[특정범죄가중처벌등에관한법률위반(관세, 예비적 죄명:외국환관리법위반)등][하집1990(1),495]
(a) In case that any gold is discovered in the course of inspecting the personal effects of travelers of a customs house, whether the import activities provided for in Article 27 of the Foreign Exchange Control Act can be deemed to have reached the expiration of the period;
(b) Whether Article 181 of the Customs Act on Unlicensed Export and Import Offenses, etc. applies to the import of gold without obtaining the permission of the Minister of Finance and Economy under Article 34 of the Enforcement Decree of the Foreign Exchange Control Act;
A. The import under Article 27 of the Foreign Exchange Control Act is defined in Article 2 (1) of the Customs Act, and it is clear that the customs inspection place is a bonded area, so if it is discovered in the process of inspecting the personal effects of the travelers of the customs, it shall not be deemed that the import under Article 27 of the Foreign Exchange Control Act is completed.
B. Under Article 27 of the Foreign Exchange Control Act and Article 34 of the Enforcement Decree of the same Act, domestic residents and non-residents may export or import the means of payment, precious metals, etc. subject to the regulation of the same Act through the procedures of permission, authorization, approval or report as prescribed by the Minister of Finance and Economy, and in case of violation thereof, the act of importing gold without the permission, etc. of the Minister of Finance and Economy shall be punished under the Foreign Exchange Control Act, which is the special law, and there is no room to apply Articles 181 and 137 of the Customs Act.
Article 27 of the Foreign Exchange Control Act, Article 27 of the Customs Act, Article 34 of the Enforcement Decree of the same Act, Article 181 of the Customs Act, Article 137 of the same Act
Supreme Court Decision 82Do115 Decided December 14, 1982 (Article 2 (6) 599 of the Customs Act, Law No. 698No315 Decided December 14, 198)
A and one other
Defendants and Prosecutor
B
Seoul District Court Decision 89Gohap369 delivered on August 22, 1989
All the judgment below is reversed.
Defendants shall be punished by imprisonment for one year.
One hundred and thirty days each of the detention days before the judgment of the court below is made shall be included in the above punishment.
However, the execution of each of the above penalties shall be suspended for two years from the date this judgment becomes final and conclusive.
The 500 gold tamps (No. 2) confiscated from the Defendants shall be confiscated.
Of the facts charged in this case, the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Preliminary Crimes) shall be acquitted.
The summary of the grounds for appeal by the defendants' defense counsel is as follows: first, although Co-Defendant C did not participate in the crime of this case, the court below found that the defendants conspired to commit the crime of this case, which affected the conclusion of the judgment; second, the judgment of the court below is erroneous in misunderstanding of facts; second, since Defendant A intended to import the gold of this case and was discovered at the customs inspection division, it cannot be seen as revenue under the Foreign Exchange Control Act, the court below recognized that the defendants imported the gold of this case. The court below erred in the misapprehension of legal principles under the Foreign Exchange Control Act, or misunderstanding of facts, which affected the conclusion of the judgment; and hh Defendant A responded to the inspection of customs officers by putting the bank containing the gold of this case into the customs inspection board, and did not evade customs duties by fraudulent or other unlawful means; therefore, the court below found the defendants guilty of violating the Customs Act. The judgment below erred in the misapprehension of legal principles under the Customs Act, or by misunderstanding the facts, which affected the conclusion of the judgment; fourth, the court below's sentencing against the defendants's grounds for appeal is unreasonable.
First, according to the court below's finding of facts as to the violation of the Foreign Exchange Control Act or misunderstanding of facts, the defendants conspired to purchase 50 U.S. dollars in par value issued by the Government of Canada and 450 instant gold papers (limited to the gold papers in front and rear). The court below found the remainder of the 10 U.S. customs clearance area to have been removed on April 9, 1989 by 00 U.S. 7 No. 106-23, which had been imported from the 37 U.S. Customs offices to have been removed from the 19-3 customs clearance area, and found the fact that the defendants were to have been removed from the 5-th customs clearance area to have been removed from the 5-th customs clearance area to have been removed from the 5-th customs clearance area. The court below found the 10-th customs clearance area to have been removed from the 19-th customs clearance area to have been removed from the 3-th customs clearance area. The court below found the 19-th customs clearance of this case.
Therefore, the court below which found the defendant guilty of the facts charged on the premise that he received the means of payment under Article 27 of the Foreign Exchange Control Act (no provision on punishment for attempted crimes in the same Act) shall be erroneous, or misunderstanding the legal principles on "import" under the Foreign Exchange Control Act, thereby affecting the conclusion of judgment. Thus, the defendant's appeal causing such error is reasonable, and the crime of violation of the Foreign Exchange Control Act is concurrent with the violation of the Customs Act which the court below found guilty, and the judgment of the court below shall not be reversed without
Therefore, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows after pleading.
Criminal facts
The Defendants, around March 14, 1989, invested USD 48,000 by Defendant A, and USD 153,00 in the small hotel coffee shop located in Jung-gu Seoul, Seoul, to purchase gold in the United States and then enter the Republic of Korea. Defendant C conspired to sell it and distribute its profits. Defendant A conspired to sell it on April 1, 1989, and 48,000 U.S. dollars and 153,000 U.S. dollars sent domestically by Defendant C, as part of USD 153,00, which was 50 U.S. dollars and 153,000 that Defendant C sent in the Republic of Korea, to purchase 9,67,500 won in total, 30 U.S. dollars and 40 U.S. dollars and 10 U.S. dollars and 50 U.S. dollars and 10 U.S. dollars and 20 U.S. dollars were to enter them into the above 10. 3 p.m.
Summary of Evidence
Since it is the same as indicated in the summary column of the evidence of the judgment below, it is cited in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
Of the Defendants’ respective acts, each of the offenses committed by the Defendants falls under Articles 182(2) and 180(1) of the Customs Act; Article 30 of the Criminal Act; Article 13(1) of the Defense Tax Act; Article 182(2) and Article 180(1) of the Customs Act; and Article 30 of the Criminal Act. Since one of the offenses constitutes several offenses, the Defendants shall be punished for a violation of the Customs Act, which is focused on the quality of the offense under Articles 40 and 50 of the Criminal Act; Article 57 of the Criminal Act shall be punished for one year within the term of punishment; Article 130 of the Customs Act shall be included in the above punishment; Article 57 of the Criminal Act shall be applied; Article 180 of the Criminal Act shall be included in the number of detention days prior to the pronouncement of the original sentence; Article 182(2) of the Customs Act shall be included in the calculation of the above punishment; Article 182(1) of the Criminal Act shall be confiscated from each of the above punishment for 20 years.
Parts of innocence
Among the facts charged in this case, the summary of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Preliminary Violation of the Foreign Exchange Control Act) is that the defendants conspired to obtain a license under the Customs Act (preliminary permission under the Foreign Exchange Control Act) and obtain a license under the above Act at the same time and place in the above decision, the total cost of gold 108,569,250 won in addition to the 500 gold cambling in this case, and passed through the customs clearance unit without any declaration of customs office after being concealed in the cambling of documents at the Kimpo-air port, and thus, the defendants' act of importing gold cambling in this case constitutes a violation of Article 6 (4) 1 and (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 181 and Article 137 of the Customs Act, and Article 35, Article 27 of the Act on the Aggravated Punishment, etc. of Specific Exchange Control Act or Article 5 of the Enforcement Decree of the same Act shall not apply to the above import Control Act.
It is so decided as per Disposition for the above reasons.
Judges Jeon Soo-dae (Presiding Judge)