Recognition of habitualness of a customs offender

In recognizing the habituality of a customs offender, it is extremely careful in recognizing the habituality of a crime. Although it is recognized that the criminal act several times and the method and nature of the crime are the same, it cannot be deemed that habituality is recognized only when a crime committed at several times seems to have been damp. In particular, Article 6 (7) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is the law punishing habitually the act of violating the Customs Act, such as this case, requires extremely careful caution in recognizing the habituality of a customs offender. In light of the fact that Article 6 (7) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is the law punishing habitually the act of violating the Customs Act, such as the punishment of death or imprisonment with prison labor for life or for not less than ten years, even though it is recognized that the defendant evaded customs duties for seven times such time as the judgment of the court, but the punishment of the defendant, who is the birth of the defendant living in the United States, is sent to the defendant's family members, and there is no special possibility that the defendants were no other things to commit such act.

Article 6 of the Aggravated Punishment Act

B

Prosecutor

Government's branch court of Seoul District Court (79Gohap67)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

The seventy days of detention days prior to the pronouncement of the judgment below shall be included in the above sentence.

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

압수된 밍크숄 1개(증 제1호), 같은 비로도 2장(증 제2호), 같은 우황청심환 1상자(증 제3호), 같은 타올 2매(증 제4,5호)를 몰수하고, 피고인으로부터 금 3,679,000원을 추징한다.

The summary of the grounds for appeal by the defendant's defense counsel is as follows: first, the defendant was sent the drugs, etc. over several occasions to the defendant who is the defendant's life, who is the defendant's living together, and there was no conspiracy to keep the drugs, etc. smuggling with the above A, and even though there was no repeated and repeated habitive habits, the judgment of the court below is erroneous in the misapprehension of the facts that the defendant was recognized as habitually smuggling and applied the Act on the Aggravated Punishment, etc. of Specific Crimes and erroneous application of the Act, which affected the conclusion of the judgment, and second, the amount of the sentence imposed by the court below against the defendant is too unreasonable.

Therefore, in recognizing the habitual nature of the above reasons for appeal, it is extremely careful in recognizing the habitual nature of the crime as to the first point of appeal. The mere fact that the crime was committed several times and the means, methods and nature of the crime is not always recognized, and it is recognized as habituality only if several crimes were committed at several times. In particular, Article 6 (7) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is a law punishing habitually a violation of the Customs Act, such as this case, requires serious attention in recognizing the habitual nature of a customs offender in light of the fact that the statutory punishment is punished by death, imprisonment for life or for not less than 10 years. Considering the various circumstances indicated in the statement of the defendant in the party process, witness D's statement and records, it is difficult to send them to the court below that the defendant's act of misunderstanding the above facts or evading customs duties by unlawful means, but the above things are not likely to affect the defendant's life of the defendant, who is a seafarer in the U.S., and thus, it does not change the above facts that the defendant's family life of the defendant.

Therefore, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and a member is again decided.

(Criminal Facts and Summary of Evidence) The criminal facts against the defendant recognized by a party member and summary of the evidence are deleted, and all of the criminal facts are deleted, and the explanation of habituality is deleted, and any statements consistent with the facts in the judgment of the court below are added, as stated in each corresponding column of the court below, so they are quoted in accordance with Article 369 of the Criminal Procedure Act.

(Application of Acts and subordinate statutes)

피고인의 판시 소위는 각 관세법 제180조 제1항에 해당하므로 소정형중 각 징역형을 선택하고 판시 수죄는 형법 제37조 전단의 경합범이므로 같은법 제38조 제1항 제2호에 의하여 그 범정이 가장 무거운 판시 제1목록 다 사실인 1978.12.10.경 범행한 관세법위반죄에 정한 형에 경합범가중을 하여 그 형기범위내에서 피고인을 징역 1년 6월에 처하고, 같은법 제57조에 의하여 원심판결선고전의 구금일수중 70일을 위 형에 산입하되, 피고인은 초범으로서 본건 범행의 동기에 참작할 만한 사유가 있으며 개전의 정이 현저한 점등의 정상이 있으므로 같은법 제62조에 의하여 이 판결확정일로부터 3년간 위 형의 집행을 유예하며, 압수된 밍크숄 1개(증 제1호), 같은 비로도 2감(증 제2호), 같은 우황청심환 1상자(증 제3호), 같은 타올 2매(증 제4,5호)는 피고인이 본건 범행으로 관세를 포탈한 물품이므로 관세법 제180조 제1항 후단에 의하여 이를 몰수하고, 본건 관세포탈물품인 종합비타민 게브랄티 5병(판시 제1사실 중 별지 제1목록 가항 사실), 해구신 10개, 폰스화장품 4개(같은 나항 사실), 게브랄티 4병, 벽걸이 1개, 어린이용 청잠바 1개, 해구신 12개, 폰스크림 8병(같은 다항 사실), 장난감권총 1개, 거북이껍질 1개, 게브랄티 8병(같은 라항 사실), 게브랄티 6병, 타올 2장(같은 마항 사실), 암포젤엠 위장약 2병, 도색필름 2개, 게브랄티 11병(판시 제2사실중 별지 제2목록 가항 사실)은 각 관세법 제180조 제1항 후단에 해당하여 몰수할 것이나 이미 타에 처분되어 몰수할 수 없으므로 같은법 제198조 제1항에 의하여 위 물품의 범칙당시의 국내도매가격에 상당한 금 3,679,000원을 피고인으로부터 추징한다.

(Judgment on Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes)

The facts charged against the defendant are as follows: "the defendant has evaded the prescribed customs duties in a fraudulent way by taking things as stated in the judgment seven times as habitually as stated in the judgment." As stated in the above reasons for reversal, the defendant cannot be punished pursuant to Article 6 (7) of the Act on the Aggravated Punishment, etc. of Specific Crimes since he did not habitually commit the above crimes and there is no other evidence to acknowledge that the defendant habitually committed the above crimes, and as mentioned above, he/she shall be punished as concurrent crimes under Article 180 (1) of the Customs Act.

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

Judges Kim Jong-chul (Presiding Judge)