Whether there is a contradiction in the reasons prescribed in Article 361-5 11 of the Criminal Procedure Act where the sentence of confiscation is omitted in the disposition while it is confiscated from the reason for the judgment.

If a judgment is to be confiscated in accordance with the necessary confiscation provisions, and the sentence is not pronounced in the order, it shall not be exempt from reversal because it constitutes a contradiction in the reasons.

Article 361-5 of the Criminal Procedure Act

Defendant

Prosecutor

Busan District Court (75 High Court Decision 75Gohap92)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

The fifty-five days of detention days prior to the pronouncement of the judgment below shall be included in the above sentence.

except that the execution of the above sentence shall be suspended for a period of two years from the date of the final decision.

The 5-day horizontal machines obtained, 55 Nowons, and 18-day visual revolvings (No. 1,2 and 3) shall be confiscated from the accused.

The gist of the reasons for appeal by the prosecutor is that the original judgment is too uneasy and unreasonable, so it is necessary to confiscate the articles of this case ex officio, and even though the original judgment does not declare the confiscation in its reasoning, it is not possible to dismiss the order and the reasons.

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act and the judgment is again ruled as follows.

Criminal facts and summary of evidence admitted by a member of the court below are the same as those of the court below, and they are cited.

On the other hand, the court below's ruling of the defendant, which falls under Articles 182 (2) and 180 (1) of the Customs Act, shall be punished by imprisonment with prison labor for one year within the scope of the term of punishment chosen by imprisonment with prison labor among the prescribed types of punishment under Article 182 (1) of the Customs Act. According to Article 57 of the Criminal Act, 55 days of the number of detention days prior to the sentence of the court below shall be included in the above punishment, and the defendant, as the first offender, did not refuse the solicitation of the non-indicted Kim Jong, and the crime itself was committed in violation of the above punishment, and it is reasonable to take into account the circumstances, such as the fact that the execution of the above punishment was suspended for two years from the day when the judgment became final and conclusive, and the evidence Nos. 1 through 3 of the seizured evidence is a part of the crime that the defendant occupies.

It is so decided as per Disposition.

Judges fixed right (Presiding Judge) Kim Jong-chul Kim Hun