[1] Whether Article 6 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 5194 of Dec. 30, 1996) can be applied to the act of evading customs duties after the enforcement of the amended Customs Act (affirmative)

[2] In a case where both the Defendant and the Prosecutor appealed, but the Prosecutor did not submit the grounds of appeal, whether the principle prohibiting disadvantageous alteration applies (affirmative)

[1] Article 6 (2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 5341 of Aug. 22, 1997), which was amended by Act No. 5194 of Dec. 30, 1996, and enforced from Jan. 1, 1997, stipulates that the provisions of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 5341 of Aug. 22, 1997), which were amended by Act No. 5194 of Dec. 30, 1996, shall be subdivided into types of crimes for evading customs duties at the same time, and the statutory punishment for such acts shall be reduced significantly. However, Article 8 of the Addenda of the amended Customs Act provides that "where there are the previous provisions of this Act, the corresponding provisions of this Act shall be cited, regardless of the amendment of the Customs Act, it shall be interpreted that there is a purpose of the same punishment for these acts, which are more severe crimes regardless of the amendment.

[2] Where both the Defendant and the public prosecutor have lodged an appeal but the public prosecutor has to dismiss the appeal by decision because they failed to submit the grounds for appeal regarding the appellate portion, the appellate court is the same as where only the Defendant has lodged an appeal, and thus the appellate court is not sentenced to more severe punishment than that of the judgment of the first instance in accordance with

[1] Articles 179(2) and 180 of the Customs Act; Article 180 of the former Customs Act (amended by Act No. 5194 of Dec. 30, 1996); Article 6(2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 5341 of Aug. 22, 1997) / [2] Article 368 of the Criminal Procedure Act

[1] Supreme Court Decision 97Do3119 decided Mar. 27, 1998 (Gong1998Sang, 1257) / [2] Supreme Court Decision 68Do1870 decided Mar. 31, 1969; Supreme Court Decision 78Do2309 decided Dec. 13, 1978 (Gong1979, 11601)

Defendant 1 and one other

Defendants

Attorney Park Jae-hee et al.

Busan High Court Decision 98No110 delivered on June 24, 1998

The part of the judgment of the court below concerning Defendant 1’s attempted evasion of customs duties due to Defendant 1’s failure to escape from customs duties is reversed, and that part of the case is remanded to Busan High Court. Defendant 2’s appeal is dismissed.

1. Defendant 1’s defense counsel is dismissed, and Defendant 2’s ground of appeal No. 2 (to the extent of supplement in case of supplemental appellate briefs not timely submitted by the defense counsel after the lapse of the submission period), and the Defendants’ respective grounds of appeal are examined together.

Article 180 (1) of the former Customs Act (amended by Act No. 5194 of Dec. 30, 196) provides that "any person who evades all or part of customs duties by fraud or other improper means shall be punished by imprisonment with prison labor for not less than one year nor more than ten years or by a fine equivalent to not more than two times the amount of customs duties evaded." On the other hand, Article 181 of the former Customs Act provides that "any person who exports, imports, or returns goods without filing a declaration under Article 137 (1) and (2) or 138-2 (1) shall be punished by imprisonment with prison labor for not more than ten years or by a fine not exceeding three times the amount of customs duties evaded for the same purpose as that of the former Customs Act (amended by Act No. 5194 of Dec. 30, 196)" shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding seven times the amount of customs duties evaded by the preceding Article 181 of the former Customs Act.

In accordance with the above legal principles, it is proper that Article 6 (2) of the former Aggravated Punishment Act shall apply if the act falling under Article 179 (2) of the amended Customs Act constitutes Article 180 of the former Customs Act. There is no error in the misapprehension of legal principles as to Article 6 (2) of the former Aggravated Punishment Act or the former Aggravated Punishment Act, as otherwise alleged in the grounds of appeal. Thus, the argument in the grounds of appeal

2. We examine Defendant 1’s defense counsel’s first ground of appeal (to the extent of supplement in case of supplemental appellate brief for defense counsel).

According to the records, the court of first instance found Defendant 1 guilty of attempted evasion of customs duties due to Defendant 1's melting import, or guilty of attempted evasion of customs duties due to a shoulder import without all evidence; however, it did not recognize a violation of the former Aggravated Punishment Act on this point and recognized the violation of the former Aggravated Punishment Act only, and sentenced the above Defendant to the forfeiture of seized domestic mons from the above Defendant. The above Defendant appealed on the ground of unfair sentencing, and the prosecutor appealed on the guilty part, but did not submit the grounds for appeal as to the guilty part. The court below decided that the prosecutor did not submit the grounds for appeal as to the part of the prosecutor's appeal as to the guilty portion. Further, the court of first instance reversed the judgment of the court of first instance which did not recognize a violation of the former Aggravated Punishment Act on attempted evasion of customs duties due to a shoulder import of the above Defendant's shouldering import, by applying Article 6 (6) and (2) 1 of the Aggravated Punishment Act, Article 8 (1) and (2) 1 of the Aggravated Punishment Act and Article 8 (2)170 billion (1).

However, in cases where both the defendant and the prosecutor have lodged an appeal but the prosecutor has to dismiss the appeal by decision because they have failed to submit the grounds for appeal regarding the appellate portion, the appellate court shall not render a sentence heavier than that of the first instance judgment in accordance with the principle of prohibition of disadvantageous alteration.

Nevertheless, while the court below's judgment of the first instance court's conviction against Defendant 1 constitutes a case where the appellate brief is not filed within the statutory period, the court below reversed ex officio the judgment of the first instance court due to errors in the application of statutes, and erred in the misapprehension of legal principles as to the principle of prohibition of disadvantageous alteration, which affected the conclusion of the judgment, that the court below's judgment of the first instance court's punishment of imprisonment with prison labor for more than one year and six months, and fine for more than 1.8 billion won, and the seized shoulder shall be sentenced to forfeiture. Thus, the ground of appeal on this point is with merit.

3. Therefore, the part of the judgment of the court below regarding Defendant 1’s attempted evasion of customs duties due to Defendant 1’s failure to escape from customs duties is reversed, and the case is remanded to the court below for a new trial and determination. Defendant 2’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Cho Cho-Un (Presiding Justice)