in the distribution stage, regardless of the acquisition of the illegal article from the beginning, the equivalent of the value should be collected if it is impossible to confiscate it.

Although there is no question as to whether the provision on the collection of penalties under the Customs Act and the interpretation of the precedents on such provision can be reasonable in light of the original purpose of the collection of penalties, in light of the contents of the relevant provisions, the purport of the collection of penalties under the Customs Act is that the amount equivalent to the value of the illegal goods should be collected separately from the principal punishment regardless of the owner, mere owner, or possessor, from all criminal involved in the acquisition or distribution of the illegal goods. Therefore, the conclusion that the amount of penalties under the Customs Act should be collected in whole for all of the accomplices involved in the violation of the Customs Act, is clearly significant.

As seen above, the additional collection under the Foreign Exchange Control Act is different from the additional collection under the provisions of the Customs Act. However, in that the additional collection under the Foreign Exchange Control Act is to be collected without considering the existence or absence of the cost or the excess of the cost required to acquire foreign exchange, etc., it is not likely that the nature of the additional collection is disciplinary rather than a stiffing profit. However, even though there is the problem of joint and several collection, it is difficult to derive analogical interpretation of joint and several additional collection even in the case of violation of the Foreign Exchange Control Act, it is not in violation of the principle of no punishment without law.

Therefore, the Supreme Court Decision 81Do1737 Decided November 23, 1982, which has taken a different view, shall be amended, and the decisions that the majority opinion decided to be modified shall be maintained.

In the case of this case, the defendants acquired KRW 1,702,100,00 in Korean won as a result of the crime of this case, and among them, Defendant 1 used KRW 1,656,100,00 in installments, and Defendant 2 consumed KRW 46,00,00 respectively. Thus, the court below should have collected KRW 1,656,10,000 from Defendant 1 according to the amount acquired by the defendants, and KRW 46,00,000 from Defendant 2. However, the court below judged that the defendants were collected in full. The court below erred in the misapprehension of legal principles as to additional collection as prescribed in Article 33 of the Foreign Exchange Control Act, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit, and the part concerning additional collection among the judgment below should be reversed.

Chief Justice Yoon Young-chul (Presiding Justice) (Presiding Justice)