[관세법위반][미간행]
[1] The elements for the establishment of a public contest relationship in a public co-principal
[2] The additional collection of a charge against an accomplice who does not possess or possess an article of a customs offense (affirmative)
[1] Article 30 of the Criminal Act / [2] Article 48 of the Criminal Act, Article 282 (2) and (3) of the Customs Act
[1] Supreme Court Decision 98Do2654 delivered on November 24, 1998 (Gong1999Sang, 81) Supreme Court Decision 2004Do1465 Delivered on May 28, 2004 (Gong2004Ha, 1129) Supreme Court Decision 2005Do8645 Delivered on February 23, 2006 (Gong2006Sang, 537) / [2] Supreme Court Decision 83Do639 Delivered on May 24, 1983 (Gong1983, 1038), Supreme Court Decision 84Do397 Delivered on June 12, 1984 (Gong1984, 1237)
Defendant
Defendant
Law Firm Gyeongwon, Attorney Jeon Gyeong-soo
Seoul High Court Decision 2005No2023 delivered on December 30, 2005
The appeal is dismissed. 95 days out of detention days after the appeal shall be included in the original sentence.
1. The conspiracy in which two or more persons jointly process the crime does not require any legal punishment, but is only a combination of intent to realize the crime by combining two or more persons jointly process the crime, and even if there was no process of the whole conspiracy, if there was a combination of intent to do so in order or impliedly, among several persons, the conspiracy relation is established, and even if there was no direct participation in the conduct, even if there was a person directly participate in the conduct, he/she is held liable for the other conspiracy's act as a co-principal (see, e.g., Supreme Court Decisions 98Do2654, Nov. 24, 1998; 2004Do1465, May 28, 2004).
In the same purport, the court below, based on the evidence adopted, found facts as stated in its reasoning, and found the defendant guilty of having received a total of KRW 103,431,790 on eight occasions in collusion with non-indicted 1, 2, etc., without reporting to the head of the customs office. In light of the records, the court below's selection of evidence, finding of facts, and determination of facts are just and acceptable, and there is no error of law such as misunderstanding of facts against the rules of evidence or misunderstanding of legal principles as to co-principals
2. As the additional collection under the Customs Act is different from the additional collection under the general criminal law, if several persons act in collusion to evade customs duties, arrange, transport or acquire goods to arrange or transport customs duties, the additional collection under the Customs Act may be made respectively from all offenders, regardless of whether the goods are owned or possessed (see Supreme Court Decision 83Do639 delivered on May 24, 1983).
In the same purport, the decision of the court below ordering an additional collection of the amount equivalent to the domestic wholesale price for the goods smuggling by the defendant is justifiable, and there is no violation of law such as misunderstanding of legal principles as to additional collection under the Customs Act
3. Therefore, the appeal shall be dismissed, and the ninety-five days of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Yong-dam (Presiding Justice)