Whether a separate crime of transferring cultural heritage is established where a person who illegally excavated cultural heritage transfers it to another person.

In case where a person who illegally excavated cultural heritage transfers, transports or keeps it to another person, it shall not be deemed that the so-called "ex post facto act" is a crime of transfer, etc. in addition to the crime of excavation of cultural heritage.

Article 61 of the former Cultural Heritage Protection Act (Law No. 2468)

Defendant 1 and four others

Prosecutor and Defendants

Seoul Criminal District Court (81 High Court Decision 638, 923)

Of the judgment of the court below, the part against Defendant 1 and the conviction against Defendant 2 shall be reversed, respectively.

Defendant 1 and 2 shall be punished by imprisonment with prison labor for up to two years and six months.

Of detention days prior to the pronouncement of the original judgment, 170 days shall be included in the calculation of Defendant 1, and 100 days shall be included in the calculation of the said sentence.

The appeal filed by the defendant 3, 4, and 5 and the appeal filed by the prosecutor against the defendant 2 shall be dismissed, respectively.

Of the number of days of confinement before the pronouncement of this judgment, 110 days each shall be included in the principal sentence of the judgment against Defendant 3 and 4.

However, with respect to Defendant 2, the execution of the above punishment shall be suspended for four years from the date this judgment becomes final and conclusive.

Attached No. 1 (Evidence No. 7 through 9) shall be confiscated from Defendant 1 in attached Form 2 (Evidence No. 1 through 28) from Defendant 2, respectively.

Defendant 1, 2, 4, and his defense counsel's appeal were dismissed. The court below found that the above defendants were not guilty on the part of the defendant 2, and that the defendant 2 was not guilty on the part of the defendant 3, and that the defendant 2 was not guilty on the part of the defendant 4, and that the defendant 2 was not guilty on the part of the defendant 6, and that the defendant 3 was not guilty on the part of the defendant 4, because the defendant 2 was not guilty on the part of the defendant 6, and that the defendant 2 was not guilty on the part of the defendant 4, and that the defendant 2 was not guilty on the part of the defendant 6, and that the court below did not guilty on the part of the defendant 2, despite the fact that the defendant 2 was not guilty on the part of the defendant 3, and that the court below found that the defendant 4 was not guilty on the part of the defendant 2, and that the defendant 2 was not guilty on the part of the defendant 3's old cultural properties.

Therefore, Defendant 1, 4, and 5's first point of appeal and second point of appeal, and second point of the first point of appeal, and second point of the second point of the defendant 3 and 5's first point of appeal, and each point of reply to inquiry of the fact-finding prepared by a member of the National Cultural Heritage Management Bureau at the request of the members of the members of the National Assembly and New Gun, the issue in this case is as follows: first, if non-indicted 4 discovered 5's relics from 2 kilometers, 197, 00, 00, 00,000, 00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00,00,00 won.

However, in case where a person who illegally excavated buried cultural properties transfers, transports or stores it to another person, it shall not be established separately from the crime of transfer, etc. of the buried cultural properties as a follow-up ex post facto act. Therefore, the court below is just in holding the defendant not guilty of the transfer of the excavated cultural properties to the same purport, and there is no misapprehension of the legal principles like the theory of lawsuit, and the argument is also groundless.

Finally, considering the third point of appeal of Defendant 1, 2 and 4, the second point of appeal of Defendant 3 and 5, and the second point of appeal of Defendant 2 against the prosecutor's defendant 2, the second point of appeal of unfair sentencing, that is, in light of the health care unit, the age and character of the defendants shown in the record, the character and conduct, the environment and the motive and means of the crime of this case, the result, the circumstances after the crime, etc., the sentence imposed by the court below against Defendant 3, 4 and 5 is not deemed to be too adequate and too excessive, and the sentence imposed on Defendant 1 and 2 is deemed to be unfair. Accordingly, it is reasonable to discuss the appeal of this point with respect to Defendant 3, 4 and 5 as well as the grounds for appeal of unfair sentencing, and the prosecutor's above appeal of the court below to the effect that the sentencing against Defendant 2 is too inappropriate.

Therefore, the appeal of this case by Defendant 3, 4, and 5 and the appeal by the prosecutor against Defendant 2 is without merit. Thus, each of them is dismissed pursuant to Article 364(4) of the Criminal Procedure Act and is included in the original sentence of the lower judgment against Defendant 3 and 4 every ten days out of the detention days prior to the pronouncement of the judgment in accordance with Article 57 of the Criminal Act. Since the appeal by Defendants 1 and 2 is well-grounded, pursuant to Article 364(6) of the same Act, the guilty portion of the lower judgment against Defendant 1 and the lower judgment against Defendant 2 is reversed, and it is so decided as follows.

The criminal facts recognized by the members of the party against the defendant 1 and 2 and the summary of the evidence are stated in each corresponding case of the judgment below, and therefore all of them are cited in accordance with Article 36 of the Criminal Procedure Act.

Article 61 (1) of the Protection of Cultural Properties Act and Article 30 of the Criminal Act apply to the excavation of each buried cultural heritage asset at the time of the above defendants' two primary crimes. Since the above defendants constitute a repeated crime under Article 35 of the Criminal Act and the above defendants' crimes are concurrent crimes under the former part of Article 37 of the Criminal Act, Article 38 (1) 2 of the same Act and Article 50 of the same Act stipulate that each of the above defendants' crimes constitutes a repeated crime under Article 42 of the same Act. Since the above defendants' above crimes are concurrent crimes under Article 38 (1) 2 of the same Act and Article 50 of the same Act, punishment of concurrent crimes under Article 2 of the same Act (in case of defendants 1, within the limit of the proviso of Article 42 of the same Act), each of the above defendants' above crimes should be included in the list of 1 to 20 years of punishment, and since there are reasons for 1 to 20 years of punishment for each of the above defendants to be included in the above crimes under Article 538 (1 of the same Act).

Judges Kim Young-jin (Presiding Judge)