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The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 3,000,000.
The above fine shall not be paid by the defendant.
Reasons
1. Summary of grounds for appeal;
A. Since all customs clearances, etc. related to the importation of nicotine solution are about A, the Defendant was unaware of what contents the customs office reported, and the Defendant sold electronic tobacco to retail customers found in the office, but there was no participation in the import or agency solicitation of tobacco, and the Defendant was unaware of the fact that he imported a mixture of ingredients constituting food additives, the lower court found the Defendant as co-offenders with A and convicted him.
B. The lower court’s sentence of unreasonable sentencing (a fine of KRW 3 million and penalty of KRW 33,059,200) is too unreasonable.
2. Determination
A. We examine ex officio prior to the judgment on the grounds for appeal by the defendant for ex officio judgment.
① According to Article 278 of the Customs Act, Article 38(1)2 of the Criminal Act excludes a person who commits an act in violation of penal provisions under the Customs Act from applying the provision on aggravation of restriction on concurrence of fines. As such, with respect to several concurrent crimes under the former part of Article 37 of the Criminal Act, a fine shall be separately imposed for each of such crimes, and the same shall apply to a crime in violation of the Customs Act in cases where a crime other than a crime of violating the Customs Act and a crime of violating the Customs Act are concurrent crimes under the former part of Article 37 of the Criminal Act.
(2) Article 38(1)2 and Article 50 of the Criminal Act applies to the violation of the Tobacco Business Act and each violation of the Food Sanitation Act as indicated in the judgment below. Thus, the court below should have determined one of the fines separately for each of the crimes of violation of the Customs Act as stated in the judgment of the court below. The court below should have specified each of the above crimes as stated in the order of the court below or reasons.