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무죄
부산고법 1988. 6. 2. 선고 87노194 제1형사부판결 : 확정
[특정범죄가중처벌등에관한법률위반(관세)등][하집1988(2),311]
Main Issues

The case holding that innocence is not guilty on the ground that there is no proof of criminal facts;

Summary of Judgment

In appraising whether the Orlver for the ship imported by the defendant constitutes used goods, which are import-restricted goods, the staff of the Korea Institute of Machinery and Research who received an appraisal request at the request of the witness of the court below, who is a customs assistant, did not obtain the qualification to appraise the Orller. There was no experience in using or appraising the said goods before conducting the appraisal in this case, and even in the above appraisal, there was no investigation as to which part of the machinery is serious, and there was no indication that there is any error in the machinery. In light of the above, the contents of the above witness's statement and the notice of the results of the appraisal cannot be deemed to be a judgment in terms of the professional position. Rather, according to the contents of other appraiser's written appraisal by the court below and the statement by the court of the court below at the court of the same person, it cannot be concluded to be used goods only with the reason that the outside Duller newly tur and the part of the machinery was melted.

[Reference Provisions]

Articles 169 and 308 of the Criminal Procedure Act

Escopics

Defendant

Appellant. An appellant

Defendant and Prosecutor

Judgment of the lower court

Busan District Court (87 High Court Decision 657)

Text

The judgment of the court below is reversed.

The defendant shall be innocent.

Reasons

1. Grounds for appeal;

The gist of the defendant's appeal Nos. 1 is that the five Olives for ships listed in the attached list imported by the defendant is old, and five Olives for ships are not used goods, but used goods, but the court below accepted non-indicted 1's statement which is non-indicted 1 witness who is an employee of the Korea Institute of Machinery without qualification for appraisal as evidence and found the defendant guilty of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Customs Duties) by misunderstanding facts in violation of the rules of evidence. The gist of the appeal No. 2 is that the court below erred in the judgment of the court below which affected the conclusion of the judgment by misunderstanding facts in violation of the rules of evidence, and the summary of the appeal No. 2 is that the court below's decision of this case's sentencing is unfair since the defendant's act of bringing two Olives in Korea on Nov. 1, 1986 as stated in Paragraph 2, 19.

2. Determination on the grounds for appeal

First, the grounds for appeal by the defendant are examined in the first place.

According to the reasoning of the judgment below, the court below consistently found the defendant's non-indicted 2's non-indicted 5's non-indicted 2's non-indicted 2's non-indicted 1's non-indicted 2's non-indicted 5's non-indicted 2's non-indicted 2's non-indicted 5's non-indicted 2's non-indicted 5's non-indicted 2's non-indicted 2's non-indicted 5's non-indicted 2's non-indicted 5's non-indicted 5's non-indicted 2's non-indicted 5's non-indicted 2's non-indicted 5's non-indicted 2's non-indicted 5's non-indicted 2's non-indicted 5's non-indicted 2's non-indicted 1's non-indicted 3's non-indicted 1's non-indicted 1's non-indicted 3's non-indicted 3's non-indicted 5's non-indicted 2's non-indicted 5's non-2's non-indicted 8's non-2'

First, the court below's non-indicted 4 stated that the non-indicted 5's internal melter's melter's clocks were re-written at the court, and that the non-indicted 5's internal melter's cocker's cocker's clocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cocker's cock.

Then, among the statement of the second protocol of interrogation of the accused in the prosecutor's protocol of interrogation of the accused, the defendant sold 2 Oclur 1.1. 1. 1. 1. 1986 to non-indicted 6, that he sold 90% of the Oclur 1 to non-indicted 6, and the prosecutor's question of " what is that it is so called" is "not perfect, but that used goods have been manufactured for a considerable period of time," but according to the witness non-indicted 6's statement in the court of the court below, he thought that the above Oclur 2 was old, and the machinery was not clear, and that the above Oclur 2 was not suitable in the Japanese vessel owned by him, and that he purchased the above Oclur 2, which was old, and that he refused to make the above statements in the prosecutor's office as evidence and the fact that the above statements were non-indicted 1's newly made in the prosecutor's office without any reason to acknowledge that it was an Oclur 2's statement in the above.

If so, the court below found the defendant guilty on the premise that the five charges in this hour were used goods, the import of which is limited under the Customs Act, without a license, was made on the premise that it was in violation of the rules of evidence, and the facts were found without any evidence, thereby affecting the conclusion of the judgment. In other words, the defendant's appeal is justified without any further determination as to the remaining grounds for appeal and the reasons for appeal by the prosecutor, and thus, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows. The summary of the facts charged in this case is that the defendant engages in the Do. retail business of the vessel parts, etc., with the trade name (trade name omitted) from Busan (Scupb omitted). On September 1986, 1986, the defendant was a person who, at the other hotel hotel shop located in the Jung-gu Busandongdongdong, Japan, Japan, and 20,000 Japan, or the defendant, who was the defendant, 2000 new goods that were imported.

1. On October 21, 1986, at the office of the non-indicted 7 corporation located in Jung-gu, Busan (Skon omitted), the non-indicted 2 entered into an import agency contract with the non-indicted 2 and the non-indicted 2 entered into an import agency contract with the non-indicted 2 and the non-indicted 2 entered into a letter of credit with the approval of import equivalent to the sum of the cost of goods 7,238,144 won as stated in No. 1 and No. 2 stated in the attached Table No. 1 and No. 2 as stated in the attached Table No. 2 as if the new goods were the new goods. On November 21, 1986, the non-indicted 2 moved the above two main goods to be seen as new goods according to the defendant's prior mother, loaded them to Busan, and brought them into Busan on April 20, 1987. The defendant attempted to import the goods without obtaining a license from the head of Busan customs office.

2. On March 17, 1987, a letter of credit was issued with the approval from the head of the above bank from the head of the above bank to import the amount equivalent to 3 Olllura stated in Nos. 3, 4, and 5 of the [Attachment List Nos. 3, 3, 25,028, 156 won total of the cost of goods and 25,028, 156 won. On April 20 of the same year, the above method stated that the above goods were imported without obtaining a license from the head of the Busan Customs Office because it was falsely reported as if the above goods were new goods and attempted to pass customs clearance and attempted to import the above goods without obtaining a license from the head of the Busan Customs Office. However, as stated in the reasons for reversal, the facts charged in this case constitute a case where there

It is so decided as per Disposition for the above reasons.

Judge Ansan-tae (Presiding Judge)

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참조조문

- 형사소송법 제169조

- 형사소송법 제308조 (위헌조문)

본문참조조문

- 특정범죄가중처벌등에관한법률 제6조 제4항 제2호

- 형사소송법 제364조 제6항

- 형사소송법 제325조

원심판결

- 부산지방법원(87고합657 판결)