[보건범죄단속에관한특별조치법위반등피고사건][고집1980(형특),20]
Whether transferring the seized or stored condition to the original state constitutes a crime of nullifying the custody for official duties.
It can not be said that the fact that the state of seizure and custody is transferred under the premise that the seizure should be rescinded is a crime of nullifying the custody of public duties.
Article 142 of the Criminal Act
Defendant 1 and one other
Prosecutor and Defendant
Sungdong Branch of the Seoul District Court (75 Gohap71, 75 Gohap4898)
The judgment of the court below is reversed.
Defendants shall be punished by imprisonment for not less than two years and six months.
Of detention days prior to the pronouncement of the judgment of the court below, 135 days shall be included in the calculation of defendant 1, and 40 days shall be included in the calculation of the above punishment.
However, the execution of the above punishment against the defendants is suspended for 4 years from the date of the conclusion of the judgment.
The sentence of fine against the Defendants shall be suspended.
3,560,000 won shall be collected from the Defendants.
The gist of the defendants' appeal is as follows: First, the court below found the defendants guilty of violating the Act on Special Measures for the Control of Public Health Crimes against the defendants; second, the defendant's act of violating the Act on Special Measures against the Violation of the Act on the Control of Public Health Crimes against the defendants; second, the court below's decision was erroneous in misunderstanding the facts against the rules of evidence or misunderstanding the legal principles regarding the Act on Special Measures for the Control of Public Health Crimes against the defendant 1; second, the court below's decision that the defendant's act of selling the above goods to the non-indicted 5 was about the non-indicted 1 and the non-indicted 5's act of selling the goods to the non-indicted 6's 10-lane 7-lane 1, which was the non-indicted 9's disposal of the goods at issue; second, the defendant's act of selling the goods to the non-indicted 1 and the non-indicted 2's disposal of the goods at issue to the non-indicted 5-party 3's disposal of the goods at issue.
Therefore, in light of the records, the Defendants’ first ground for appeal as to the Defendants’ first ground for appeal, and the various evidences duly admitted by the court below, were reviewed in light of the records, as the court below decided, it can be acknowledged that the Defendants conspired to manufacture and process the goods without permission, manufactured and processed the goods, the quantity of the goods manufactured and processed by the Defendants, and part of the goods manufactured and processed by the Defendants after receiving the processing fees, etc., cannot be deemed to have been manufactured for pure experiment purposes in light of the fact that the goods were already supplied, and there is no evidence to conclude that the goods were semi-finished products as pointed out, and there is no evidence to conclude that the above goods were semi-finished products (the defendants raised the above assertion only when they came to the trial) and according to the testimony at the party proceedings of Nonindicted Party 6 at the trial witness of the political party (the defendant raised the above argument). Thus, the above appeal logic cannot be accepted as a appearance or acceptance.
As to the grounds for appeal by the following Defendants, in full view of the evidence duly admitted by the court below after examining the evidence as to the above facts, Defendant 1 applied for provisional return of 94 dives among the items which were seized on this case, but the decision of non-permission was made, and the above 94 dives and 29 dives were not legally returned from the public prosecutor in charge, but the above 94 dives and 29 dives were ordered to be fine because the provisional seizure was cancelled, the above 40 dives and 94 dives and 94 dives and 94 dives and 94 dives and 20 dives and 94 dives and 90 dives and 94 dives and 5 dives and 90 dives and 90 dives and 9 dives and sives and 9 dives and sivess and 9 ves and 9 ves.
Thus, the fact that Defendant 1 transferred the above fish oil to Nonindicted 4 as it was seized and kept on the premise that seizure 29ds will be rescinded cannot be deemed as a crime of invalidation of custody in the line of duty. In addition, in order to enable the said Defendant to sell the above building, the court below found Defendant 1 guilty of this point of view, on the ground that there is no evidence to acknowledge that he conspired with Nonindicted 2 in forging a copy of the above seizure cancellation certificate, or that he processed the above disposal act by Nonindicted 5, the court below found Defendant 1 guilty of this point of view that it affected the judgment by misunderstanding facts against the rules of evidence or misunderstanding the legal principles as to the crime of invalidation of custody in the line of duty, and there is a reason to appeal by Defendant 1, and the court below's decision that does not require the
Then, according to Article 2 (2) of the Act on Special Measures for the Control of Public Health Crimes among the grounds for appeal by the prosecutor, the suspension of sentence shall not be imposed concurrently on the grounds of the concurrent imposition of a fine as well as on the grounds that it is not possible to suspend the sentence of a fine pursuant to the above Article 2 (2) of the same Act. However, the above appeal may not be accepted since the court below's grounds for appeal on the grounds of unfair sentencing against Defendant 2 by the public prosecutor and ex officio on the sentencing imposed by the court below, in consideration of the following circumstances: the defendant's age, character and behavior, environment, motive, means, consequence, criminal records, criminal records, and circumstances after the crime, etc., the judgment of the court below on the defendant is considered to be unfair because the amount of the sentence against the defendant is too unreasonable ( therefore, the grounds for appeal by the public prosecutor).
Therefore, the judgment of the court below is reversed in accordance with Articles 364(2) and 364(6) of the Criminal Procedure Act, and a member is again decided
The summary of the defendants' facts constituting a crime and evidence is as follows: "Defendant 1 is detained on March 21, 1975 by the Sungdong Branch Inspection of the Seoul District Prosecutors' Office under the charge of violating the Act on Special Measures for the Control of Public Health Crimes. At the same time, the defendant seizes food and industrial quantity 94 cm (50,000 won at the market price at the large) owned by him as evidence, and it is difficult to keep it as the same person to the regular manager of the Dong factory, the South of the defendant's wife, who had kept it in custody according to the order of custody, and then he applied for temporary return of the same article after release according to the order of release by the court of release, but the decision of refusal was made and the prosecutor in charge could not temporarily return it without permission, and the remaining articles shall be disposed of without permission by a public tender with the same person, and the remaining articles shall be omitted within 300 70 m3 m3 m2 m2 m2 m3 m3 m m m s s s s s am.
Article 2(1)1 of the Act on Special Measures for the Control of Public Health Crimes, Article 23(3) of the Food Sanitation Act, Article 30 of the Criminal Act, Article 142 and Article 30 of the Criminal Act are applicable to the above facts stated in the judgment below. Since the above facts are 0 concurrent crimes under the former part of Article 37 of the Criminal Act, the punishment of imprisonment for a violation of the Act on Special Measures for the Control of Public Health Crimes shall be imposed, and the above two crimes shall be punished by imprisonment for a definite period of up to 6 years, and the above punishment shall be imposed on the defendants for a definite period of up to 0 years under Article 38(1)2 and Article 50 of the Criminal Act. Since the above facts stated in the judgment below are as follows: Article 2(1)1 of the Act on Special Measures for the Control of Public Health Crimes and Article 30 of the same Act shall be punished by a fine of up to 50 of the same Act, the above defendants shall be punished by imprisonment for a definite period of up to 15 years under Article 57 of the Criminal Act.
The facts charged as to the invalidity of the goods kept in custody by Defendant 1 in the line of duty are that the defendant arbitrarily transferred 29 cm (45,000 won at the market price at the flood) in addition to 94 cm as stated in the above judgment against the defendant as well as 94 cm, to each of the merchants in the same temporary name, and thus, it would impair its utility. As stated in the above reasons for reversal against the defendant, the defendant should not be acquitted without any proof of the crime as to this part. However, since the 94 cm which was found guilty was charged for the fact of arbitrarily disposing of 94 cm and a single comprehensive crime, the decision of innocence is not rendered separately in the disposition.
It is so decided as per Disposition for the above reasons.
Judges Kim Jong-chul (Presiding Judge)