Cases where there is an error of law by mistake in the comparison of the old and new law;

A. At the time of the trial of the first instance (68.4.30), it is not possible to apply Article 180(1) of the Customs Act (No. 68.1.1.1.1.1.6) with respect to collective crimes of evading customs duties recognized by the first instance court. Since it is apparent that the punishment prescribed by the above provision is shorter than that prescribed by Article 6(6) of the former Act on the Aggravated Punishment, etc. of Specific Crimes, which is applied by the first instance court, and Article 198(1) of the former Customs Act, the above legal application of the first instance court is erroneous.

(b) If there is any change in the several Acts and subordinate statutes between the time of action and the time of trial, even though there is no assertion by the parties to this point, the adjudication shall be conducted ex officio under paragraph 2 of this Article by applying the light of the most punishment, by comparing the severity of the punishment ex officio under Articles 1 and 2.

Article 1(2) of the Criminal Act; Article 180 of the former Customs Act; Article 180(1) of the Customs Act (Law No. 1976); Article 1 of the Criminal Procedure Act; Article 364 of the Criminal Procedure Act

68Do914 decided September 17, 1968

Defendant

Busan District Court Decision 68No167 delivered on September 12, 1968, Busan High Court Decision 68No167 delivered on September 12, 1968

The original judgment shall be reversed, and

The case shall be remanded to the Daegu High Court.

On the other hand, the first instance court reviewed the application of the law in the judgment of the court of first instance on the ground that there is a change in the law after the crime was committed against the collective act of evading customs duties of the defendant as stated in the judgment, the court of first instance compared the warning of punishment pursuant to Articles 1(2) and 50 of the Criminal Act, provided that the prescribed punishment of the Customs Act as amended by Act No. 1976 of Jan. 1, 1968 does not exceed the prescribed punishment of the former Customs Act before the amendment, so the defendant should be punished pursuant to the former Act, and the judgment of the defendant falls under Article 6(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 198(1) of the former Customs Act.

However, at the time of the trial of the first instance (1968 April 30), Article 180 (1) of the Customs Act cannot be applied to collective crimes of evading customs duties recognized by the first instance court (the current Act on the Aggravated Punishment, etc. of Specific Crimes was amended by Act No. 2032, Jul. 15, 1968; and it cannot be applied to the preceding amendment from Jan. 1, 1968 to the time of enforcing the above Act, Article 6 (6) of the former Act on the Aggravated Punishment, etc. of Specific Crimes to punish collective acts of evading customs duties (see Supreme Court Decision 68Do914, Sept. 17, 1968). Since it is apparent that the sentence applied by the first instance court is lower than that applied by the first instance court, the court below erred by misapprehending the new and new provisions of the Act, which should be applied by the assent of all Justices at the time of the trial of the first instance, and thus, the court below's decision should be reversed by applying the above provisions of the first instance court's decision ex officio.

The presiding judge of the Supreme Court (Presiding Judge) of the Red Marins (Presiding Justice)