In the case of the concurrent imposition of imprisonment and fine and the method of discretionary mitigation

When both imprisonment and a fine are to be imposed concurrently, unless there is a special provision, the punishment of imprisonment or a fine shall be mitigated only by either party, and the other party shall not be punished by the misunderstanding of the legal principles concerning the reduction of amount in the Criminal Act.

Article 53 of the Criminal Act, Article 194 of the Customs Act

Supreme Court Decision 76Do2012 Decided September 14, 1976 (Supreme Court Decision 11408; Supreme Court Decision 243No-12; Decision 53(6)1258; Court Gazette No. 546No-9357 Decided September 14, 197)

A

Seoul Criminal Court of the first instance (75 Gohap758)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year and a fine of 600,000 won.

When the defendant does not pay the above fine, the defendant shall be confined in a workhouse for the period calculated by converting the amount of KRW 5,000 into one day.

The detention days prior to the declaration of the original judgment shall be included in the above imprisonment for forty days.

The execution of the above imprisonment shall be suspended for two years from the date this judgment becomes final and conclusive.

Seized Spati 10 Spati (No. 3) shall be forfeited from the defendant.

The summary of the defendant's grounds for appeal is as follows: First, the defendant was manufactured without the permission of the relevant authorities or sold food in violation of the specification standards, and thus does not fall under Article 2 of the Act on Special Measures for the Control of Public Health Crimes. The court below found the defendant guilty. The court below erred by misapprehending the legal principles of Article 2 of the Act on Special Measures for the Control of Public Health Crimes, which affected the judgment, and second, the sentence imposed by the court below is too unreasonable.

First of all, considering the first point of appeal of the defendant, the evidence duly adopted by the court below is examined in light of the records of this case, it is reasonable to fully recognize the criminal facts of this case by the defendant, and further, it is reasonable that the court below's criminal facts constitute Article 2 of the Act on Special Measures for the Control of Public Health Crimes. Therefore, the above grounds for appeal that discussed this point

However, according to the court below's decision ex officio, it is clear that the defendant's so-called "the defendant falls under Article 2 (1) 2 and Article 2 (2) of the Act on Special Measures for the Control of Public Health Crimes, but there are reasons to consider the defendant in light of the circumstances, the court below shall reduce the amount of the fine only, and it shall be punished by imprisonment with prison labor for two years and fine for 600,000 won within the scope of the term of the punishment and fine.

However, in a case where both imprisonment and fine are to be imposed concurrently, unless there is a special provision, the punishment of imprisonment or fine shall be mitigated only to either party and the other party shall not be subject to the punishment of a misunderstanding of the principle of discretionary mitigation in the Criminal Act, and it is clear that such illegality has influenced the judgment, and the judgment of the court below shall not be reversed in this regard.

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, and the members are decided again after pleading.

Criminal facts and summary of evidence

The criminal facts of the defendant recognized as a party member and the summary of the evidence are 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.

Application of Statutes

The court below held that the defendant falls under Article 2 (1) 2 and (2) of the Act on Special Measures for the Control of Public Health Crimes. Since the defendant is a first offender and has good reasons to take into account the circumstances such as the opening of the court, the defendant shall be sentenced to discretionary mitigation of imprisonment and fines under Articles 53, 55 (1) 3 and 6 of the Criminal Act, and the defendant shall be sentenced to one year of imprisonment and a fine of 600,000 won within the scope of the term of punishment and fine, and if the defendant does not pay the above fine under Article 70 of the same Act, 5,00 won shall be confined to one day of imprisonment and 40 days of detention prior to the sentence of the court below shall be included in the above imprisonment with prison labor for the defendant under Article 57 of the same Act, but the defendant must be sentenced to the above imprisonment with prison labor for three years from the date when the judgment became final and conclusive, and since Article 62 (1) 3 and 100 of the same Act shall not apply to the defendant's 1.

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

Judges Kim Jin-jin (Presiding Judge)