Whether a person who has taken over imported raw materials without approval is punished.

A person subject to punishment pursuant to subparagraph 1-2 of Article 33 and Article 18 (1) of the Trade Business Act shall be limited to a person who uses or transfers raw materials for foreign exchange earnings for purposes other than the original purpose without the approval of the Minister of Trade, Industry and Energy, and a person who acquires such materials shall not be an accomplice even if he/she knows the fact thereof.

Articles 18 and 33 of the Trading Business Act

Defendant 1 and two others

Prosecutor (as regards 1,2,3)

Attorney Park Ha-sk, Yhank, Sympo (Law Firm 1,200)

Seoul High Court Decision 79No790 delivered on August 30, 1979

All of Defendant 1 and 2 appeals and prosecutor’s appeals against the Defendants are dismissed.

As to the Prosecutor’s Grounds of Appeal:

(1) We affirm the judgment of the court below based on the records that Defendant 1 and 2 were subject to an illegal refund of the customs duties stated in the No. 1 of the indictment against Defendant 1 and the process that found Defendant 1 not guilty of violation of the Foreign Exchange Control Act against Defendant 1, and there is no violation of the rules of evidence such

As evidence of the above part, the defendants' statement was entered in the suspect's statement as to the prosecutor, and there was a formal and several evidences against the witness's testimony. However, since the court below did not believe all of them according to the reasons of its explanation, the selection of evidence is the discretionary power of the fact-finding court, and the court below did not believe it as the exercise of its discretionary power, there are no arguments contrary thereto.

(2) The court below's reasoning that Defendant 3 cannot be punished pursuant to Articles 33 (1)-2 and 18 (1) of the Trading Business Act is just for the interpretation of the same Act.

A person punished under the same Act shall be limited to a person who uses or transfers imported raw materials for earning foreign currencies for purposes other than the original ones without the approval of the Minister of Trade, Industry and Energy, and there is no ground to punish those who take over such raw materials.

Therefore, there is no argument that there is a misapprehension of the legal principles as to this point, since it is not possible to be an accomplice in violation of the law because it is the fact that a person who takes over or acquires it, even though he or she is required to take over or acquire it in a way other than the purpose of the law.

As to the grounds of appeal by the Defendants and the defense counsel

(1) In light of the records, the part on the illegal refund of customs duties at the time of original sale against Defendant 1 and 2 and the part on the conviction of the violation of the Trade Act, the court did not err by misapprehending the rules of evidence or omitting the determination of evidence as stated in the arguments.

Inasmuch as there are some parts of the statements made by the Defendants and related witnesses to the inspection and the statements made by the lower court and the first instance court, only those favorable to the Defendants at all times cannot be said to have the value of evidence. Therefore, the argument about this point is not merely an error in the exercise of the power of the fact-finding court, and it is not acceptable.

(2) Defendant 1 and 2 are not punished pursuant to Article 6(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 180(2) of the Customs Act on the Aggravated Punishment, etc. of Specific Crimes, on the grounds that Defendant 1 and 2 received the refund of customs duties according to the judgment of the court below stated in the argument that the refund of customs duties for export refers to the cases under the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export, and there is no reasonable ground to distinguish cases where customs duties are illegally refunded under the Act on Special Cases Concern

In addition, Article 6 (2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes only provides that "the amount of tax evaded under Article 6 (2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes" is stipulated as "the amount of tax evaded," and there is no expression as to the amount of tax unlawfully refunded, but it includes a person who unlawfully refunded customs duties from among persons who committed a crime under Article 180 of the former Customs Act. Therefore, in light of the purpose of Article 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, it is reasonable to include the amount of tax unlawfully refunded

(3) Although the judgment of the court below on the appeal of the civil petition of the defense counsel's civil petition of appeal deems the sentencing to be excessive and unfair, if the decision of the court below on the sentence of less than ten years of imprisonment is made, the unfair sentencing cannot be a legitimate ground for appeal

Therefore, each of the appeals by Defendants 1 and 2 and the appeals by the public prosecutor against the Defendants are without merit, and they are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Byung-ho (Presiding Justice)