[특정범죄가중처벌등에관한법률위반·범죄단체조직·공무집행방해·관세법위반·특수공무집행방해·폭력행위등처벌에관한법률위반][집24(3)형,87;공1976.12.15.(550),9500]
The crime is committed against a person who commits the crime by carrying a deadly weapon or other dangerous articles under the latter part of Article 3 (1) of the Punishment of Violences, etc. Act.
In relation to the provision of Article 3 (2) of the Punishment of Violences, etc. Act, it is evident that the crime is not limited to the case where the crime of this Article is committed habitually under Article 2 (1) or at night under Article 2 (2) of the same Act in the case where the crime of this Article is committed with a deadly weapon or other dangerous articles under the latter part of Article 3 (1) of the same Act.
Defendant 1 and seven others
Prosecutor (Defendant 1, 2, 3, 4, 5, 6, 8 and Defendants (Defendant 5, 7)
Attorney Kim Yong-sik (Defendant 1, 2, 3, and 6) (Defendant 4, 5) Attorney Kim Jong-sik (Defendant 1, 2, 3, 4, 56, 7, 8) (Defendant 1, 2, 4, 56, 8)
Gwangju High Court Decision 76No263 delivered on July 20, 1976
1. Of the non-guilty portion against Defendant 5 and 4, the part of the judgment of the court below as to the fact that between May 4, 1974 and August 28, 1975, 3, 14, 170 television television numbers on a 18-day basis, 17-day-day-day-day-day-day-day-day-day-day-day-day-day-day-day-day-wide-day-day-day-wide-day-wide-day-wide-day-wide-day-wide-day-wide-day-wide-day-day-wide-day-wide-wide-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-of-case-type-type-type-type-type-type-type-type-type-type-of-
2. Prosecutor’s remaining appeals except the above reversed part against Defendant 5 and 4, and Prosecutor’s appeal against Defendant 7, 6, 1, 2, 3, and 8 and Defendant 7’s appeal are all dismissed.
1. As to the grounds of appeal No. 4 (the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. on the Aggravated Punishment, etc. of Specific Crimes, etc. on the Aggravated Punishment, etc. of Specific Crimes) against Defendant
Defendant 5 and 4: (a) The court below held that there were no confidential information about the size of Nonindicted Party 5’s 17.4 and 17.5 meters away from the 5-meter wide-scale and 5-meter wide-scale and 5-meter high-level 444. The court below held that there were no confidential information about Defendant 1’s 6-meter wide-scale and 5-meter wide-scale and 5-meter high-level 14444. The court below’s decision was 6-meter high-scale and 5-meter high-level 7. The court below’s decision was 6-meter high-level and 5-meter high-level high-level 17. The court below’s decision was 6-meter high-level and 5-meter high-level 14. The court below’s decision was 6-meter high-level and 5-meter high-level 14. The court below’s decision was 6-meter high-level and 5-meter high-level 15.
However, the court below's determination that the size of 128/100 wide width and 50/30 high height of 128/3 wide width is clear shall be calculated by inserting dazine 2, 2, and 8 Doz. Doz. (2 x 2) across the street, Doz. (2 x 2) at the height of Doz., and it shall be determined by the court below that Doz. (2 x 2 x 2) in light of the width and height of the above secret warehouse and the size of Doz. (2 Doz. Doz.) in the same manner as above, the court below rejected the judgment of the court below that it is hard to find that there were no errors in the misapprehension of the rules of evidence as to the suspect's Doz.
2. We examine the prosecutor's grounds of appeal Nos. 6 and (the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes against Chapter 1 and Chapter 1 inclusive) against the defendant 5.
The judgment of the court below is reversed the judgment of the court of first instance that found Defendant 5 guilty of evading customs duty of 12,090 won by fraudulent means, and the witness's testimony at the court of the second instance and the court of the first instance that found the witness guilty of evading customs duties of 12,090 won on the ground that the witness 5 habitually asked the witness of the court of first instance to ask him to the non-indicted 2 departing from Japan on December 1974 and asked him to the non-indicted 1 to leave Japan, and the defendant 5 used him as a gift to the above 5,00 won in Japan, and the defendant 5's first instance court and the witness's testimony at the court of the second instance and the court of the first instance, provided that the witness 5 was not guilty of the facts charged, and if the witness 5 used it as a gift to the defendant 5, the defendant 5's first instance court and the defendant 5's first instance court did not import the article, and it did not appear to have any other article.
However, if Defendant 5 asked Nonindicted Party 2, the crew member of the Republic of Korea, to see Chapter 1 and Chapter 1, and accordingly, the delivery of Nonindicted Party 2 was made by smuggling import to Japan, Defendant 5 cannot be readily concluded whether Defendant 5 asked Nonindicted Party 2 to any motive in any circumstance, and offered to Nonindicted Party 2 through any channel. However, even though it cannot be determined whether Defendant 5 conspired to import it, it cannot be said that Defendant 5 received a gift from Non-Indicted Party 2 as a gift without any deliberation and determination as to this point, it cannot be said that Defendant 5 was found to have committed an unlawful act without specifying the reasons, and that such unlawful act affected the conclusion of the judgment. Accordingly, the appeal pointing this out has merit.
3. We examine the Prosecutor’s ground of appeal No. 1 against Defendant 5.
We examine the reasoning cited by the judgment of the court below in light of the records and examine the reasons indicated by the court below, and find out there was no error of law in rejecting admissibility of evidence on the ground that the contents of the statement do not conform to objective facts, even if the voluntary nature of the suspect's interrogation protocol against the defendant 5 in the preparation of the prosecutor, or the admissibility of evidence is extremely doubtful, and there is no error in the measure of rejecting probative value on the ground that the contents of the statement do not conform to objective facts, and it is obvious that it is the purport of rejecting probative value of the suspect's interrogation protocol against the non-indicted 2 in the preparation of the prosecutor, or the witness interrogation protocol against the non-indicted 2 in 75 seconds361 in the preparation of the prosecutor, not against the admissibility of evidence, but against the intention of rejecting its probative value. Therefore, there is no reason to argue in the dissenting opinion.
4. We examine the second ground for appeal.
1. There is no violation of the rules of evidence against the measures against the rules of evidence that reject the admissibility of evidence on the suspect's investigation report prepared by the prosecutor against the defendant 5, and even if the admissibility of evidence is denied on the party whose admissibility is denied, it does not affect the conclusion of the judgment even if there is any error as argued in the family arguments subsequently at the home that denies the admissibility of evidence, and it does not affect the judgment, and there is no error of law as argued by the court below as a result of the examination of the written indictment against the defendant 5.
2. The contents of the suspect interrogation protocol or the witness interrogation protocol with respect to Nonindicted 2 in the public prosecutor’s preparation include all the statements from the speech. In a case where it is denied that there is no end to Nonindicted 2 at the time of witness interrogation, the part concerning the statement of objection among the suspect interrogation protocol or witness interrogation protocol with respect to Nonindicted 2 is inadmissible as hearsay evidence. Thus, the judgment of the court below stated to the same purport is just and it is not erroneous in the misapprehension of legal principles as to the admissibility of hearsay evidence. The arguments are groundless.
5. We examine the Prosecutor’s grounds of appeal No. 5 against Defendant 5, 6, 1, 2, 3, and 8
The court below rejected the admissibility of evidence on the reasons stated by the prosecutor, on the grounds that the voluntary nature of Defendant 9's written statement of Defendant 1, 2, 3, and 8 against Defendant 1, 2, 3, and 8's written testimony of Defendant 5 and 9's written testimony of Defendant 9 was extremely doubtful. The court below rejected the admissibility of evidence on the grounds that each suspect's written testimony of Defendant 1, 2, 3, and 8's written testimony of Defendant 1, 2, 8's written questioning of Defendant 9 and the witness questioning of Defendant 75 seconds-457's written testimony of Defendant 9, but the court below rejected the probative value on the grounds that there was a violation of the rules of evidence or an error of law by misunderstanding the legal principles on admissibility of evidence as alleged in the arguments. In light of the size of the ship transported by the court below, the court below erred in its determination that it is improper to import 50 television water on the above ship after loading it, which affected the judgment after the legitimate rejection of evidence.
6. We examine the Prosecutor’s ground of appeal No. 7 as to Defendant 5, 6, 1, 2, 3, and 4
In light of the records, the court below rejected the admissibility of evidence on the suspect's interrogation records or written self-statements prepared by the prosecutor against the defendant 5 or written self-statements prepared by the suspect against the defendant 1, 2, 3, and 4, or rejected the suspect's interrogation records prepared by the suspect against the defendant 1, 2, 3, and 4, or the suspect interrogation records prepared by the suspect against the defendant 1, 2, 3, and 4 and the witness interrogation records prepared by the court below for the reasons stated by the court below, the court below rejected the probative value on the grounds that it was stated by the court below. In light of the records, it cannot be said that there is a defect of illegality in violation of the rules of evidence because
Defendant 4 did not err in any measure that the prosecutor deemed as not having been in Korea, and even if the above certificate was forged by Nonindicted 3, the judgment of the court below as to Defendant 4's non-proof of the non-proof of the defendant 4 was presented to the court below on the date and time stated in the bill of indictment because it appears that it was impossible for the court below to raise the above green 20 out of the date and time stated in the bill of indictment to take account of the weather condition of the time taken by the court below, since it appears that it was not possible for the court below to raise the above green 20 out of the date and time stated in the bill of indictment to raise the above green 20 out of the public prosecutor's own authority, it did not affect the result of the judgment.
7. We examine the Prosecutor’s ground of appeal on Defendant 7
Examining the evidence listed by the court below in light of the records, the court below did not err in violation of the rules of evidence by misunderstanding the measures that found the defendant 7 guilty of the 10 cognizorous aiding and abetting the facts charged under the Act on the Aggravated Punishment, etc. of Specific Crimes against the defendant 7, and thereby violating the rules of evidence by misunderstanding the preparation of evidence. The arguments are groundless.
8. The grounds of appeal by Defendant 7 and records of the grounds of appeal by the defendant Kim Jong-man of the defendant's state office Kim Jong, and the court below found that the defendant 7 was guilty of the facts charged in violation of Article 6 (2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes (the fact of secret control of 10 Sub-sections for green year) based on the evidence listed by the court below, and there was no error of law in violation of the rules of evidence or violation of the principle of court-oriented trials, and the grounds of appeal by the fact that the sentencing is too heavy is sentenced to five years of imprisonment and a fine of 40,400,000 won are not legitimate grounds of appeal in light of Article 383 subparagraph 4 of the Criminal Procedure Act. All of
9. We examine Defendant 5’s defense counsel’s ground of appeal on this issue.
1. On the first ground for appeal
Since the judgment of the court below reversed the entire conviction part of the judgment of the court of first instance against the defendant 5 and recognized the defendant's defendant's defendant's defendant's defendant's Kim-cick's guilty charges of obstruction of performance of official duties, even though there is no judgment on the grounds of appeal against the above part, it cannot be said to have affected the judgment, and therefore
In addition, in a case where a lawful act of violence was committed by a customs staff member who performed official duties by breabbbing and sculing, the judgment of the court below is without merit, and it is clear that the case is not appropriate for this case, since it constitutes a crime of obstruction of performance of official duties, the court below erred by misapprehending the legal principles as to the crime of obstruction of performance of official duties.
In addition, the court below did not err in finding facts without any evidence or violating the rules of evidence. The arguments are without merit.
2. On the second ground for appeal
The evidence cited by the judgment of the court below is compared with the records and examined, and there is no error of violation of the rules of evidence or violation of the law of evidence, as alleged in the arguments against the defendant 5 guilty of the charges of obstruction of performance of official duties as stated in the judgment and the violation of Article 3 (1) of the Punishment of Violences, etc. Act, and there is no error of violation of the rules of evidence or incomplete deliberation or violation of the law of evidence. The court below's decision is just in the application of Article 2 (1) of the Criminal Act to the punishment of the person who committed the crime by carrying a deadly weapon or other dangerous articles as stated in the latter part of Article 3 (1) of the Punishment of Violences, etc. Act, and it is obvious that the crime of this Article is not limited to the case where the crime of this Article is committed habitually under Article 2 (1) of the Criminal Act or at night under Article 2 (2) of the same Act, since it is clearly related to the provisions of Article 3 (2) of the same Act (see Supreme Court Decision 72Do305, Apr. 28, 7201).
The paper is without merit.
3. On the third point
The court below found Defendant 5 guilty, in collusion with Nonindicted 4 on July 14:00, 1973, that the above 17th vessel was carrying smugglingd goods in Japan at the time of the search of the vessel in collusion with the above 14:00 on the fest 17th vessel, which was at anchored on the coast of the Masan-dong, Masan-dong, the customs office Hasan-si, the coast guard line affiliated with the coast guard group, and the head of the Dong, for a small period of one year and one year after being killed, on the ground that the above flusssium was frighted, and the flussium was fluored to the above flusium, and the above flusium was fluored with the law, and was fluord with the flusium's flusium's flusium, and was fluord with the flusium's flusium's flusium and 3 times.
However, the object of the report in accordance with the crime of obstruction of performance of official duties is that a public official's legitimate performance of official duties is required. In this case, if a customs officer intends to search a vessel at anchor by information that a customs officer has loaded smuggling, he/she shall obtain the consent of the owner or possessor of the vessel, obtain the warrant of seizure or seizure from a judge, or obtain the issuance of an ex post warrant only in cases of urgency under the latter part of Article 212 (1) of the Customs Act. Without any deliberation and determination as to whether the above requirements are met, the above part of the special obstruction of official duties should be applied to a public official who searched the above vessel by using the examined objects and only the fact that the injury was inflicted by assault and assault, and the special obstruction of official duties should be determined after calculating punishment against Defendant 5, because the victims caused damage and damage to property while searching the vessel owned by the defendant. Therefore, the part of the judgment below which did not contain errors in the misapprehension of legal principles as to legitimate execution of official duties corresponding to the element of a special obstruction of official duties.
In addition, since all of the convictions against Defendant 5 are concurrent crimes under the former part of Article 37 of the Criminal Act, the illegality of this part shall affect all other convictions, the entire convictions against Defendant 5 cannot be exempted.
10. Therefore, among the non-guilty portion of the judgment of the court below as to Defendant 5 and the non-guilty portion on the same lecture, the part on the fact that the non-guilty portion on May 4, 1974 to August 25, 1975, 17 up to 18 times in 17 and 3,571,356 won of customs duties on the pertinent 3,571,356 won by smuggling imported 1 cosmetics such as 14 in daily television water, 14 in a 18-day television water, Kastein 2, 200, and 20 others, and the part on the non-guilty portion of the judgment of the court below as to the non-guilty portion on December 10, 1974 and 12,090 won of customs duties on the 12,090 won and the part on the non-guilty portion on the defendant 5 and 4 as to the judgment of the court below and the appeal against the defendant 1 and the remaining part are dismissed.
Justices Yang Byung-ho (Presiding Justice)