(a) Whether the court does not ex officio recognize minor criminal facts than those of the public prosecution without any changes in indictment procedures;

B. Whether the defendant's act does not constitute a principal offender for the crime of evading customs duties, etc. but does not constitute aiding and abetting the crime of evading customs duties, etc., but the court does not recognize the defendant as guilty of aiding and abetting the crime of evading customs duties, etc. in the trial process or in the absence of changes in indictments (affirmative)

A. In a case where a court recognizes a minor criminal facts included in the criminal facts charged within the scope that are identical to the facts charged, if it deems that there is no concern about causing substantial disadvantage to the defendant's exercise of his/her right to defense in light of the progress of trial, it may ex officio recognize a criminal facts different from the facts charged as stated in the indictment even if the indictment was not modified. However, even in such a case, if the facts charged are not punished for the reason that the facts charged are serious in comparison with the facts charged in the indictment, and if the indictment was not modified for the reason that it does not change, it shall not be deemed illegal even if the court does not recognize the criminal facts ex officio, unless it recognizes it as significantly contrary to justice and equity in light of the purpose of the criminal procedure,

B. The summary of the facts charged is that "the defendant, who had worked as the manager of usfk camp / X, sold duty-free goods to foreign tourists in Korea who are non-tax-free persons and evaded customs duties and defense taxes by selling them." However, if the defendant, not the defendant, but the non-tax-free persons subject to duty and defense taxes, and the defendant, not the tax-free persons, sells duty-free goods to non-tax-free persons, constitutes the act of evading customs duties and defense taxes, even if the act of selling the above duty-free goods constitutes the act of aiding and abetting duty evasion, it is difficult to find the defendant guilty without any modification to the facts of aiding and abetting duty evasion, such as customs duties, which are not referred to in one time in the course of the deliberation of the case charged as a principal offender for the crime of evading customs duties, and it is recognized that the court's finding of the defendant guilty of aiding and abetting duty-free goods such as customs duties does not significantly go against justice and equity, and thus the court's decision is lawful.

(a)Article 254, Article 298(b) of the Criminal Procedure Act; Article 180, Article 182, Article 13(1) and Article 5(1) of the former Defense Tax Act (effective), Article 9(1) and (2), and Article 8(1) and (4) of the Special Cases Concerning the Provisional Status of United States Armed Forces in the Republic of Korea following the Implementation of Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America on Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea;

Supreme Court Decision 81Do1489 delivered on July 28, 1981 (Gong1981, 1426) 82Do2119 delivered on November 8, 1983 (Gong1984, 48) 90Do129 delivered on October 26, 1990 (Gong190, 2475)

Defendant

Prosecutor

Attorney Park Woo-young

Seoul High Court Decision 90No273 delivered on November 2, 1990

The appeal is dismissed.

The Prosecutor's grounds of appeal are examined.

In a case where a court recognizes a criminal facts included in the criminal facts for which a public prosecution was instituted within the extent that the identity of the facts charged is recognized, if it is deemed that there is no concern about a substantial disadvantage to the defendant's exercise of his/her right to defense in light of the progress of the trial, it may ex officio recognize a criminal facts different from the facts charged as stated in the indictment, even if the indictment was not modified. However, even in such a case, if the indictment is not punished for the reason that the facts charged are serious and the indictment was not modified, it cannot be viewed as illegal unless it is deemed that it goes against justice and equity in light of the purpose of the criminal procedure, such as prompt discovery of substantial truth by appropriate procedures, unless it is recognized that such criminal facts significantly go against justice and equity (see Supreme Court Decision 90Do1229, Oct. 26, 190).

In this case, the summary of the facts charged is that "the defendant, who had worked as the manager of the camp of the Republic of Korea and X, sold free goods to foreign tourists within the country who are non-tax-exempt persons in a way that he did not enter in the registration period, and evaded customs duties and defense taxes thereon." The court below judged that the act of selling free goods to non-tax-exempt persons by the defendant, who is not a taxpayer of duty-free goods and defense taxes, does not constitute the crime of evasion under Article 180 (1) and (3) of the Customs Act and Article 5 (1) of the Act on Special Cases concerning the Provisional Cases of the Customs Act, etc. Following the Implementation of the Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America on Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea." In light of each provision of Article 9 (1) and (2), and Article 8 (1) and (4) of the Act on Special Cases of the Customs Act, etc., certified and controlled by the United States Armed Forces, does not constitute the crime of evasion.

In theory, the court below promptly acquitted the non-tax-exempt person, despite the fact that the non-tax-exempt person would evade customs duties without obtaining a separate import license, and that the defendant sold duty-free goods to him with his well-known knowledge, such act constitutes aiding and abetting the evasion of customs duties, which constitutes an act of aiding and abetting the evasion of customs duties, which is a crime within the scope recognized as identical to the facts charged, and even if the indictment was not modified and the facts charged are recognized, it does not put a substantial disadvantage to the defendant's exercise of his right to defense. Thus, the court below erred by misapprehending the legal principles on the crime

However, even if the act of selling the duty-free goods of this case, such as the novel theory, constitutes the act of aiding and abetting the evasion of customs duties, the fact of aiding and abetting the evasion of customs duties, etc, which is obvious in the deliberation process of this case where the prosecution was instituted as a principal offender for the crime of evading customs duties, cannot be deemed as having any substantial disadvantage in exercising the defendant's right of defense, and it is not recognized that the court's finding the defendant guilty without any modification to the indictment, and that it is obviously contrary to the facts of the crime of evading customs duties, etc. against which the prosecution was instituted, the finding of the defendant not guilty of aiding and abetting the evasion of customs

The Supreme Court Decision 82Do884 Decided June 8, 1982 cited by the theory of the lawsuit is related to the case in which the defendant himself claims that he is not a joint principal but a joint principal in the process of deliberation of the case in which a public prosecution was instituted as a joint principal. Therefore, it is not appropriate to apply to

Ultimately, we cannot accept the judgment of the court below on the ground that there is no reason to believe that the court below erred by misapprehending the legal principles on the crime of evading customs duties or the changes in indictment.

Therefore, the appeal by the prosecutor is dismissed. It is so decided as per Disposition with the assent of all participating judges.

Justices Yoon Jae-ho (Presiding Justice)