Whether or not the value of a foreign exchange can be collected from the defendant because it became impossible to confiscate it after the foreign exchange has already been paid to another person by the defendant.

Confiscation and additional collection under Article 36-2 of the Foreign Exchange Control Act shall be the purport that in case where the criminal has committed a lawful act under Article 35 or 36 of the same Act, if there is foreign exchange, etc. acquired by the criminal act concerned, and if confiscation is impossible, the equivalent value thereof shall be collected from the acquisitor. If the criminal has already paid to the non-resident and foreign exchange has already been made to the person concerned, the equivalent value thereof shall not be collected from the defendant who has the payer, even though it cannot be confiscated.

Article 36-2 of the Foreign Exchange Control Act, Article 35 of the Foreign Exchange Control Act, Article 21 of the Foreign Exchange Control Act

Supreme Court Decision 79Do1509 Decided August 31, 1979, 79Do1509 (Supreme Court Decision 12237, Supreme Court Decision 27B-90, Supreme Court Decision 36-2(1)17 of the Foreign Exchange Control Act, summary summary summary summary summary summary summary summary summary summary summary summary summary summary summary summary summary summary (I), 619No 12205, court bulletin), 79Do1309 Decided September 25, 1979 (Supreme Court Decision 12326, Supreme Court Decision 27No 12326, Supreme Court Decision 27No 155, Decision summary summary summary summary summary summary summary summary (I), Article 36-2(2)18 of the Foreign Exchange Control Act, Court Gazette 621No279)

Defendant

Seoul Criminal District Court (77Gohap829)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment with prison labor for not less than five years and a fine not exceeding 180,000,000 won (180,000 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 300,000 into one day.

One hundred and fifty days of detention days prior to the declaration of the original judgment shall be included in the above imprisonment.

Seized 34 kilograms (No. 1), 100 kilograms (No. 2) for melting shall be confiscated, respectively.

According to the judgment of the court below ex officio, the court below acknowledged the fact that the defendant paid 9,30 U.S. dollars to the non-resident non-resident on three occasions before and after the ruling, such as the Foreign Exchange Control Act and the Enforcement Decree thereof, and it is clear that the above U.S. dollars are already consumed and cannot be confiscated pursuant to Article 36-2 of the Foreign Exchange Control Act, and it is clear that the defendant collected 4,525,050 won (485 won per month) from the payer under Article 36-2 of the same Act.

However, in the case of Article 36-2 of the Foreign Exchange Control Act, when the object of confiscation is foreign exchange acquired by the offender due to the act in question and goods prescribed therein and it is impossible to confiscate it, the equivalent value shall be collected. In the case of Article 35 (b) of the Foreign Exchange Control Act, if the offender has committed a criminal act in accordance with Article 35 (2) of the Foreign Exchange Control Act, and there is foreign exchange, etc. acquired due to the act in question (in this case, payment to the non-resident) and it is impossible to confiscate it, the equivalent value shall be collected from the acquisitor. If the defendant has already paid to the non-resident and foreign exchange was made by the non-resident ( there is no evidence that the defendant is recognized to have returned it), even if it is impossible to confiscate it, the equivalent value shall not be collected from the defendant who is the payer. Thus, the judgment of the court below which collected it from the defendant is erroneous in the misunderstanding of the legal principles of collection under Article 36-2 of the Foreign Exchange Control Act, which affected the conclusion of the judgment.

Therefore, without making a decision on the grounds for appeal by the defense counsel, the judgment of the court below is reversed pursuant to Article 364 (2) and (6) of the Criminal Procedure Act, and the judgment is again ruled as follows.

Since the criminal facts of the defendant recognized as a party member and the summary of the evidence are the same as that of the time of the judgment of the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act

1. Selection of imprisonment in each paragraph of Article 35 (1), Article 21 (1) 2 (A), (b), and Article 21 (1) 2 (A), of the Foreign Exchange Control Act);

Article 6(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 182(2) of the Customs Act, Article 6(2)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 180 of the Customs Act (Appointment of limited imprisonment under Article 180(2) of the Customs Act)

1. The former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act. Article 50 (Concurrent Crimes According to Crimes of Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes with Gross Punishment);

1. Articles 53 and 55 (1) 3 of the Criminal Act (see, e.g., Articles 53 and 55 (1) 3 of the Criminal Act for attempted crimes);

1. Article 6 (3) and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes.

1. Articles 70 and 69 (2) of the Criminal Act;

1. Article 57 of the Criminal Act;

1. Article 180 (1) of the Customs Act;

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

Judges Yellowdon (Presiding Judge)