[2] In a case where foreigners who illegally entered the Republic of Korea were arrested upon entering the territorial sea of the Republic of Korea, the case reversing the judgment of the court below which punished the defendants as attempted violation of Article 93-2 subparagraph 1 of the Immigration Control Act, to the effect that the defendants should be punished as attempted violation of the above provision

[2] The case reversing the judgment of the court below convicting the Defendants for the attempted violation of the above provision on the ground that the foreigners who illegally entered the Republic of Korea entered the port of entry constituted the violation of Article 93-2 subparagraph 1 of the Immigration Control Act only when they entered the port of entry without an entry inspection by the immigration control official, should be punished for the attempted violation of the above provision

1. The term "entry" under the Immigration Control Act means entering an area within the territory of the Republic of Korea from an area outside the Republic of Korea, and the term "area within the Republic of Korea" means the territorial sea of the Republic of Korea and an area within the territorial airspace of the Republic of Korea.

Therefore, the time of violation of Article 93-2 of the Immigration Control Act, which punishs a person who illegally enters or arranges the illegal entry of a foreigner who shall undergo an entry inspection under Article 12 (1) or (2) of the Immigration Control Act, should be determined based on the time when the illegal entry of the foreigner enters the territorial sea or airspace of the Republic of Korea.

2. According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which held that the Defendants’ crime of this case constitutes an attempted violation of Article 93-2 subparag. 1 of the Immigration Control Act, on the grounds that it is reasonable to view that the Defendants’ crime of this case merely constitutes an attempted violation of Article 93-2 subparag. 1 of the Immigration Control Act, on the grounds that it is reasonable to view that the Defendants’ illegal entry did not immediately

However, according to the records, foreigners who illegally illegally enter the Republic of Korea in violation of Article 93-2 Item 1 of the Immigration Control Act are aware of the fact that they were arrested within the territorial sea of the Republic of Korea. According to the above legal principles, the defendants' crime of this case shall be deemed to constitute the violation of Article 93-2 Item 1 of the Immigration Control Act.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the time of violation of Article 93-2 of the Immigration Control Act. Thus, the ground of appeal pointing this out is with merit.

3. Therefore, since the judgment of the court below cannot be maintained without examining Defendant 1’s grounds of appeal, the judgment below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon-won (Presiding Justice)