(a) The principle prohibiting disadvantageous changes, where a fine is mitigated, but the period of attracting the conversion to a workhouse has expired;

(b) Whether the fine provided for in Articles 6 (2) and (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes can be mitigated or mitigated;

1. When a fine has been mitigated, even if the period of attracting the punishment was longer higher than that of the fine, it cannot be said that the sentence was modified disadvantageously by comparison as a whole.

2. Article 194 of the Customs Act applies even in cases where a crime of violation of Article 180 of the Customs Act is subject to aggravated punishment and a fine is concurrently imposed pursuant to Article 6(2) and (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and as such, Article 53 of the Criminal Act shall not apply to fines.

Article 6(2) and (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 180, Article 192 of the Customs Act, Article 53 of the Criminal Act

Supreme Court Decision 77Do1094 delivered on June 26, 1973 delivered on December 28, 1976

Defendant 1 and 22 others

A public prosecutor (as to all the defendants), and defendants 1 through 12, 14 through 17

Attorneys Park Woo-won (Presiding Justice) (Presiding Justice) (Presiding Justice) (Law No. 1) (Law No. 1) (Law No. 8) (Law No. 15) (Law No. 15) (Law No. 21,22,23) (Law No. 21,223) and the reasons therefor (All the defendants)

Daegu High Court Decision 77No98 delivered on May 23, 1977

1. The part on Defendant 2 through 17 among the original judgment is reversed, and that part of the case is remanded to the Daegu High Court.

2. The Prosecutor’s appeal against Defendant 1 and 18 to 23 is dismissed.

3. All of the appeals by Defendant 1 to 16 are dismissed.

Defendants (Appellants) are also examined as follows: the reasons for appeal by the public defender; the defense counsel by Defendant 1; the defense counsel by Defendant 14; the defense counsel by Defendant 2 through 13; and the grounds for appeal by Defendant 15.

(1) The court below's reasoning of appeal No. 100,000 won is 50,000 won or more of the above grounds for appeal No. 100,000 won of the defendant's defense counsel's appellate brief No. 100,000 won of the above grounds for appeal No. 500,000 won of the defendant's defense counsel's appellate brief No. 50,000 won of the above grounds for appeal No. 10,000 won of the defendant's defense counsel No. 50,000 won of the above grounds for appeal No. 10,000 won of the defendant's defense counsel No. 50,000 won of the above grounds for appeal No. 100,000 won of the above defendant's defense counsel No. 10,000 won of the above defendant's punishment No. 60,000 won of the above grounds for appeal No. 1, 60,000 won of the above grounds for appeal No. 1.

The prosecutor's grounds of appeal Nos. 1, 2, and 3 are also examined.

According to the reasoning of the judgment of the court below, the court below found Defendant 10, 11, 12, 14, and 16 as to the facts charged against Defendant 18, 21, 22, and 23 and the facts charged against Defendant 1, 6, 9, 19, and 20 as stated in the judgment of the court below, on the ground that there is no proof of criminal facts as stated in the judgment of the court below, and Defendant 10, 11, 12, 14, and 16 as to the facts charged against Defendant 2-3 as stated in the judgment of the court below, did not participate only in the smuggling part of the section section of this judgment, and Defendant 13, and 17 did not participate only in the section of the section of this judgment and did not participate in the section of the section of this case. In light of the records, the court below's examination of the evidence preparation process as mentioned above is just, and there were no errors in the misapprehension of facts against the rules of evidence, or

However, according to the reasoning of the original judgment ex officio, the court below decided to concurrently impose a fine equivalent to not less than five times but not more than ten times the value of goods or the amount of evaded tax in accordance with Article 6(2)(i) and (ii) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Act") on the grounds that all of the so-called judgments of the court below are subject to Article 6(2)(i) and (iii) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and imposed a fine equivalent to not less than five times but not more than ten times the value of goods or the amount of evaded tax in accordance with Article 6(3) of the Act on the Aggravated Punishment, etc. of Specific Crimes. In addition, with regard to this fine as imprisonment, the court below imposed a discretionary mitigation, and imposed a fine concurrently on each of the above Defendants within the limit of the prescribed amount.

However, according to Article 6 of the Aggravated Punishment Act, it is clear that Article 194 of the Aggravated Punishment Act is a provision to punish specific crimes as provided for in Article 180 of the Aggravated Punishment Act, and Article 194 of the Aggravated Punishment Act does not exclude the application of Article 180 of the Aggravated Punishment Act in cases of violations of Article 180 of the Aggravated Punishment Act. In light of Article 6 of the Aggravated Punishment Act, it is a legitimate interpretation to regard Article 194 of the Aggravated Punishment Act as applicable in cases where a crime as provided for in Article 180 of the Aggravated Punishment Act is subject to aggravated punishment (see Article 73Do974, Jun. 26, 1973). According to Article 194 (1) and (3) of the Aggravated Punishment Act, if a person is punished by a fine for a violation of a penal provision as provided for in the Aggravated Punishment Act, Article 53 of the Aggravated Punishment Act should not be imposed concurrently.

Therefore, in the application of Article 6 (2) and (3) of the Aggravated Punishment Act, the court below did not apply Article 194 of the Aggravated Punishment Act to the above Defendants on the grounds that Article 6 (2) of the Aggravated Punishment Act and Article 64 of the Aggravated Punishment Act are not applied, and thus, the court below erred by misapprehending the legal principles of Article 6 of the Aggravated Punishment Act and Article 194 of the Customs Act, which affected the conclusion of the judgment, and thus, the judgment of the court below against the above Defendants shall not be exempted from this point without examining the ground of appeal by the prosecutor.

Therefore, in order to reverse and re-examine the part of the original judgment against Defendant 2 through 17, this part of the case is remanded to the Daegu High Court which is the original judgment. Each of the appeals against Defendant 1 and 18 through 23 by the prosecutor and the appeals against Defendant 1 and 1 through 16 by the defendant are without merit. Therefore, this part of the case is dismissed. It is so decided as per Disposition by the assent of all participating Justices except for Kim Young-young, Dong Min-gu, Dong Min-gu, Dong Jae-jin, and Dong Kim Jong-J.

The dissenting opinions of the Supreme Court Justice Kim Young-young, Dong Min-gu, Dong Min-jin, Dong Han-jin, and Dong Kim Jong-ju are as follows.

Article 6 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Act") provides for an aggravated punishment of crimes provided for in Article 180 of the Customs Act, and it is true that Article 194 of the Customs Act does not exclude a provision on discretionary mitigation when violating Article 180 of the Customs Act, and it is also true that Article 194 of the Customs Act does not stipulate that a fine shall not be mitigated on the ground that there is a provision of Article 194 of the Customs Act. However, the conclusion that a fine cannot be mitigated on the ground that Article 73Do974 of the Customs Act (hereinafter referred to as the "Special Act") does not seem to have been explicitly stated in this purport, not on the other hand, on the other hand, on the grounds that Article 73Do974 of the Special Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Act") provides for the punishment of imprisonment for not less than 10 years, but on the other hand, on the other special provisions of the Customs Act or the special provisions of the same Act.

Therefore, deeming that discretionary mitigation can be carried out in accordance with the general principles of the Criminal Act is not a legitimate interpretation of the law. It is the opinion of a minority opinion that does not seem to be a legitimate interpretation. The taking of such opinion is not only justifiable in terms of the legal theory, but also in various similar cases above this case (see, e.g., Supreme Court Decision 76Do3736, Dec. 28, 1976; 77Do1094, Jun. 28, 197), the specific feasibility of the case is reasonable, and there is an important motive and purpose in reducing part of the outcome of the excessive sentence, which is contrary to the sense of equity. According to the theory of a minority opinion, the provision of Article 589 of the Criminal Act provides that “When it is unreasonable to take such opinion, it shall not be deemed that the provision of the same Act provides that “100 or more times a fine is reduced by 50 times or more” and the provision of the same Act provides that if it is unreasonable, it shall not be deemed that the provision of the same provision of imprisonment of the same provision.

Justices Kim Jong-chul (Presiding Justice)