The judgment of the court below is reversed.

Supreme Court Decision 2005Do5822 Decided October 28, 2005 see the Defendants’ respective fines 5,500.

1. Summary of grounds for appeal;

A. As to the part of the facts constituting the crime of violation of the Customs Act by smuggling import among the facts stated in the judgment of the court below against the Defendants, since it is impossible to confiscate 408 items, including the Korean Rab, etc. listed in the attached Table 2 (Smuggling import) since they were not seized, the amount of KRW 172,68,640, which is the value thereof, should be collected from the Defendants. However, the judgment of the court below which omitted it is erroneous in the misapprehension of legal principles as to necessary additional collection under the Customs Act, which affected the conclusion

B. The lower court’s respective sentences (a fine of five million won) imposed on the Defendants are deemed to be too uneasible and unfair.

2. Judgment on the misapprehension of legal principles as to the Defendants by the prosecutor

A. According to the relevant legal doctrine and the main text of Article 282(3) and (2) of the Customs Act, goods imported in violation of Article 269(2) of the Customs Act shall be subject to necessary forfeiture, and when the whole or part of goods subject to forfeiture cannot be forfeited, an amount equivalent to the domestic wholesale price at the time of offense of the goods subject to forfeiture shall be additionally collected from an offender.

On the other hand, the additional collection under the Customs Act, unlike the additional collection under the general criminal law, is of a punitive nature, and if many people conspired to import smuggling, or acquire, transfer or appraise the smuggling, if one of the offenders owns or occupies the goods, the additional collection can be made by all of the offenders, regardless of whether the goods are owned or possessed, in full the value equivalent to the domestic wholesale price at the time of the offense.

(see, e.g., Supreme Court Decision 2006Do455, Jan. 17, 2008). Meanwhile, Article 266 of the Enforcement Decree of the Customs Act “domestic wholesale price” in Article 282(3) of the Customs Act means that wholesalers purchase imported goods from traders and sell them in the domestic wholesale market in a fair transaction manner.