(a) The case holding that a preliminary crime of evading customs duties is established;

(b) The method of calculating the domestic wholesale price in cases of domestic wholesale price and in cases of non-existent goods under Article 198 (3) of the Customs Act; and

C. Nature of collection under the Customs Act

A. Preliminary disturbance is established as a preparatory act prior to the commission of a crime without any restriction on the method and form of preparation, and it is established as a preparatory act with the objectively significant significance corresponding to each type of crime, or with the preparation to the extent that it is deemed that the Defendants had a direct action, corresponding to each type of crime. As such, insofar as the Defendants conducted a preparatory act such as inserting the kinds of bail purchased by the Defendants into plastic bags for the purpose of smugglinging them into the Republic of Korea without lawful customs clearance and sealing them into the Scar tape and concealing them into the scar tape, the crime of evading customs duties is established. Even if the Defendants returned the bail to the purchaser without carrying it into the Republic of Korea, it does not affect the completed preliminary crime.

(b) For the purpose of Article 198(3) of the Customs Act, the domestic wholesale price of the goods refers to the price of the domestic wholesale price, including taxes such as customs duties, the expenses for customs procedures, and the appropriate profits of enterprises, at the cost of arrival of the goods. If there is no illegal goods, the price indicated in the import pages, the specifications of purchase of the goods, etc. presented by the offender, shall be deemed the domestic wholesale price, and if there is no illegal goods, the price prevailing in accordance with the market price rate table, taking into account the rate of customs duties, may be deemed

C. The additional collection under the Customs Act is a sanction against a violation of the same Act, and if an offender is many, the whole value of the offender shall be ordered to be collected from each offender: Provided, That in the execution thereof, if a person among an offender pays the whole value thereof, all an offender shall be exempted from the execution of the additional collection, but if the whole amount of the value is not paid, it shall be distinguished from the execution of the additional collection under the Criminal Act.

(a) Article 28 of the Criminal Act, Articles 180 and 182 of the Customs Act. Article 198(c) of the Customs Act; Articles 48(1) and 48(2) of the Criminal Act

Supreme Court Decision 80Do2837 Decided October 13, 1981 (Article 198(34), Article 682 of the Customs Act, Article 29 of the Customs Act, Article 198-2 of the Customs Act, Article 29-23 of the Act) Supreme Court Decision 71Do158 Decided March 23, 1971 (Article 198(13)679 of the Customs Act, Article 198(13)679 of the Customs Act, Article 19

Defendant 1 and two others

Defendants

Seoul District Court Decision 88 High Court Decision 996

The judgment of the court below is reversed.

Defendant 1 and Defendant 2 shall be punished by imprisonment for two years and six months and by a fine for 91,00,000 won, and Defendant 3 shall be punished by imprisonment for three years and a fine for 91,00,000 won.

When the above fine is not paid, the defendants shall be confined in each workhouse for the period calculated by converting the amount of KRW 200,000 into one day.

As to Defendant 1 and Defendant 3, 155 days of detention days prior to the declaration of the original judgment shall be included in the above imprisonment for the same Defendants.

However, the execution of the above imprisonment is suspended for three years for Defendant 1 and Defendant 2, and for four years for Defendant 3, respectively.

The seized lusa 8-wing paper (Evidence Nos. 1 through 8) and 2-wing paper (Evidence No. 9,10) shall be confiscated from the Defendants, and 13 bits (Evidence No. 11) from the Defendants, from the Defendant 3, from the 14th female release room, 13 bits (Evidence No. 11).

The amount of KRW 89,857,811 shall be collected from the Defendants.

An order to pay an amount equivalent to the above fine shall be issued.

1. Summary of grounds for appeal;

A. The summary of the grounds of appeal No. 1 by Defendant 1, Defendant 3, and his defense counsel is as follows: (a) the above Defendants purchased a kind of release on bail in Thailand with Defendant 3 on an opportunity for Defendant 1 employed in Thailand to return to Korea; (b) purchased it with Defendant 3 to use the trading line of Defendant 2 in Thailand brokerage merchant; and (c) disposed of it in Thai Kong to make profits from it; but (d) the above Defendants purchased by the above Defendants did not comply with the standards for bad faith; (b) so, they were left Hong Kong to return the Category 8,436.32 of release on bail referred to in paragraph 1(a) at the original trial, which is part of the above Defendants, and were actually returned to Hong Kong; and (c) at the remaining original trial, they were trying to bring them into Korea only in Korea with the aim of disposing of only 3,304.64gs of release on bail from Korea; and (c) the judgment below erred by misapprehending the rate of return on bail and the above Defendants’ cell.

The gist of the second point is that the judgment of the court below, which calculated customs duties and defense taxes based on the assessment of the market price of the goods in violation of this case, is erroneous in the misapprehension of the legal principles as to the amount of market price of the goods in violation of this case, even if the above Defendants were to bring the entire goods in Korea, even if they were to be recognized as having attempted to bring the goods in Korea, the above release on bail or the actual release on bail was all low,

The third point is that the fine and additional collection under the Customs Act are jointly and severally paid to a large number of offenders. Thus, even in this case, even though one fine and additional collection should be sentenced to the entire Defendants, the judgment of the court below which sentenced the Defendants to both a fine and additional collection is erroneous in the misunderstanding of legal principles as to fine and additional collection for a crime of violating customs offenses, which affected the conclusion of the judgment.

The gist of the fourth point is that the punishment sentenced by the court below to the above defendants is too unreasonable, in light of the fact that the above defendants were the first offender and are in depth divided.

B. The gist of the grounds for appeal by Defendant 2’s defense counsel is as follows: (a) the above Defendant was a person operating a malicious company in Hong Kong, who was ordered in advance to the c.C.S.C. (T.C.C.) on Nov. 11, 1988 to the c.C.C.C. (hereinafter “the c.C.C.”); (b) the Defendant refused to accept the goods by putting back orders; and (c) returned to Hong Kong without taking over the orders; (d) the Defendant was delivered the above orders through Defendant 3 on the 13th of the same month after he did not take over the orders; (b) the Defendant purchased the goods by c.s. on the 13th of the same month or conspired to enter the Republic of Korea; and (c) the Defendant did not participate in the domestic act; and (d) the Defendant did not comply with the mutual order and did not comply with the objective credibility; and thus, (c) the court below erred in the misapprehension of the facts against the rules of evidence, thereby affecting the judgment.

2. Determination on the grounds for appeal

A. Judgment on the grounds of appeal by the defendant 1, 3 and his defense counsel

(1) We examine the first ground for appeal in light of the records and examine the evidence lawfully examined and adopted by the court below. The first ground for appeal is that, even if the defendants returned the article of bail to the purchaser without carrying it into the country, there is no error of law as pointed out in the above argument in the process of fact-finding by the court below, and there is no limit to the method and form of preparation as a preparatory act before the commencement of the crime, and there is a preparation to the extent that it is objectively important for the realization or directly, corresponding to each type of crime, and therefore, the preliminary crime of evading customs duties is established unless the defendants' act of preparation such as sealing the article of bail purchased by the defendants into the country without legitimate customs clearance and concealing it in the bill of fruit. The above argument does not affect the preliminary crime already completed, in other words, even if the defendants returned the article of bail to the purchaser.

(2) On the second ground of appeal, the domestic wholesale price of the goods referred to in Article 198(3) of the Customs Act refers to the price at which the domestic wholesale price is calculated based on customs duties, etc., customs clearance procedures, and the appropriate profits of the company. On the other hand, if there is no illegal goods, the price at which the offender shows in the import site or the purchase specifications, etc. of the goods is the arrival price, and the price at which the difference is calculated according to the market price under the market price under the market price under the market price under the consideration of the customs duty rate, considering the customs duty rate, shall be deemed the domestic wholesale price. Thus, it is also groundless that the court below's determination of the purchase price of the instant Category of the release on bail by Defendant 3's own voluntary initiative based on the purchase specifications and receipt and the market price calculated based on the market price reverse rate and the domestic wholesale price assessed by the market price reverse rate is justifiable.

(3) On the third ground of appeal, since the fine to be imposed concurrently in the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes under the Customs Evasion Act is one of the principal punishment against the violator, even if there are many accomplices, the sentence of each fine shall be imposed on each defendant even if there are no two offenses, and the additional collection under the Customs Act is one of the sanctions against the violation of the same Act, and if there are several offenders, the additional collection under the same Act shall be ordered on each offender to collect the whole amount of the value: Provided, That in the execution thereof, if a certain person among the offenders pays the whole amount of the value, even if he is exempted from the execution of the additional collection, if the whole amount of the value is not paid, all the offenders shall comply with the execution of the additional collection under the Criminal Act, and it is distinct from the additional collection under the same purport, and therefore, the court below's action

(4) However, according to the reasoning of the judgment of the court below, the court below held that the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (the Aggravated Punishment, etc. of Specific Crimes (the Aggravated Punishment, etc. of Specific Crimes) of the above defendant 1 and the crime of violation of the Defense Tax Act (the Aggravated Punishment, etc. of Specific Crimes (the Aggravated Punishment, etc. of the Aggravated Punishment Act) of Article 1 of the judgment of the above defendant, between the crime of violation of the A-B of Specific Crimes of the A-B of the Judgment and the crime of violation of the Defense Tax Act, between the crime of violation of the A-B Specific Crimes of the A-B of the Judgment, and between the crime of violation of the A-B Specific Crimes of the A-B Special Act and the crime of violation of the Defense Tax Act, and between the crime of violation of the crime of violation of the 2-B Special Act and the crime of violation of the 2-B Special Act, respectively, are several crimes, and the judgment of the court below is not erroneous in the judgment of the judgment of the court below.

In addition, according to the judgment of the court below, the court below found that the domestic wholesale price at the time of the offense of violation of the Act on the Aggravated Punishment by Evasion of Customs Duties under Article 1-A of the judgment of the defendants was 89,857,811 won, and ordered the defendants to collect an amount corresponding thereto. However, according to the statement in the appraisal statement in the above, it is clear that the domestic wholesale price at the time of the offense of the above offense is 89,957,811 won more than the amount recognized by the court below, and therefore, the above measures of the court below are also erroneous, but in this case where only the defendants appealed, the amount of additional collection, which is a kind of additional punishment, cannot be changed more than that of the court below, and therefore, the above error of the court below is not a ground for reversal of the judgment below.

(5) In light of all the circumstances that serve as the basis for sentencing the above defendant 1 and his defense counsel's assertion of unfair sentencing, including the motive, means, result, age, character and conduct, criminal records, and circumstances after the crime of this case, the sentence imposed by the court below against the above defendant is too unreasonable, and thus, the above argument is reasonable.

B. Determination on the grounds for appeal by Defendant 2’s defense counsel

(1) Examining the evidence duly admitted by the court below in light of the records, each crime committed by the above defendant at the time of original adjudication, including a public contest relationship with the above defendant, can be fully recognized, and the records examined otherwise do not contain any error of law as pointed out in the court below's fact-finding process, and even if the above defendant did not directly participate in the above defendant's act, it cannot be exempted from the criminal liability as a co-principal for the act shared by the above defendant, even though he did not directly participate in the act. Therefore, there is no reason to see the above appeal.

(2) However, ex officio, the above defendant's motive, means, results, age, character and conduct, criminal records, and circumstances after committing the crime of this case. In particular, considering the fact that the above defendant did not directly participate in the act of the crime of this case, the above defendant's punishment sentenced to the above defendant is too unreasonable, and therefore, the judgment of the court below against the above defendant cannot be maintained.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act with respect to Defendant 1, and with respect to Defendant 3 and Defendant 2, Article 364(2) and (6) of the same Act, and the judgment of the court below is reversed and it is so decided as follows.

The criminal facts of the Defendants recognized as a party member and the summary of the evidence are as shown in the corresponding column of the judgment of the court below, and all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

법률에 비추건대, 판시 각 행위 중 피고인들의 판시 제1의 가의 관세포탈예비의 점과 판시 제1의 나의 관세포탈미수의 각 점은 각 특정범죄가중처벌등에관한법률 제6조 제6항 , 관세법 제182조 , 특가법 제6조 제2항 제2호 , 형법 제30조 에, 판시 제1의 가의 방위세포탈예비의 점과 판시 제1의 나의 방위세 포탈미수의 점 및 피고인 3의 판시 제2의 방위세포탈미수의 각 점은 각 방위세법 제13조 제1항 , 관세법 제182조 제2항 , 제180조 제1항 에, 피고인 3의 판시 제2의 관세포탈미수의 점은 관세법 제182조 제2항 , 제180조 제1항 에 각 해당하는바, 피고인들의 판시 제1의 가의 특가법위반죄와 방위세법위반죄 상호간, 판시 제1의 나의 특가법위반죄와 방위세법위반죄 상호간, 피고인 3의 판시 제2의 관세법위반죄와 방위세법위반죄 상호간은 각기 1개의 행위가 수개의 죄에 해당하는 경우이므로 형법 제40조 , 제50조 에 의하여 각기 형 또는 죄질과 범정이 중한 바에 따라 피고인들의 판시 제1의 가 및 나의 각 죄에 대하여는 각 특가법위반죄에, 피고인 3의 판시 제2의 각 죄에 대하여는 관세법위반죄에 정한 형으로 각 처벌하기로 하여 관세법위반죄의 소정형 중 징역형을 선택하고 피고인들의 판시 각 특가법위반죄에 대하여는 특가법 제6조 제3항 에 의하여 벌금형을 병과하기로 하며, 피고인들의 위 수죄는 피고인별로 각기 형법 제37조 전단의 경합범이므로 관세법 제194조 제3항 , 제1항 , 형법 제38조 제1항 제2호 , 제50조 에 의하여 징역형에 한하여 형 및 죄질과 범정이 가장 무거운 판시 제1의 나의 특가법위반죄에 정한 형에 각 경합범가중을 하고, 피고인들의 정상에 각 참작할 만한 사유가 있으므로 각 관세법 제194조 제3항 , 제1항 , 형법 제53조 , 제55조 제1항 제3호 에 의하여 징역형에 한하여 작량감경을 하여 그 소정형기와 판시 각 범죄별 벌금액의 범위내에서 피고인 1, 피고인 2를 각 징역 2년 6월과 판시 제1의 가의 죄에 대한 벌금 63,000,000원, 판시 제1의 나의 죄에 대한 벌금 28,000,000원에, 피고인 3을 징역 3년과 판시 제1의 가의 죄에 대한 벌금 63,000,000원, 판시 제1의 나의 죄에 대한 벌금 23,000,000원에 각 처하고(다만, 주문에서는 피고인별로 합산한 벌금액을 선고하기로 한다), 피고인들이 위 각 벌금을 납입하지 아니하는 경우 형법 제70조 , 제69조 제2항 에 의하여 각 금 200,000원을 1일로 환산한 기간 피고인들을 각 노역자에 유치하고, 피고인 1, 피고인 3에 대하여는 같은법 제57조 에 의하여 원심판결선고전의 구금일수 중 155일씩을 위 피고인들에 대한 징역형에 각 산입하되, 피고인들은 각기 초범이고, 이 사건 범칙물품의 대부분이 압수되었으며, 피고인 1, 피고인 3은 각 그 잘못을 깊이 뉘우치고 있고, 피고인 2는 이 사건 범행에의 가담정도가 중하지 아니한 점 등, 각 그 정상에 참작할 만한 사유가 있으므로 각 같은 법 제62조 제1항 에 의하여 이 판결이 확정되는 날부터 피고인 1, 피고인 2에 대하여는 각3년간, 피고인 3에 대하여는 4년간 피고인들에 대한 위 징역형의 집행을 각 유예하기로 하며, 압수된 부루사파이어알 8봉지(증제1호 내지 제8호), 루비알 2봉지(증제9,10호) 및 14금 여자용 보석실반지 13세트(증제11호)는 각기 피고인들이 소유하거나 점유하는 이 사건 판시 제1의 나 및 제2의 각 범칙물품이므로 각 관세법 제198조 제2항 본문에 의하여 증제1호 내지 제10호는 피고인들로부터, 증제11호는 피고인 3으로부터 각 몰수하고, 피고인들의 판시 제1의 가의 범칙물품인 부루사파이어알 1봉 외 8종은 그 판시 범칙물품으로서 같은 법조항에 의하여 이를 피고인들로부터 몰수할 것이나 그 소재장소로 인하여 몰수할 수 없으므로 같은 법조 제3항 , 제2항 에 의하여 그 물품의 이 사건 범칙당시의 국내도매가격에 상당한 금액인 금 89,957,811원을 피고인들로부터 각 추징할 것이로되, 피고인들만이 항소한 이 사건에 있어서는 원심판결의 추징금액보다 많은 금액의 추징을 명할 수 없으므로 원심판결의 추징금액인 금 89,857,811원을 피고인들로부터 각 추징하기로 하고, 피고인들에 대하여 형사소송법 제334조 제1항 에 의하여 위 벌금에 상당한 금액의 가납을 명한다.

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

Judges Ansan-tae (Presiding Judge)