Defendant shall be punished by a fine of KRW 70,000.

When the above fine is not paid, the defendant shall be confined in a workhouse for a period calculated by converting 500 won in money into one day.

The twenty days of detention days prior to the pronouncement of the judgment below shall be included in the period of recovery from the original sentence.

120,000 won shall be additionally collected from the defendant.

The provisional payment of the above fine and the amount equivalent to the surcharge shall be ordered.

According to Article 7 of the Customs Act, since the tariff rate classification 4907, which provides that "the customs duties shall be the tax base of the imported goods and the tax rate shall be in accordance with the tariff rate table" provides that "the bank authority shall be free of charge, so it is not the goods excluded from the goods subject to the Customs Act but the goods subject to the Customs Act as a matter of course, but it shall be free of charge. In addition, since the tariff rate table is stipulated as free of charge in the Customs Act, it is not necessary again to say that the goods should be reported to the customs and the goods should be inspected and the goods should be licensed. Second, since the Customs Act and the Foreign Exchange Control Act are different in their respective legislative purposes or reasons, they are not related to the General Law and the Special Law, and thus the

In other words, the purpose of the "Customs Act" is to contribute to the development of the national economy and secure the import of customs duties by properly assessing customs duties and customs clearance for exported and imported goods, and the "Foreign Exchange Management Act" is to manage foreign exchange and other foreign transactions subject to transactions in order to maintain balance of payments, ensure the safety of monetary value and efficient operation of foreign currency funds.

With respect to the exportation and entry of general goods, permission for export and entry under the Trade Act shall be obtained from the head of the relevant customs office, and the actual import of the goods shall be reported to the head of the relevant customs office (Article 6 of the Trade Business Act, Article 137 of the Customs Act). In addition, in order to obtain a license from the head of the relevant customs office, the invoices or documents necessary to determine the dutiable value shall be submitted, and the exported and entry goods shall be inspected by customs officers (Articles 139 and 140 of the Customs Act). All goods transferred from the Republic of Korea and abroad shall be subject to such customs administration and shall not be excluded from this,

Article 27 of the Foreign Exchange Control Act provides that "No resident or non-resident shall export or import means of payment, precious metals, securities, or other documents by which bonds are embodied, except as otherwise provided for in this Act or the Presidential Decree," and Article 26 of the Enforcement Decree of the same Act provides that in the export or import of documents by which payment means, precious metals, securities, or bonds are restricted or prohibited pursuant to Article 27 of the Act, a person who has obtained permission pursuant to the Presidential Decree of the Ministry of Finance and Economy may export or import such means of payment, etc., shall handle them differently from the permission for export or entry into general trading business in light of the unique characteristics of the payment means, and it is evident that these provisions provide that the export or entry into the Bank of Korea is not included in the export or entry license of customs office under Article 137 of the Customs Act.

In addition, Article 145 of the Customs Act provides that "any goods requiring permission, approval and other conditions with respect to their export, import or return in accordance with other Acts and subordinate statutes shall be proved by the customs collector that they have satisfied such conditions."

The purpose of this procedure is to finally confirm the existence of permission, approval, etc. under the laws and regulations on export and entry of goods, such as the Trading Business Act, the Act on Temporary Measures for Gold Metals, the Foreign Exchange Management Act, etc., and to conduct the final control during the actual export and entry of goods. Therefore, there is no room to say that the "permission granted under the conditions as prescribed by other laws and regulations" under Article 145 of the Customs Act should include the "permission granted under the Foreign Exchange Control Act" as a matter of course.

Therefore, the Customs Act and the Foreign Exchange Control Act are established concurrently for different purposes as mentioned above, and it is clear that the latter is not subject to the application of the former as a special law, and the latter is not subject to the application of the former.Third, if the Customs Act does not apply to the means of payment such as foreign currency, it causes unreasonable and unfair results that the attempted export or taking-in of the goods can not be punished.

At present, foreign bank rights occupy a considerable proportion in the smuggling by aircraft, ship, etc.

외국환관리법에는 지급수단등의 밀수출·입 미수행위를 처벌하는 규정이 없고 동 행위의 결과로 밀수출·입된 물품의 매매, 취득, 행위에 대하여는 단속할 규정이 없으므로 이러한 물품의 시중 유통을 방지할 수 밖에 없는 부당한 결과가 되고 말 것이므로 원판결은 관세법과 외국환관리법의 해석을 그르쳐 그 적용을 잘못한 위법이 있음이 명백하므로 마땅히 시정되어야 한다고 주장하므로 살피건대, 검사의 공소사실중 피고인은 1969.6.25. 충무시 항남동 앞 노상에서 성명불상 딸라상인 여인에게 한화 54,000원을 주고 일화 70,000엔을 교환한 후 동월 28. 제63협동호로 충무항을 출항, 동월 30. 일본국 오까야마켕 우노항에 입항 상륙하므로서 위 일화를 무면허 수출한 것이다라는 점에 대하여 원심은 기소된 물품은 일본화폐 70,000엔으로서 지급수단임이 명백하고 「지급수단 등의 수출·입에 관하여는 외국환관리법 제27조 가 관세법에 우선 적용되는 것이므로 이는 외국환관리법 제27조 소정의 지급수단 등의 수출·입죄는 될지언정 관세법 위반죄는 되지 않는 것」으로서 결국 범죄가 되지 아니하는 경우에 돌아가므로 무죄선고를 하였는바, 당심에게 검사는 1971.4.8.자로 공소장기재 적용법조중 관세법 제181조 를 철회하고 외국환관리법 제27조 , 동 제35조 를 추가하여 신청한 바 당심에서 이를 허용한 바, 일건 기록상 원심이 판단한 바와 같이 외국환관리법 제27조 의 적용이 우선 적용(대법원판례도 같은 취지)된다고 봄이 타당하므로 그렇다면 항소이유 적시와는 일치되지 아니하나 당심에서 검사의 공소장기재 적용법조의 철회 및 추가에 의하여 이는 그 이유있어 결국 검사의 항소는 그 이유있음에 돌아간다 할 것이므로 이 부분을 탓하는 검사의 항소를 받아들여 형사소송법 제364조 제6항 에 의하여 원심판결중 무죄부분을 파기하고 변론을 거쳐 다시 판결하기로 한다.

Criminal facts,

1. 피고인은 1969.6.25. 충무시 항남동 앞 노상에서 성명불상 딸라상인 여인에게 한화 54,000원을 주고 일화 70,000엔을 교환한 후 동월 28일 위 제63협동호로 충무항을 출항, 동월 30.일본국 오까야마껭 우노항에 입항 상륙하므로서 위 일화를 무면허 수출한 것이다.

The facts of the judgment, as the case may be, shall be

1. Statement to the effect that the defendant conforms to it in the original judgment;

1. Statement to the effect that it corresponds to the interrogation protocol of the accused prepared by the public prosecutor;

1. Statement made by the judicial police officer that it conforms to the statement among the statement statement made by the non-indicted in the process of handling affairs;

1. It is sufficient to prove that the contents of the appraisal report prepared by Busan Customs Office and the corresponding appraisal result can be combined, and there is sufficient proof.

On the other hand, the second sentence of Article 27 and Article 35 of the so-called Foreign Exchange Control Act. 2. The second sentence falls under Article 182 (2) and Article 180 (1) of the Customs Act, and the second sentence of Article 37 of the same Act is a concurrent crime under Article 37 of the Criminal Act. Since the above two crimes are concurrent crimes under Article 38 (1) 2 of the same Act and Article 50 (2) of the same Act, the defendant shall be punished by a fine not exceeding 70,00 won, and if the above fine is not paid pursuant to Articles 70 and 69 (2) of the Criminal Act, the defendant shall be confined to a fine not exceeding one day after converting the amount of 500 won, and since the above fine shall be included in the period of detention prior to the imposition of the sentence pursuant to Article 57 (1) of the same Act, the amount equivalent to the above 20 days of a fine not exceeding 10,000 won, the domestic wholesale price of the Japanese Customs Act shall be confiscated.

Therefore, it is so decided as per Disposition with the above reasons.

Judge Lee Jung-gu (Presiding Judge)