Defendant

Defendant

Freeboard Kim

Law Firm Lee & Lee, Attorney Song Young-young

Incheon District Court Decision 2005 High Court Decision 2920 Decided November 11, 2005

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Illegal of indictment

Since the accusation by the head of the Incheon Airport customs office was unlawful without a notification disposition, which is the prior procedure prescribed by the Customs Act, the indictment of this case is unlawful.

(b) Mistake in law;

In light of the motive for purchasing the handout of this case and the situation at the time of carrying the handout of the handout, etc., there is a justifiable reason to believe that the defendant's act of this case was not a crime, and thus, it is not punishable.

C. Unreasonable sentencing

In light of the fact that the Defendant did not have any previous conviction in violation of the Customs Act, the Defendant’s mother’s disease aggravated, resulting in the instant act, and the customs duties on the instant handblings were 1,553,943 won, and that it was difficult for the Defendant, not a legal expert, to know the provisions of the Customs Act, the lower court’s fine and the forfeiture penalty on the handblings of this case are excessively unreasonable.

2. Determination

A. Whether the indictment is unlawful

In the case of a customs offender, the Customs Act provides that a prosecutor may not institute a public prosecution unless the Commissioner of the Korea Customs Service or the head of the relevant customs office files an accusation (Article 284). The Commissioner of the Korea Customs Service or the head of the relevant customs office may notify a customs offender of the payment of an amount equivalent to a fine, etc. prior to filing an accusation (Article 311): Provided, That in cases where the circumstances of the offense are recognized to be imprisonment with prison labor or where the circumstances of the offense are deemed to be imprisonment with prison labor, or where the customs offender has no ability to do so or his residence is unknown, the Customs Act

According to the records, although the defendant's accusation of this case against the head of Incheon Airport Customs Office was conducted without a notice disposition under the Customs Act, even if the defendant's crime of this case does not constitute an exception to immediately file a notice without a notice disposition under the Customs Act, the issue of notice disposition shall be determined at the discretion of the Commissioner of the Korea Customs Service or the head of the relevant customs office, and all cases subject to a fine may not be deemed to have been subject to a prior notice disposition (see Supreme Court Decision 72Do343, Aug. 31, 1973). Thus, even if the accusation of this case was conducted without a notice disposition under the Customs Act, it is not unlawful.

Therefore, this part of the defendant's assertion that the accusation of this case is unlawful is without merit.

(b) Whether it constitutes a mistake in law;

Article 16 of the Criminal Act provides that "the act of misunderstanding that one's own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for misunderstanding." It does not mean a simple legal site, but it is generally accepted that his act constitutes a crime but, in his special circumstances, it does not constitute a crime permitted under the Acts and subordinate statutes, if there are justifiable grounds for misunderstanding (see, e.g., Supreme Court Decision 2003Do6282, Feb. 12, 2004). The defendant, as Japan, is aware that his act does not constitute a crime under the Acts even if he had purchased goods at a domestic duty-free shop and re-enters them after departure from the Republic of Korea, and there is no justifiable reason to recognize that the defendant's act was not a crime under the Acts and subordinate statutes, such as where he can purchase goods at least 2,000 U.S. dollars, and there is no reason to interpret the provisions of the Customs Act as stated above.

C. Whether to impose unfair sentencing

Although the Defendant did not have a criminal record and commits a mistake, considering various circumstances that are conditions for sentencing, such as the market price, age, character and conduct, environment, background and consequence of the crime, etc. of the Defendant, the sentence imposed by the lower court against the Defendant is appropriate, and it is not recognized that it is unfair due to its gross negligence, and therefore, this part of the Defendant’s assertion is without merit.

3. Determination

Therefore, the judgment of the court below is just, and the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Hong Ho-ho (Presiding Judge)