[외국환관리법위반·관세법위반][집14(2)형,021]
(a) Where it is impossible to confiscate goods which an offender who violates the Customs Duties Act owns or occupies, a case where there is an error of not collecting additional tax;
(b) Cases where Article 38 (1) 2 of the Criminal Act is applied and a fine is imposed and a concurrent penalty is imposed;
A. It is erroneous in the application of only paragraph 1(2) of this Article to concurrent crimes, both of which are punished by imprisonment and fine.
(b)in the case of a crime of evading customs duties, the goods owned or possessed by the offender must be confiscated or collected additionally;
Article 38(1) of the Criminal Act, Article 198(1), Article 212 of the Customs Act, Article 17(1), and Article 35 of the Foreign Exchange Control Act
Defendant 1 and two others
Prosecutor
Attorney Jin-soo et al. and one other
Busan District Court Decision 65No1438 delivered on March 3, 1966
The original judgment is reversed, and the case is remanded to Busan District Court Panel Division.
The prosecutor's grounds of appeal are examined.
In the judgment of the court below, the defendant 1 was sentenced to imprisonment of one year and six months and fine of 200,000 won, defendant 2 was sentenced to imprisonment of 1 year and 30,000 won and fine of 30,000 won, and defendant 3 was sentenced to imprisonment of 8 months and fine of 30,000 won, respectively, for the crime of evading customs duties at the time of the judgment of the court below as to goods owned or possessed by the defendant, and for the crime of evading customs duties at the time of the judgment of the court below as to goods owned or possessed by the defendant, additional collection should be made in accordance with Article 198 (1) of the Customs Act where it is impossible or impossible to confiscate in accordance with Article 212 (1) of the Customs Act, but the failure to do so violates Article 198 (1) of the Customs Act or Article 212 (1) of the same Act, and there is a reasonable ground for appeal as to this point.
Defendant Park Jae-won’s ground of appeal is examined.
Even if the order of the witness's strong position is substantially an accomplice with the defendant, the prosecutor may request the judge to examine the judge as a witness in accordance with Article 184 of the Criminal Procedure Act, even if the order of the witness's strong position is recognized as necessary for the preservation of evidence of the criminal facts against the defendant, and the adoption of the above witness's examination protocol as evidence of the criminal facts against the defendant is not in violation of the Constitution or the law.
There is no reason for this issue.
As to the grounds of appeal Nos. 2 (1) of the above grounds of appeal, according to the testimony in the order of witness classical order, the criminal facts against the defendant's violation of the Foreign Exchange Management Act can be fully recognized.
With respect to the grounds of appeal Nos. 2 (2) of the same ground of appeal, there is no reason that Defendant Park Jae-man attended the school referred to in the place of debate or was unaware of the original scarbly red during the service of the Marine Corps within that period. The argument that the Defendant committed the crime of this case immediately after maturity in the Marine Corps, is against the rule of experience, is nothing more than the German body.
As to the grounds of appeal Nos. 2 (3) of the same grounds of appeal, comprehensively taking account of the statement of the same person among the suspect examination records as well as the testimony of the witness stand-down in the order of the witness stand-down of the prosecutor who recognized the establishment of the defendant, even if the testimony of the witness Kim Jong-chul, Kim Jong-cheon, Jeon Jong-tae, and Jeong-won is circumstantial evidence, the facts constituting a violation of the Customs Act can be fully acknowledged at the time of original testimony against the defendant.
As to the grounds of appeal Nos. 2 (4) of the same ground of appeal, even if the statement in the first instance court of the co-defendant Park Jong-dae's co-defendant's paper is excluded from the statement in the trial court of the first instance court of the co-defendant's paper, the facts constituting the crime at the original time can be fully recognized in full view of the statements of the same person among the suspect's written interrogation of Lee Jong-dae and Park Jong-dae's paper as to the establishment of the
The grounds of appeal No. 3 are examined.
The original judgment against the defendant, on the criminal facts in violation of the Customs Act at the time of original sale,
Article 198 (1) of the Customs Act, Article 30 of the Criminal Act, Article 30 of the Foreign Exchange Control Act, Article 17 (1) 1 of the Foreign Exchange Control Act and Article 35 of the same Act shall apply to the crime of violation of the Foreign Exchange Control Act, respectively, the former shall be sentenced to a prescribed imprisonment, the latter shall be sentenced to a prescribed fine, and the latter shall be sentenced to a prescribed fine, and the latter shall be sentenced to a concurrent crime under the former part of Article 37 of the Criminal Act, and the latter shall be sentenced to a so-called so-called two concurrent crimes under Article 38 (1) 2 of the same Act and Article 50 of the same Act. Thus, the latter shall be punished by imprisonment with prison labor within the scope of a heavier punishment under Article 38 (1) 2 of the same Act, the latter shall be punished by imprisonment with prison labor within the period of a limited term of 1 year and 6 months and fine 200,000 won under the Customs Act, and the lower court shall have any error in applying this Act.
Therefore, the original judgment is reversed, and the case is remanded to Busan District Court Panel Division. It is so decided as per Disposition by the assent of all participating judges.
Justices of the Supreme Court (Presiding Judge) Mag-kim Kim-bun and Magman