A. Whether an accomplice shall additionally collect the amount from the Defendant in cases where he/she jointly owns or occupies goods imported by committing a crime of evading customs duties with the Defendant and sells them to a third party (affirmative)

B. The appellate court judgment aggravated punishment by applying Article 6(2)2 of the former Act on the Aggravated Punishment, etc. of Specific Crimes. In a case where the above legal provision is amended so that the defendant's act does not meet the elements of the crime after the sentence, whether it constitutes "when there is a change in the punishment after the judgment" under Article 383 subparag. 2

(a) If an accomplice, in collaboration with the Defendant, sells to a third party articles which were imported or possessed by the accomplice after evading part of the customs duties by deceit or other unlawful means, an amount equivalent to the domestic wholesale price at the time of the offense of the articles (which correspond to the ratio of the evaded tax amount to the total tax amount among all the articles) shall be additionally collected from the Defendant in accordance with Article 198(3) of the Customs Act.

B. On the ground that the amount of tax evaded by the defendant due to the criminal act stipulated in Article 180 of the Customs Act constitutes a case where the amount of tax evaded is five million won or more but less than twenty million won, applying Article 6 (2) 2 of the former Act on the Aggravated Punishment, etc. of Specific Crimes to punish the defendant by applying Article 6 (3) 2 of the same Act, and the judgment of the appellate court concurrently sentenced to a fine by applying Article 6 (3) of the same Act to the case where the amount of tax evaded by Act No. 4292 of Dec. 31, 190 is more than twenty million won, the above provision of the same Act to punish the person who committed the crime is amended so that there is a reason corresponding to "when the sentence is changed after the judgment" as stipulated in

A. Article 198(2) and (3) of the Customs Act; Article 383 subparag. 2 of the Criminal Procedure Act; Article 1(1) and (2) of the Criminal Act; Article 6(2)2 and (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 6(2)2 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 4291, Dec. 31, 1990); Article 180 of the Customs Act

A. Supreme Court Decision 83Do639 delivered on May 24, 1983 (Gong1983, 1037), 83Do2470 delivered on February 28, 1984 (Gong1984, 642), 84Do397 delivered on June 12, 1984 (Gong1984, 1237). Supreme Court Decision 90Do2560 delivered on January 25, 1991 (Gong191, 900), 90Do2927 delivered on February 8, 191, 191 (Dong)

Defendant

Defendant

Attorney Lee Dong-hee

Seoul High Court Decision 90No1968 delivered on October 12, 1990

The judgment of the court below is reversed.

The case is remanded to Seoul High Court.

1. Judgment on the first ground for appeal by the defense counsel

If the evidence admitted by the court of first instance (in particular, the fact that the defendant led to the confession of all crimes in the court of first instance as cited by the court below) is examined by comparing it with the records, it can be recognized that the defendant and the non-indicted 1, 2, and 3 jointly committed the preparation for the purpose of evading customs duties and defense taxes and evading customs duties and defense taxes by deceit or other unlawful means, and there is no error of law in violation of the rules of evidence or misunderstanding the legal principles as to the criminal intent of evading customs duties and co-offenders, such as the theory

2. Determination on the ground of appeal No. 2

If the evidence admitted by the court of first instance (in particular, the fact that the defendant led to the confession of all crimes in the court of first instance as cited by the court below) is examined by comparing it with the records, it can be recognized that all of the sound equipment listed in the list of crimes (1) attached to the written judgment of the court of first instance can be recognized as the facts that the non-indicted 1 jointly with the defendant and imported, imported, possessed, or occupied a part of customs duties by deceit or other unlawful means. If he owned or occupied the article and sold it to a third party, the amount equivalent to the domestic wholesale price at the time of the crime of the article (including the items corresponding to the ratio of the total tax amount evaded among all the items) in accordance with Article 198(3) of the Customs Act shall be collected from the defendant in accordance with Article 198(3) of the Customs Act. Thus, the judgment of the court below erred by misapprehending the rules of evidence inconsistent with the theory of lawsuit, or by misapprehending the legal principles on confiscation

The Supreme Court Decision 77Do3701 delivered on February 14, 1978 held by a party member who is able to bring a lawsuit in question is related to a case that differs from this case and thus it is inappropriate to invoke it in this case.

3. Determination ex officio.

The court below, on the ground that the defendant committed a crime as stipulated in Article 180 of the Customs Act, and the amount of tax evaded (gold 6,658,730 won) due to the criminal act listed in the [Attachment Table] No. 7 attached to the judgment of the court below is more than 5 million won and less than 20 million won, the court below added Article 6 (2) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes to punish the defendant by applying Article 6 (2) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes and imposed a fine by applying Article 6 (3) of the same Act. However, the court below imposed a aggravated punishment on the person who committed the crime under Article 4292 of the Act on Dec. 31, 190 and Article 6 (2) 2 of the same Act after the judgment of the court below was sentenced, and therefore, the above facts charged constitute "when there is a change in the sentence after the judgment" under Article 383 subparagraph 2 of the Criminal Procedure Act.

4. Therefore, the judgment of the court below which sentenced the above facts charged to other facts of crime and concurrent crimes under the former part of Article 37 of the Criminal Act shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges.

Justices Yoon Jae-ho (Presiding Justice)