Whether Article 194 (Exclusion of Provisions of the Criminal Act) of the Customs Act is not applied because the Act on the Aggravated Punishment, etc. of Specific Crimes is aggravated as to a violation of the Customs Act.

Even if a crime of violating Article 180 of the Customs Act is subject to the aggravated punishment pursuant to Article 6(2) and (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes and a fine is imposed concurrently pursuant to Article 194 of the Customs Act, it is not possible to reduce the amount of fine by applying Article 53 of the Criminal Act.

Article 194 of the Customs Act

Supreme Court Decision 77Do2114 Decided September 13, 197, 77Do2114 (Supreme Court Decision 253Do21 Decided September 13, 197, Decision No. 368(28)1482 of the Criminal Procedure Act, Court Gazette 569No10275)

Defendant 1 and two others

Prosecutor and Defendant

Seoul Criminal District Court (75Gohap178, 314)

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for a term of two years and six months, by a fine of 5,700,000 won, and by imprisonment for a term of two years and six months, respectively.

When Defendant 1 does not pay the above fine, the same defendant shall be confined in a workhouse for the period calculated by converting 30,000 won into one day.

During the detention days before the sentence of the lower judgment, 45 days shall be included in the calculation of Defendant 1 and 2, and 80 days shall be included in the said imprisonment for the same Defendants.

However, the execution of the above imprisonment with prison labor is suspended for three years from the date of the final decision of this case.

The seized 10 U.S. No. 12, 12 U.S. No. 12, 20 U.S. Es. Es. 1,440, 160 U.S. Es. M, materials, and coffee 960, 480 U.S. M, materials, and coffee 480, 120 U.S. tea and coffee 120, 240 U.S. No. 440, 140 U.S. Es. e.s. and 11) shall be forfeited from the Defendants.

The sentence of a fine shall be suspended for Defendant 2 and 3 respectively.

The gist of the grounds for appeal against the Defendants by the public prosecutor is that the judgment of the court below against the Defendants is too unfeasible and unfair. The first reason for appeal other than Defendant 1 and 3 and the summary of the grounds for appeal by Defendant 2 is that Defendant 1 did not participate in the crime of this case, and Defendant 2 operated this vehicle according to the direction of the above Defendant 3, and Defendant 3 merely carried out EXE goods on his duty, and it did not commit the crime as at the time of the original judgment. Although the police police's statement contents and the statement of the preparation of the Defendants were prepared by adviser, the court below found Defendant guilty. Thus, the judgment of the court below is erroneous in the misapprehension of facts and violation of the rules of evidence, and the second reason for appeal by Defendants 1 and 3 is that the judgment of the court below is too unfair because it is too unfair.

First, prior to the judgment on the grounds for appeal above, the court below examined ex officio as to the facts constituting the crime of this case against the Defendants by applying Article 6(2)2 and (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 180 of the Customs Act to discretionary mitigation pursuant to Article 53 and Article 55(1)3 of the Criminal Act within the scope of imprisonment term and amount of fine. However, even if a violation of Article 180 of the Customs Act was committed concurrently pursuant to Article 6(2) and (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 194 of the Customs Act shall apply to cases where a fine is aggravated and a fine is imposed concurrently pursuant to Article 6(2) and (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes, so it cannot be mitigated by applying Article 53 of the Criminal Act to the Defendants. Since the court below applied Article 53 of the Criminal Act to discretionary mitigation, the court below's above disposition has affected the judgment.

Therefore, the judgment of the court below is reversed pursuant to Articles 364(2) and 364(6) of the Criminal Procedure Act before the public prosecutor and the defendants' grounds for appeal are determined again through the party members' pleading.

The summary of the criminal facts and evidence of the Defendants recognized as a party member is as shown in each 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.

Article 6 (2) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 30 of the Criminal Act, Article 181 of the Customs Act, and Article 30 of the Criminal Act are applicable to several crimes. Since the above two crimes are applicable to several crimes, the defendants shall be punished concurrently under Article 40 of the Criminal Act, and the defendants shall be punished under Article 6 (3) of the same Act, and the punishment shall be imposed on the defendants for the same offense. Since the above crimes are all seized under Articles 6 (1) 3 and 55 (1) 3 of the Criminal Act, the defendants shall be sentenced to imprisonment for 2 years and 5 years and 10 days and 10 days and 20 days and 10 days and 20 days and 30 days and 4 days and 70 days and 70 days and 10 days and 5 days and 70 days and 70 days and 5 days and more of the above punishment shall be imposed on each of the defendants under Article 40 (2) of the Criminal Act.

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

Judges Lee Ho-ho (Presiding Judge)