Whether the imported items at the preliminary stage of customs duties and defense cells are included in those subject to forfeiture under each subparagraph of Article 48(1) of the Criminal Act.

Article 198(2) of the Customs Act provides that goods owned or possessed by an offender shall be confiscated in the case of Articles 180(1) and (2), 181, and 186 of the same Act, but since there is no provision on confiscation with respect to the crime of evading customs duties under Article 182(2) of the same Act, it shall be determined in accordance with Article 48 of the Criminal Act. Accordingly, the imported goods from customs duties and defense cells do not fall under any of the subparagraphs of Article 180(1) of the same Act, so they shall not be confiscated.

Article 48(1) of the Criminal Act, Article 198 of the Customs Act

Defendant 1 and one other

Defendants and Prosecutor

Seoul District Court (89 High Court Decision 799)

All the judgment below is reversed.

Defendants shall be punished by imprisonment for two years and six months and by a fine of forty thousand won.

In the event that the defendants did not pay the above fines, the defendants shall be confined in the old house for the period calculated by converting the above fines of KRW 200,000 into one day.

Of detention days before the sentence of the lower judgment, 160 days shall be included in the calculation of Defendant 1, and 30 days shall be included in the said imprisonment.

However, the execution of each of the above imprisonment shall be suspended for three years from the date of the final judgment.

Each of the Defendants shall be additionally collected KRW 297,122,764 from the Defendants.

An order to pay an amount equivalent to each of the above fines shall be issued.

The gist of the grounds for appeal against the Defendants by the public prosecutor is as follows: although the Defendants did not have a previous record, they committed planned harm to the national economy to pursue their economic interests, and in a large scale, the amount of evasion tax reaches 50 million won, the determination of each punishment against the Defendants is unfair because the amount of tax evasion is too inappropriate; and the gist of the grounds for appeal against the public defender Kim Jong-ok and the defense counsel's attorney-at-law's appeal for the Defendants whose appointment has been revoked and the summary of the grounds for appeal against the above defendant 1 is as follows: (a) the Defendants confession each of the facts of the above crimes in a timely manner, and even if their mistake is unrecognified in depth; and (b) the Defendants did not commit the above crimes, even though they did not have any influence on the current property status or income of the Defendants, the court below erred in the misapprehension of legal principles as to the above crimes and in the misapprehension of legal principles as to the punishment of the defendant 2, despite being sentenced to additional collection by the defendant 1 and the defendant 2.

Therefore, in light of the records and records of Defendant 2’s assertion of mistake of facts and misapprehension of legal principles as to Defendant 2’s invitation of counsel, the above Defendant’s crime of this case can be sufficiently recognized, and even if examining the case records, there is no error of law as pointed out in the court below’s argument in the process of fact-finding, and there is no illegality of misunderstanding of legal principles as to co-principals.

In addition, the whole goods to be confiscated cannot be confiscated in a case of violation of the Customs Act, and if there are many criminal offenders, it is necessary to order each criminal offender to collect the whole price, so even though the above criminal defendant was sentenced to an additional collection, it is not possible to impose the additional collection on the above defendant. Thus, there is no ground for misunderstanding the legal principles as to the additional collection of the above defense counsel

Next, prior to the judgment on the grounds for appeal of unfair sentencing by the prosecutor and the defense counsel of the Defendants, the lower court ex officio examined the grounds for appeal by the Defendants, and the lower court additionally collected an amount equivalent to the domestic wholesale price at the time of the offense from the Defendants on the grounds that each sound device of the attached Table (2) in the attached Table of Crimes (2) is an offence subject to the duty evasion preliminary offense, but is impossible to confiscate.

However, each sound device in the attached list of crimes (2) is an element of a crime of duty evasion, but in the case of Article 198 (2) of the Customs Act, Article 180 (1) and (2), Article 181 or Article 186 of the Customs Act, the goods owned or possessed by the offender are confiscated, and there is no provision of confiscation as to the crime of duty evasion (Article 182 (2) of the Customs Act), it shall be determined pursuant to Article 48 of the Criminal Act. Since the imported goods in the attached list of crimes (2) are those provided or intended to be provided for a criminal act under Article 18 (1) of the Customs Act, or those obtained as a result of the criminal act or those acquired as a result of the criminal act, they cannot be confiscated from the defendants, and therefore, it cannot be collected as a penalty because the above goods cannot be confiscated.

Therefore, the court below's decision is reversed in accordance with Article 364 (2) of the Criminal Procedure Act, and it is so decided as follows.

The summary of facts and evidence against the defendants recognized as a party member is the same as that of the judgment of the court below, and this is cited in accordance with Article 369 of the Criminal Procedure Act.

Article 6(2)2 of the Aggravated Punishment Act or Article 7 of the Aggravated Punishment Act provides that the Defendants shall be imposed on each of the above Articles 6(1)3 and 6 of the former 7 of the former 7 of the Aggravated Punishment Act; Article 180 of the Aggravated Punishment Act; Article 180 of the Aggravated Punishment Act (1) through 10, 12 of the Aggravated Punishment Act; Article 180 of the Aggravated Punishment Act; Article 30 of the Criminal Act provides that each of the above Articles shall be imposed on each of the above Articles; Article 13(1), Article 180(1) of the Aggravated Punishment Act; Article 30 of the Aggravated Punishment Act provides that the above Articles shall be imposed on each of the above Articles; Article 6(1)2 of the Aggravated Punishment Act shall be imposed on each of the above Articles; Article 30 of the Aggravated Punishment Act, Article 180 of the Aggravated Punishment Act, Article 30 of the Aggravated Punishment Act, Article 2 of the Aggravated Punishment Act.

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

Judges Jeon Soo-dae (Presiding Judge)