Defendant 1 and one other

Defendants

At the port of prosecution, purification, and public trial.

Attorney Lee Gi-soo et al.

Seoul Central District Court Decision 2016 Height8254 Decided January 12, 2017

All appeals by the Defendants are dismissed.

Of the judgment of the court of first instance, the additional collection amount for Defendant 2 (Defendant: Defendant) shall be corrected from “90,861,400 won” to “90,851,400 won”.

1. Summary of grounds for appeal;

A. Defendant 1 (De facto mistake, unreasonable sentencing)

(i)misunderstanding of facts (related to paragraph 1 of the crime in the judgment of the first instance)

The Defendant, knowing to the food, was in custody in a warehouse with Nonindicted Party 1’s request, and was in custody in the warehouse, and did not know at all that he sent the goods according to his instructions, and was not aware of the fact that he was melted domestically. Therefore, the Defendant did not import the Chinese melter in collusion with Nonindicted Party 2, etc.

【Unjustifiable sentencing

The punishment of the first instance (one year of imprisonment, additional collection: 280,923,910 won) shall be too unreasonable.

B. Defendant 2 (misunderstanding of legal principles as to collection and unreasonable sentencing)

(i)The misunderstanding of legal principles as to collection

In calculating the amount of additional collection for the accused, the first instance court’s order for additional collection of KRW 90,861,400,000, calculated as the domestic wholesale price according to the “Market Price Rate Table” as to the domestic wholesale price for the domestic records of this case. However, considering that the domestic wholesale price of the domestic melter in the same weight is approximately KRW 57,750,00,000, the amount of additional collection pursuant to the “Market Price Rate Table” is unlawful.

【Unjustifiable sentencing

The punishment of the first instance (fine 10 million won) is too unreasonable.

2. Determination:

A. As to Defendant 1’s assertion of mistake of facts

(1) The Defendant asserted the same purport in the first instance trial, but the first instance court found the Defendant guilty on all the charges of the Defendant by integrating the evidence duly adopted and examined, and rejected the Defendant’s above assertion on the grounds of detailed reasons under the title “determination on the Defendant 1 and the defense counsel’s assertion.”

Examining the above fact-finding and judgment of the first instance court in comparison with the records, the first instance court's decision that the defendant was well-known in collusion with the non-indicted 2, etc. is just and acceptable, and there is no error of law by mistake of facts affecting the judgment.

Fidelityly, this part of the defendant's argument is without merit.

B. As to Defendant 2’s assertion of misapprehension of the legal principle on additional collection

(1) The domestic wholesale price under the Customs Act refers to the price of domestic wholesale prices, including taxes such as customs duties, customs procedure costs, and appropriate profits of enterprises, at the cost of arrival of the goods. Moreover, as long as the domestic wholesale price is calculated based on the market price chart, which is one of the calculation methods of domestic wholesale price, including taxes such as customs duties, customs procedure costs, and reasonable profits of enterprises based on the arrival price or appraised price of the goods, it cannot be deemed unlawful in calculating the domestic wholesale price under the market price chart unless there is any material different from the actual price of the domestic wholesale price calculated by such method (see Supreme Court Decision 97Do3297, Jun. 26, 1998, etc.).

D. Although the domestic wholesale price of the domestic melting liquid in the instant case, computed in accordance with the Market Price Schedule, as alleged by the Defendant, is remarkably higher than the domestic melting liquid in the same quantity, such circumstance alone cannot be readily concluded that there is a difference between the domestic wholesale price of the domestic melting liquid in Korea and the domestic melting liquid price calculated in accordance with the Market Price Schedule, and otherwise, there is no evidence to deem that the calculation of the domestic wholesale price in accordance with the Market Price Schedule is unlawful. Ultimately, the Defendant’s above assertion is without merit.

C. As to the assertion of unreasonable sentencing

In this case where there is no change in the sentencing conditions that would be particularly considered in the appellate trial, the first instance court’s sentencing is difficult to be deemed to be unfair because the first instance court’s sentencing is too excessive beyond the scope of discretion, in full view of various circumstances, including the Defendants’ age, character and conduct, environment, health condition, family relationship, motive, means and consequence of the crime, and the circumstances after the crime. Accordingly, the Defendants’ assertion is without merit.

3. Conclusion

Therefore, since the defendants' appeal is without merit, it is dismissed under Article 364(4) of the Criminal Procedure Act, and it is so decided as per Disposition by the assent of all participating Justices on the bench to correct the additional collection amount of Defendant 2 as “90,851,400 won” under Article 25(1) of the Regulation on Criminal Procedure.

Judges Kim Sung-dae (Presiding Judge)

(1) According to the records, it is recognized that Nonindicted 2 and Nonindicted 3, who are the co-offenders of the instant crime, paid KRW 10,00,00 as part of the additional collection charge on August 22, 2016, by Defendant 2, as the Seoul Central District Court (Seoul Central District Court) 123,270,580 [the amount of additional collection imposed on Defendant 2 [32,409,180km (the part ordering Defendant 2 to be confiscated) of domestic melting 32,409,180 + the amount of additional collection imposed on Chinese melting 7,000 kilograms (the part ordering Defendant 2 to collect additional collection) + KRW 90,861,40,000] on the ground that the amount of additional collection imposed on Defendant 2 is not simply an amount of KRW 90,851,400 (the part ordering Defendant 2 to collect additional collection from the court of first instance, 100,10000 won].