Whether a fine may be mitigated in the case of an aggravated punishment of a violation of the Customs Act

Since Article 194 of the Customs Act is applied even in cases where a crime of violation of Article 180 of the Customs Act is subject to aggravated punishment and fine is concurrently imposed pursuant to Article 6(2) and (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 53 of the Criminal Act cannot be mitigated by applying Article 53 of the Criminal Act to a fine.

Article 6(2) and (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 180 of the Customs Act; Article 194 of the Customs Act; Article 53 of the Criminal Act

Supreme Court Decision 77Do2114 Decided September 13, 1977 (Supreme Court Decision 11688, Supreme Court Decision 6(5)1405 Decided September 13, 197, Supreme Court Decision 11688, Supreme Court Decision 6(5)

Defendant

Jeonju District Court Decision 79 High Court Decision 79Gohap31)

The judgment of the court below is reversed.

Defendant shall be punished by imprisonment for a period of two years and six months and by a fine of five thousand won.

When the above fine is not paid, the defendant shall be confined in a workhouse for the period calculated by converting the amount of KRW 5,000 into one day.

The number of detention days prior to the declaration of the original judgment shall be included in the above imprisonment.

However, the execution of the above imprisonment shall be suspended for three years from the date this judgment becomes final and conclusive.

The seized Switzerlands shall be confiscated from the defendant 59 knife knife knife knife knife knife knife knife knife knife knife kn

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

The gist of the grounds for appeal by the defendant is that the defendant purchased and possessed the above goods even though the defendant did not purchase and possess 39 Switzerlands for male fingers and 48 Switzerlands among the facts charged in the indictment of this case, the court below recognized that the defendant purchased and possessed the above goods. The judgment of the court below is erroneous in misunderstanding of facts affecting the conclusion of the judgment, and the summary of the grounds for appeal by the defendant's state appointed defense counsel is improper because the amount of the punishment sentenced by the court below is too unreasonable.

Therefore, in light of a comprehensive review of the evidence duly adopted by the court below after examining the defendant's grounds for appeal, it can be sufficiently recognized that the facts charged of the defendant's original case are facts charged by the court below, and it cannot be found that there are errors as pointed out in the court below's fact-finding process. Thus, we cannot accept the above argument.

Then, prior to the judgment on the grounds for appeal of unfair sentencing by a state appointed defense counsel, the court below considered ex officio prior to the judgment on the grounds for appeal of unfair sentencing, and the judgment of the court below found that the defendant was subject to discretionary mitigation pursuant to Articles 53 and 55 (1) 6 of the Criminal Act in determining the amount of fine against the defendant. Thus, the judgment of the court below cannot be reversed without any exemption from the appeal by a state appointed defense counsel, since the crime of violation of Article 180 of the Customs Act is a specific crime provided for in the Customs Act, where the crime of violation of Article 6 (2) and (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes is subject to Article 194 of the Customs Act, even in cases where the crime of violation of Article 180 of the Customs Act is subject to aggravated punishment and fine is concurrently imposed in accordance with Article 53 of the Customs Act (Supreme Court Decision 7Do2114 delivered on September 13, 197).

Therefore, the judgment of the court below is reversed ex officio in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the members of the company will be decided as follows.

Article 369 of the Criminal Procedure Act provides that "the defendant shall be sentenced to a fine not exceeding 1,905,260 won and 96,046 won" among the facts constituting an offense, and since the defendant shall be sentenced to a fine not exceeding 1,892,732 won and the defense tax amount shall be sentenced to a fine not exceeding 95,263 won, he shall be sentenced to a fine not exceeding 1,80 won, according to Article 369 of the same Act. Since the defendant's exclusion of customs duties from the court below's ruling in the same manner shall be limited to a fine not exceeding 3,00 won, the defendant shall be sentenced to a fine not exceeding 5,00 won for 1,80 won under the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 6 (2) 2 of the same Act, Article 182 (2), and Article 180 (1) of the Customs Act provides that the defendant shall be sentenced to a fine not exceeding 1,6000 times of the Criminal Act.

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

Judge Lee Jin-tae (Presiding Judge)