Scope of additional collection under the Customs Act

According to Article 198 of the Customs Act, if it is impossible to confiscate all or part of the goods to be confiscated pursuant to Articles 180 and 186 of the Customs Act, the goods refer to the domestic wholesale price of the goods at the time of the offense, thereby securing customs revenue, and preventing the transaction of the goods in violation of the Customs Act or the value of the goods in violation of the Customs Act from being in the number of offenders. Thus, if the goods in violation of the Customs Act are assigned to many persons in succession as in this case, it is interpreted that the first or last one of them cannot be exempted from collection, and the court below is justified to have collected the equivalent amount from each of the defendants.

Articles 198, 180, and 186 of the Customs Act

Supreme Court Decision 71Do158 delivered on March 23, 1971 (Supreme Court Decision 9490 delivered on September 21, 1971; 199Do1394 delivered on September 24, 1971, Supreme Court Decision 71Do1394 delivered on September 24, 1971 (No. 19840 delivered on September 26, 197, Supreme Court Decision 73Do974 delivered on June 26, 1973 (No. 10512 delivered on June 26, 197, Supreme Court Decision 21Du31 delivered on June 21, 201, Article 6(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes (No. 468 delivered on July 347, 1976), Article 76Do1394 delivered on August 24, 1976, Article 194

Defendant 1 and two others

Prosecutor and Defendant

Busan District Court Msan Branch Court (68Da818)

The part concerning Defendant 1 among the judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for three years.

One hundred days of detention days prior to the pronouncement of the original judgment shall be included in the original sentence.

However, the execution of the above punishment shall be suspended for five years from the date of the final judgment.

For the 60,615kiggs confiscated from the same defendant (No. 1 in the last office of the District Prosecutors' Office in Busan District Prosecutors' Office, No. 1968, No. 377), card loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan loan

Defendant 1’s appeal is dismissed.

Each appeal by Defendant 2 and 3 and each appeal by the same prosecutor is dismissed.

The grounds for appeal by Defendant 1 and the summary of the grounds for appeal by the defense counsel are as follows.

First, the court below erred in misunderstanding the facts in violation of the rules of evidence. In other words, among the evidence adopted by the court below in finding the facts, the judicial police officer's handling of affairs, the prosecutor's statement of the prosecutor's preparation is without any consent, and there is no admissibility or it is no evidence to calculate the duty evasion amount based on the appraisal statement or presumption appraisal statement that does not meet the actual market price. Thus, it is not erroneous in finding the defendant 1 guilty on the ground that there is no evidence as to the facts charged. Second, it is obvious that the law on the Aggravated Punishment of Specific Crimes cannot be applied in March or May of 1968, which is the time when the defendant 1 committed the crime. Third, the court below erred in the application of the above law on the Aggravated Punishment of Specific Crimes, and the court below's error in failing to reduce the number of the defendant 2, and fourth, even if the above defendants' conviction is acknowledged, the court below erred in the misapprehension of the legal principles as to the defendant's family members, and it is hard to find that the above defendants were guilty.

The summary of the grounds for appeal by Defendant 3 is as follows. First, the court below erred in the misunderstanding of facts against the rules of evidence and mispercing of facts. In other words, the defendant's purchase of green materials as stated in the judgment of the court below is not a pre-explosive import prohibited product, and it is more likely that green materials are imported in the market without doubt as to whether it is an import prohibited product, and it is sold in the market, and it is more high than the market price in this case's green transactions. In light of these circumstances, it is clear that the defendant was sealed. However, it is obvious that the court below did not agree with the evidence, and it was found that the defendant was guilty on the grounds of the evidence statement of the preparation of judicial police administrative affairs without any voluntariness and the written evidence of the prosecutor's preparation without any voluntariness and the written evidence of appraisal or presumption appraisal without any basis for the real market price. Second, even if it is found that the defendant erred in the misapprehension of facts based on the rules of evidence, the court below's finding that it is highly erroneous.

The gist of the grounds for appeal against the Defendants by the prosecutor is as follows.

(1) As to Defendant 1, the lower court erred by failing to apply the Act on the Aggravated Punishment, etc. of Specific Crimes, and the sentencing is very unfair.

In other words, Article 6 (2) (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that a person who violates Article 198 of the former Customs Act (Act No. 1688) shall be subject to aggravated punishment. Since Article 198 of the former Customs Act was completely amended by Act No. 1976 of Nov. 29, 1967, and Article 198 of the former Act is only a change in the arrangement of the provisions under Article 180 as new law, there is an error of not applying Article 180 of the new law even though it is applied as a matter of course in applying the Aggravated Punishment Act.

(2) Although Defendant 2 is deemed to have voluntarily surrendered in the form, it is recognized that Co-Defendant 1 and Defendant 3 were arrested, and that Co-Defendant 1 and Defendant 3 were habitually sealed while departing from Japan once every month from the beginning of 1967, and thus, it should be sentenced to the punishment in accordance with the prosecutor’s old sentence and the fine should be imposed concurrently, and thus, it is necessary to prevent recidivism. However, the amount of the judgment of the court below, which sentenced the suspension of execution, is unreasonable, and the seized vessel is owned by the defendant in the form, but in substance, the ownership of the defendant is not clear and should be confiscated as a smuggling exclusive.

(3) Defendant 3 provided Co-Defendant 1 with a smuggling of KRW 1.2 million and accused Defendant 1 as co-defendant 1 and co-defendants, but the Defendant denied that the Defendant was merely a monetary lending relationship, and thus, it can be acknowledged that Defendant 1 and co-offenders were actually indicted under Article 186 of the Customs Act, but Defendant 1 did not purchase melt from that person in order to reduce the criminal amount of Defendant 1’s crime. In addition, Defendant 3’s punishment is deemed unfair because the punishment was imposed on the sentence of imprisonment with prison labor for one year and two years of suspended execution, and the fine was not imposed concurrently.

(1) First, we examine the grounds of appeal on the mistake of facts by Defendant 1 and 3.

The evidence duly admitted by the court below (the defendants acknowledged the authenticity and voluntariness of the interrogation protocol against the defendants prepared by the public prosecutor, and each protocol prepared by the investigation agency pursuant to the court below's decision is clear that the defendants were admitted as evidence in violation of the law that conforms to the statements in the court below's process, and if the appraisal statement or presumption appraisal statement are made by customs officers as a document prepared in the course of performing their duties, it can be recognized as facts such as the approval of the court below, and it is not recognized that the court below erred in the adoption of evidence and the determination of evidence in finding the facts, and therefore, it is not reasonable

(2) In light of the judgment of the court below, it is not clear in the original text that Defendant 1 did not apply the Act on the Aggravated Punishment, etc. of Specific Crimes, i.e., the premise of the application of the Act on the Aggravated Punishment, etc. of Specific Crimes, in the application of the law against Defendant 2, even though it is the same as the theory of lawsuit that did not reduce self-denunciation in the application of the law against Defendant 2

(3) According to Article 198 of the Health Unit Customs Act, if it is impossible to confiscate all or part of the goods to be confiscated pursuant to Articles 180 and 186 of the Health Unit Customs Act, the domestic wholesale price of the goods not confiscated at the time of committing the offense shall be collected from the offender with an amount equivalent to the domestic wholesale price at the time of the offense.

This provision means that the owner of an article in violation of the Customs Act or the value of the article in violation of the Customs Act or the article in violation of the above provision intends to take the body of the article in violation of the law by prohibiting the owner from taking the article in violation of the law. Thus, if the article in violation of the law has been transferred to several persons in succession like the previous one, it cannot be interpreted that the article in violation of the law has been confiscated or collected from the first or last one, and the other person has been exempted from the collection. Therefore, there is no argument that the court below's collection of the article in violation

(4) In light of all circumstances under which the appellate brief’s grounds for appeal is attached to the judgment of the court below, the determination of the sentence against the above Defendants is not deemed to be adequate and high, or to be light, because the judgment of the court below is not acceptable, since the appellate brief’s grounds for appeal against the Defendants 2 and 3 and the prosecutor’s grounds for appeal are groundless.

(5) In light of Article 6 (6) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 1744, Feb. 23, 1966) and Article 6 (6) of the same Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 1744, Feb. 23, 1966), a person who commits a crime collectively and habitually under Articles 197 through 198-3 or 200 of the Customs Act shall be punished by death penalty, imprisonment for life or for not less than ten years. Article 197 of the current Customs Act provides that Article 198 of the same Act on the exemption of liability is a provision on the collection of penalties, and Article 200 of the same Act provides that all of the requirements of prosecution are the elements of crimes (Article 9 of the Criminal Act does not apply to the current Customs Act). Accordingly, this case cannot be accepted.

(6) The prosecutor asserts that each vessel carrying this case's illegal goods against the defendant 1 and 2 should be confiscated. However, according to the records, the vessel's vessels for the purpose of exporting the vessel to Japan are the ocean-going vessel, and the above defendants were loaded with illegal goods either as the crew of the above vessel, and they are recognized to have been loaded with illegal goods. Thus, the court below should not be deemed to be the vessel exclusively used for smuggling. Thus, the court below did not confiscate this.

(7) In light of the circumstances, including Defendant 1 and the prosecutor’s grounds for appeal, and the fact that the Defendant did not go to Japan for the purpose of smuggling, but did not go to Japan, and the value of the smuggling goods is enormous, and the Defendant attempted to commit an intelligent crime by cutting down the means of transport of smuggling goods, the amount of the sentence of the lower court’s judgment is deemed to be unreasonable, and therefore, it is reasonable for the prosecutor to discuss this issue. Thus, we cannot accept the Defendant’s appeal that the amount of the sentence of the lower court is unreasonable because the amount of the sentence of the lower court is unreasonable.

Therefore, since each appeal by the Defendants and the prosecutor against the Defendants 2 and 3 is without merit, the appeal by the prosecutor is dismissed pursuant to Article 364(4) of the Criminal Procedure Act, and the prosecutor’s appeal against Defendant 1 is with merit, and therefore, the judgment of the court below is reversed and the decision is to be rendered again in accordance with Article 364(6)

Criminal facts and evidence against Defendant 1 recognized in the trial of the trial court are the same as the entry of the judgment of the court below in the appearance of the same defendant's statement in the trial of the trial.

According to Article 180 (1) (B) of the Customs Act, the first 5th judgment of the court below is as follows. According to Article 182 and Article 180 (1) of the Customs Act, Article 6 (7), (2) 2 and (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 180 (1) of the Customs Act, and Article 180 (1) of the Customs Act, the first 5th judgment of the court below is 6th 7th 7th 7th 7th 7th 7th 7th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 1st 6th 6th 1st 6th 6th 6th 1st 6th 6th 1st 6th 6th 1st 6th 1st 6th 1st 6th 1st 6th 1st 6th 1st 6th 1st 6th 6th 1st 6th 3.

Judges Kim Young-ro (Presiding Judge)