Case on Aggravated Punishment for Preparation for Smuggling Goods into Korea

[2016Hun-Ka13, February 28, 2019] * First Draft

In this case, the Court held that the part concerning “Article 269 Section 2 of Article 271 Section 3 of the Customs Act” in Article 6 Section 7 of the Act on Aggravated Punishment, etc. of Specific Crimes―the part under which the preparation for smuggling goods into Korea is subject to punishment equivalent to that for the commission thereof―was in violation of the Constitution, because it (1) contravened the principle of proportionality between responsibility and punishment and (2) ran counter to the principle of equality by providing an unreasonable penalty disrupting the balance in the criminal punishment system.

Background of the Case

The defendants were indicted for preparing to smuggle goods into Korea with intent to import them into this country under a false manifest or without declaring them to Customs.

While adjudicating the defendants’ appeal, the Seoul High Court sua sponte requested the Court on August 22, 2016, to review the constitutionality of the part concerning “Any person who commits a crime as referred to in Article 271 of the Customs Act shall be sentenced to punishment equivalent to that for a principal offender or principal crime in accordance with Section 2” in Article 6 Section 7 of the Act on Aggravated Punishment, etc. of Specific Crimes (the “Aggravated Punishment Act”) on the ground that it violated the

principles of responsibility and equality.

Subject Matter of Review

The subject matter of review in this case is whether the part concerning “Article 269 Section 2 of Article 271 Section 3 of the Customs Act” in Article 6 Section 7 of the Aggravated Punishment Act (amended by Act No. 10210 on March 31, 2010) (the “Provision at Issue”) violates the Constitution. The Provision at Issue and the related provisions read as follows:

Provision at Issue

Act on Aggravated Punishment, Etc. of Specific Crimes (amended by Act No. 10210 on March 31, 2010)

Article 6 (Aggravated Punishment of Offense against the Customs Act)

(7) Any person who commits a crime as referred to in Article 271 of the Customs Act shall be sentenced to punishment equivalent to that for a principal offender or principal crime in accordance with Sections (1) through (6).

Related Provisions

Act on Aggravated Punishment, Etc. of Specific Crimes (amended by Act No. 10210 on March 31, 2010)

Article 6 (Aggravated Punishment of Offense against the Customs Act)

(2) Any person who commits a crime referred to in Article 269 (2) of the Customs Act shall be punished aggravatingly as follows:

1. Where the cost of the imported goods exceeds five hundred million won, the person shall be punished by imprisonment for life or by imprisonment for not less than five years;

2. Where the cost of imported goods is not less than two hundred but less than five hundred million won, the person shall be punished by imprisonment for a limited term of not less than three years.

(6) In the case of Sections (1) through (5), a fine shall be concurrently imposed as follows:

2. In the case of Section (2), two times the cost of imported goods;

Summary of the Decision

1. Whether the principle of proportionality between responsibility and punishment has been violated

“Preparation for a crime,” an act that has not reached the

commencement stage for the commission of a crime, differs from “consummation of a crime,” an act that results in an actual infringement of, or endangerment to, legal interests？？in terms of form, possibility of infringement of legal interests, and degree of danger. Given these differences, it is clear that the two acts also vary in the degree of illegality and responsibility of the actor, and therefore the two shall be evaluated differently. However, preparation for a crime is subject to punishment equivalent to that for commission of that crime under the Provision at Issue. The Court finds that the Provision at Issue thereby imposes grossly excessive punishment for preparation for a crime.

The Court further notes that even though the degree of danger that preparation for a crime poses to society varies according to each case, the Provision at Issue inflicts the same punishment for both commission of a crime and its preparation presenting a low degree of social danger. As a result, a person who makes such preparation is sentenced to excessive punishment disproportionate to his or her responsibility.

Moreover, the Customs Act and the Aggravated Punishment Act provide a number of provisions to regulate customs offenders, who possess certain characteristics that pose a danger to society. Thus, it is not necessary to impose the same punishment for both preparation for a crime and commission of that crime in order to regulate customs offenders.

For the above reasons, the Court concludes that the Provision at Issue provides harsh punishment for preparation for a crime, foreclosing the possibility of meting out a penalty based on consideration of the individuality and distinctiveness of each act of preparation. Thus, the Provision at Issue violates the principle of proportionality between responsibility and punishment.

2. Whether the balance in the criminal punishment system has been lost and the principle of equality has been violated

If a person prepares to smuggle goods that cost less than two hundred million won into Korea, such person is sentenced to one-half the term of imprisonment or the amount of fine prescribed for the commission of smuggling under the Customs Act. However, if a person makes the above preparation to smuggle goods that cost two hundred million won or more into Korea, the person is sentenced to punishment equivalent to that for the commission of smuggling under the Provision at Issue, and the Court finds that there are no reasonable grounds to inflict aggravated punishment on him or her.

Moreover, the Aggravated Punishment Act has contained no provision imposing aggravated punishment for the preparation for a drug offense since its amendment deleted that provision. It also has no separate provision inflicting aggravated punishment for the preparation for a tax offense. In light of these facts, the Court questions whether it is necessary to mete out aggravated punishment for the preparation for smuggling.

Furthermore, the statutory punishment on a ringleader who prepares for insurrection, or the statutory punishment for preparing to commit homicide for purpose of insurrection, to commit inducement of foreign aggression, or to take side with enemy is less severe than one for the preparation for smuggling, notwithstanding that the illegality and responsibility of the actor of the first four acts are no lighter than those of the last mentioned. Taking this into account, the Court finds that the punishment prescribed by the Provision at Issue lacks legitimacy and is unduly severe.

Accordingly, the Provision at Issue disrupting the balance in the criminal punishment system violates the constitutional principle of equality.

* This translation is provisional and subject to revision.