The case holding that there is an error of law in finding only the ancillary charge without judging the main charge.

The main charge without making any judgment on the main charge is a violation of law that affected the conclusion of the judgment by failing to render a judgment on the case for which a trial is requested.

Articles 254 and 298 of the Criminal Procedure Act

Supreme Court Decision 4292Ma981 delivered on May 17, 1961 (Kakadd. 5744, Supreme Court Decision 9-type57 delivered on Supreme Court Decision 37(7)1247 of the Criminal Act, Article 298(9)1438 of the Criminal Procedure Act)

Defendant 1 and one other

Prosecutor

Seoul Criminal Court of the first instance (72 High Court Decision 648)

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for a period of two years and six months, and by a fine of KRW 1,500,000, respectively.

However, the execution of the above punishment against Defendant 1 shall be suspended for three years from the date this judgment became final and conclusive.

The sentence of a fine against Defendant 1 shall be suspended.

Seized asbestos (6D-24) 1,527 square meters (Evidence No. 5) from Defendant 2 Co., Ltd. (hereinafter referred to as “two Companies”).

The gist of the grounds for appeal by the prosecutor is as follows: (a) in full view of the defendants' statements in the court of the original instance; (b) each protocol of suspect examination of the defendants prepared by the prosecutor; (c) Nonindicted 1’s witness at the court of the original instance; and (d) the statement of Nonindicted 1’s witness at the court of the original instance; and (d) asbestos (6D-24) 1,527 copies among the protocol of seizure prepared by the prosecutor’s duty handling of judicial police officers; (b) Defendant 1, the main facts charged by the prosecutor’s request, who committed a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes concerning Unlicensed Income; and (c) Defendant 2, who committed a violation of the Customs Act concerning Unlicensed Income, which was committed by the members of the corporation, at the time outside the bonded area as the ancillary facts charged by the prosecutor’s request for the judgment, the court below did not render a judgment as to the principal facts charged for the trial; and (d) thereby, determined that the court below erred by misapprehending the law

Therefore, according to the court's application for changes in indictment submitted by the prosecutor to the court on June 1, 1973 at the court's request, the prosecutor added that the above asbestos was stored in a place other than a bonded area and violated the Customs Prohibition Regulations while maintaining the main indictment which was prosecuted for violation of the Customs Prohibition Act on the Aggravated Punishment, etc. of Specific Crimes as to Defendant 1's non-licensed revenue, and that Defendant 2's employees' non-licensed revenue committed against Defendant 1's company's company's violation of the Customs Prohibition Act. The court below, without any deliberation and determination as to each of the above crimes stated in the main indictment, was punished as a crime of violation of the Prohibition Provisions of the Customs Prohibition Act by recklessly storing the above asbestos in a place other than a bonded area, which is an ancillary charge, without any deliberation and determination as to each of the above facts stated in the following indictment. Accordingly, the court below's judgment did not render a judgment as to the case for which the defendants requested a trial, and therefore, the prosecutor's appeal has merit the judgment below.

(Criminal Facts)

Defendant 1: (a) Person who works as the raw material yard of the Suwon Factory; (b) Person who works for Defendant 2 as the raw material yard of the company; (c) Person 2 as the company engaged in the business of manufacturing ice; and (d) Defendant 1, without obtaining a license from the customs collector from October 23, 1971 to 00, performed an act of importing asbestos 1,527,527 won ("6D-24") stored in the action at the 296-3 company bonded storage place, which was located in the company bonded storage place, from October 23, 1971 to the same 11:00.

(Abstract of Evidence)

The above findings of the judgment

1. The defendants' statement that corresponds to the facts of the judgment of the court below and the facts of the judgment of the court below

1. Each statement consistent with the reasoning of the lower court’s judgment, Nonindicted 2, Nonindicted 1, Nonindicted 3, and Nonindicted 4, and the lower court’s decision

1. Each protocol of interrogation of the Defendants prepared by the prosecutor, which corresponds to the facts indicated in the judgment

1. Each statement made by the prosecutor with respect to Nonindicted 1 and Nonindicted 3, which conforms to the facts indicated in the judgment

1. Statement of Nonindicted 2 prepared by the senior judicial police officer on his duty, which corresponds to the facts indicated in the judgment;

1. A statement that conforms to the facts stated in the judgment of the court below among the verification protocol;

1. Statement that corresponds to the market price of the market price prepared by the public official Nonindicted 5

1. A statement that conforms to the facts stated in the judgment among one copy (No. 3) of 12 raw material receipts and disbursements column 12 (No. 2) raw material receipts and disbursements column 12 (No. 3) of 161 sheet sheet No. 161 (No. 1), seized pre-factory iron and one copy (No. 4);

1. The statement to the effect that asbestos (No. 5) is seized among the records of seizure prepared in the course of performing the duties of judicial police officers;

In full view of the above facts, the above facts are sufficient to prove.

(Application of Acts and subordinate statutes)

Since the court below's ruling of defendant 1 is that since Article 6 (4) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 181, Article 137 of the Customs Act, Article 196 and Article 181 of the Customs Act are applicable to defendant 2, defendant 1 shall be sentenced to imprisonment for a limited term, defendant 2 shall be elected to a fine, and defendant 1 shall be sentenced to a fine for a limited term of a fine for a limited term of a crime under Article 53 and Article 55 (1) 3 of the Criminal Act, the punishment of a fine shall be mitigated according to Article 6 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes and the punishment shall be imposed concurrently pursuant to Article 6 (1) 5 of the same Act, the defendant 1 shall be sentenced to imprisonment for a limited term of 2 years and 7,800,000 won, defendant 2 shall be sentenced to a fine for a limited term of 1,500,000 won.

It is so decided as per Disposition.

Judge Lee Ho-ho (Presiding Judge)