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The judgment below
The penalty collection portion shall be reversed.
12,9490,000 won shall be additionally collected from the defendant.
The above additional collection charge.
Reasons
1. Summary of grounds for appeal;
A. misunderstanding of facts or misunderstanding of legal principles (as to the portion of additional collection), 1,567 forged lazers imported by the defendant is not wholly identical goods, but the actual selling price is 70,000 won to 1.60,000 won.
Nevertheless, the lower court uniformly calculated a surcharge with the domestic wholesale price of KRW 1.60,000 for each forged package.
B. The sentence imposed by the court below on the defendant (no. 10 months of imprisonment, No. 5 and 6, confiscation of 250,720,000 won) is too unreasonable.
2. Determination
A. Article 282(3) of the Customs Act provides that when an offender cannot confiscate the goods from an offense such as smuggling import, etc., an amount equivalent to the domestic wholesale price of the goods that cannot be forfeited at the time of offense shall be additionally collected from the offender.
Here, “domestic wholesale price” means the price at which a wholesaler purchases imported goods from a trader and openly sells them in the domestic wholesale market in a fair transaction manner.
(Article 266 of the Enforcement Decree of the Customs Act). In the case of this case, the price of the goods imported by the defendant cannot be calculated for the goods stored in the domestic wholesale market using a forged D trademark attached at a fair transaction method at the domestic wholesale market. Accordingly, the court below collected 250,720,000 won (i.e., 160,000 won per unit x 1,567) based on the amount entered in the appraisal statement (Evidence No. 546 or 548 of the evidence record) calculated at the market price of the specific offense.
On the other hand, the “sale price entered on counterfeited DNA sales site”, which is the basis for calculating the market price stated in the appraisal document, is 9% of the 160,000 won product at the website on the 53 R sales site of evidence records.
“The value is different for each model” at an investigative agency.