[특정범죄가중처벌등에관한법률위반피고사건][고집1978형,60]
A fine concurrently imposed pursuant to Article 6 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes and discretionary mitigation;
According to Article 6 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 194 of the Act on the Aggravated Punishment, etc. of Specific Crimes is clear that it is a provision that is subject to aggravated punishment for specific crimes as stipulated in Article 180 of the Customs Act, and there is no provision that excludes the application of Article 194 of the Customs Act in the case of violation of Article 180 of the Customs Act, etc.
Article 6 of the Aggravated Punishment Act, Article 194 of the Customs Act
Supreme Court Decision 77Do2114 delivered on September 13, 1977 (Supreme Court Decision 11688, Supreme Court Decision 253No. 569 delivered on the Aggravated Punishment, etc. of Specific Crimes, Act No. 1405 delivered on the Aggravated Punishment, etc. of Specific Crimes, Article 6(5)105)
A
Prosecutor’s White Paper
Busan District Court (77 High Court Decision 398)
The judgment of the court below is reversed.
Defendant shall be punished by imprisonment for a year and six months, and a fine of 4,000,000 won.
When the above fine is not paid, the defendant shall be confined in a workhouse for the period calculated by converting the amount of KRW 200,000 into one day.
However, the execution of the above imprisonment shall be suspended for three years from the date this judgment becomes final and conclusive.
The gist of the reasons for appeal by the prosecutor is that the punishment of the court below is too unreasonable, and the summary of the grounds for appeal by the defense counsel is that the defendant is not aware of the fact that this article was pushed down and failed to be arranged at the request of the non-indicted B, but it was affected by the judgment by recognizing the fact wrong, and even if it is not, the punishment of the court below is too unreasonable.
However, in full view of the evidence duly admitted by the court below, it is sufficient to recognize the criminal facts at the time of original adjudication, and there is no appeal that there is an error of misunderstanding of facts in the original judgment.
However, according to the reasoning of the judgment of the court below ex officio, since the judgment of the defendant is subject to Article 6 (6) and 6 (2) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Act"), the court below imposed a fine concurrently pursuant to Article 6 (3) of the same Act, and mitigated the amount of fine, such as imprisonment.
However, according to Article 6 of the Aggravated Punishment Act, it is clear that Article 180 of the Aggravated Punishment Act is a provision to punish specific crimes as provided for in Article 180 of the Aggravated Punishment Act, and Article 194 of the Aggravated Punishment Act does not provide for the exclusion of the application of Article 194 of the Aggravated Punishment Act in the case of violations of Article 180 of the Aggravated Punishment Act. In light of Article 6 of the Aggravated Punishment Act, where a crime as provided for in Articles 180 and 182 (1) of the Aggravated Punishment Act is aggravated, Article 194 of the Aggravated Punishment Act
Therefore, in the original judgment, there is an error of law by misunderstanding the legal principles of Article 6 of the Aggravated Punishment Act and Article 194 of the Customs Act. Therefore, the original judgment not required to determine the remaining grounds for appeal shall not be reversed in this respect.
Therefore, the judgment of the court below is reversed and the judgment is remanded in accordance with Article 364 (2) and (6) of the Criminal Procedure Act.
Criminal facts and summary of evidence admitted as a member of the party are the same as those of the court below, and they are cited.
The court below held that the defendant's judgment falls under Article 6 (6) and (2) 2 of the Aggravated Punishment Act, Article 182 (1) and Article 180 (1) of the Customs Act, Article 6 (3) of the Aggravated Punishment Act, and Article 6 (3) of the Aggravated Punishment Act. Since the defendant voluntarily surrenders to the authorities responsible for investigation after the crime of this case, the defendant voluntarily surrenders to the authorities responsible for investigation pursuant to Article 52 (1), Article 55 (1) 3 and 6 of the Criminal Act, and there are reasons to take into account the circumstances of this case's crime, the court below held that the defendant's punishment shall be suspended for a period of one year and six months from the date when he was sentenced to imprisonment and a fine of four million won, and Article 55 (1) 3 of the Aggravated Punishment Act and Article 69 (2) and Article 70 of the Aggravated Punishment Act, the defendant's punishment shall be deferred for a period of three years from the above year and six years from the date when he was sentenced to imprisonment.
It is so decided as per Disposition.
Judges Park Jae-sik (Presiding Judge)