The case where it is difficult to recognize habituality of the crime of habitual smuggling

The case holding that it is difficult for the defendant to recognize the habitual nature of smuggling only once after the lapse of 1 year and 10 months after the previous crime, on the grounds that a person who has been subject to habitual smuggling under Article 6 (8) of the Act on the Aggravated Punishment, etc. of Specific Crimes commits the crime of smuggling, since he/she committed the crime of smuggling.

Article 6 (8) of the Aggravated Punishment Act

Defendant 1 and two others

Attorney Choi Sung-sung et al.

Busan High Court Decision 98No547 delivered on August 28, 1998

1. Defendant 1 shall be punished by imprisonment for one year, by imprisonment for eight months, and by imprisonment for one year and four months, respectively.

2. The number of days under detention prior to the rendering of a judgment shall be 179 days each by the above sentence against the defendant 1 and 2, and 50 days each by the above sentence against the defendant 3.

3. The amount of KRW 7,000,000 from Defendant 1 and the amount of KRW 2,000,000 from Defendant 2 shall be collected respectively.

Criminal facts

Defendant 1 is a Grade 8 staff member of the Busan Central Headquarters Customs Office, Defendant 2 is a Grade 8 staff member of the Masan Customs Office and a Grade 8 staff member of the Masan Customs Office, who enters a wharf while serving as a customs guard, who is engaged in the control of vehicles and detection and surveillance of smuggling-related activities, and Defendant 3 is a cook of the Masan Line 17 (name omitted).

1. Defendant 1

A. On September 30, 1997, Nonindicted Party 1, the kitchen referred to in the Masan Customs Office 4 Masan-si, a large-day cargo vessel (name omitted), silents Nonindicted Party 1’s carrying the vessel out of the wharf using a vehicle 2.4t for carrying the vessel, carrying the vessel, carrying the vessel in question, and then receiving cash of KRW 2,00,000 in return, and committing an unlawful act in the course of performing his duties, and then accepting a bribe;

나. 같은 해 12. 17. 02:00경 부산 남구 우암동에 있는 부산항 제7부두에서 피고인 3이 (이름 생략)에 싣고 밀수한 시바스리갈 위스키 2,172병, 레미마틴 코냑 1,332병, 참깨 11,760kg 등 시가 금 140,443,200원 상당을 공소외 2가 운전하는 서울 (번호 생략)호 18t 화물차에 싣고 세관초소를 통과하여 반출하는 것을 묵인하여 준 다음 그 대가로 피고인 3로부터 현금 5,000,000원을 교부받아 직무상 부정한 행위를 한 후 뇌물을 수수하고,

2. Defendant 2

On October 28, 109, at the same place as described in paragraph (a) of 1-A of this year, Nonindicted Party 1, the kitchen referred to in subparagraph (name omitted) of paragraph (1) of Article 1, silents Nonindicted Party 1 to take out to the outside of the wharf by using a 2.4t vehicle for carrying and smuggling the above vessel, and in return, received cash amounting to KRW 2,000,000 from the above Nonindicted Party 1, and received a bribe in the course of performing official duties, and then received the bribe;

3. Defendant 3

A. Non-Indicted 3, 4, 5, 6, 7, 8, 9, and 2 without reporting to the authorities;

같은 해 12. 17. 02:00경 부산 남구 우암동에 있는 부산항 제7부두에서 피고인이 일본국에서 구입한 시바스리갈 위스키 2,172병, 레미마틴 꼬냑 1,332병, 참깨 11,760kg 등 시가 금 140,443,200원 상당을 제17 (이름 생략)로 운송하여 위 제7부두에 반입한 다음 위 공소외 2가 운전하는 서울 (번호 생략)호 18t 화물차에 싣고 세관초소를 통과하여 밀수하고,

B. At around 02:00 on the same day, Defendant 1 of the 7th head of the 7th head of the 7th head of the Busan Port delivered cash amounting to KRW 5,000,000 in the name of the case, and offered a bribe in connection with the public official’s duties.

Summary of Evidence

Each fact in the judgment

1. The defendants' statements that correspond to the whole or part of this Court

1. Each statement corresponding thereto made by the witness Nonindicted 1 and 10 in this Court

1. Statement corresponding to the witness examination protocol against Nonindicted Party 1 in this Court 97 seconds2804

1. Any statement corresponding thereto among the protocol of inspection by this Court;

1. Each protocol of examination of suspect as to the Defendants prepared by the public prosecutor, which corresponds to the whole or part of each protocol;

1. Each statement written by the prosecutor on Nonindicted 1, 10, 7, 8, 9, 2, 6, and 5 of the protocol of interrogation of the suspect who is prepared by the prosecutor, corresponding thereto;

1. Each statement made by the prosecutor with respect to Non-Indicted 1, 11, and 6 in the public prosecutor’s preparation;

1. A statement prepared by Defendant 2, which corresponds thereto;

1. A statement to the effect that the two owners and shoulders as indicated in the judgment are seized from Nonindicted 6 and four persons among certified copies of a seizure protocol prepared by the judicial police assistant;

[2] The records that correspond to the investigation report prepared by Busan District Prosecutors' Office and Kim Won-won

1. A statement complying with the details of the operation of ports and the issuance of computer rooms in Busan Regional Maritime Affairs and Fisheries Office and the entry into and departure from port;

Comprehensively

As such, this can be recognized.

All facts of the judgment are proven.

Application of Statutes

1. Article applicable to criminal facts;

A. Defendant 1 and Defendant 2: Article 131(2) and (1) of the Criminal Act (a) of the same Act

B. Defendant 3: Articles 179(2) and 17(1), 137(1), 30(s) of the Criminal Act, Article 133(1), and 131(2) of the Criminal Act (the fact of offering of a bribe at the time of sale, the choice of imprisonment), and Article 131(2) of the Customs Act

2. Aggravation of concurrent crimes (Defendant 1, 3);

Articles 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravated Punishment as to Defendant 1) of the Criminal Act (Aggravated Punishment as to the Punishment No. 1-b. A with respect to the Punishment as to Defendant 1, an aggravated Punishment as to the Punishment as to the Punishment as to the Punishment No. 3. A with heavier Crimes)

3. Discretionary mitigation (Defendant 2);

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., the first crime and the service of a public official for a long time)

4. Calculation of days of pre-trial detention (the accused).

Article 57 of the Criminal Code

5. Collection (Defendant 1, 2).

Article 134 of the Criminal Code

Parts of innocence

Of the facts charged in this case against Defendant 3, the summary of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Customs Duties) is that the above Defendant habitually committed smuggling as described in Article 3(a) of the said Act.

However, the crime of habitual trafficking stipulated in Article 6 (8) of the Act on the Aggravated Punishment, etc. of Specific Crimes refers to cases where a person who has a habit of smuggling commits the crime of smuggling. According to the certified copy of the judgment attached to the investigation report and each copy of the investigation records, Defendant 3 was sentenced to a fine of 2 million won on April 21, 1993 as a violation of the Customs Act at the Busan District Court. On February 26, 1994, upon receiving a notice of KRW 1.30,000 won as a fine from the Busan District Office for the same crime, from the same customs office on December 29, 1995 to a fine of 1.30,000 won, it is difficult to recognize the fact that he was subject to a notice of the same crime from the same customs office on March 4, 1996 to a fine of 1.530,000 won, taking into account the above facts that the above crime of habitual trafficking was committed after the lapse of 1 year or 10 months.

Therefore, the facts charged of this case should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because it falls under the case where there is no proof of crime. However, the above facts charged include the facts charged of violating the Customs Act by smuggling, so long as the court found the defendant guilty of violating the above Customs Act within the scope of the same facts charged, it shall not be sentenced

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

Judges Lee Jin-hun (Presiding Judge)