Whether discretionary mitigation may be granted where a fine is imposed on a case in violation of the Customs Act

When a fine is imposed concurrently pursuant to Article 6 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes, it shall not be mitigated pursuant to Article 194 of the Customs Act.

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

Supreme Court Decision 71Do1394 delivered on September 18, 1971 (Supreme Court Decision 9840 delivered on September 18, 197, Supreme Court Decision 193Do11 delivered on September 11, 197, and Article 194(1)193 of the Customs Act

A and one other

Prosecutor and Defendants

Seoul Criminal Court of the first instance (77 High Court Decision 361)

The part of the judgment of the court below against Defendant A shall be reversed.

Defendant A shall be punished by imprisonment with prison labor of two years and six months and by a fine of forty thousand won.

When a defendant A does not impose the above fine, he/she shall be confined in a workhouse for a period calculated by converting 100,000 won into one day.

In regard to Defendant A, 180 days of detention prior to the pronouncement of the original judgment shall be included in the above imprisonment.

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

Seized 57 kilograms (No. 2) for melting from Defendant A shall be confiscated.

All appeals by Defendant B and prosecutor against Defendant B are dismissed.

The appeal by the defendant A and the prosecutor against the defendant is first examined.

The summary of the grounds for appeal by the defendant A, the private defense counsel C, and the public defense counsel D of the same defendant did not commit the facts charged in this case. The court below found the defendant guilty. The judgment of the court below is erroneous in misunderstanding of facts that affected the conclusion of the judgment, and the second court's sentence is too unreasonable, and the summary of the grounds for appeal against the defendant by the prosecutor is as follows: First, Article 6 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 182 (1) of the Customs Act provide that in the case of aiding and abetting a crime under Article 6 of the Act on the Aggravated Punishment, etc. of Specific Crimes, the court below shall punish the defendant as equivalent to the principal offender or the principal offender who committed the crime under Article 6 of the Act on the Aggravated Punishment, etc. of Specific Crimes. However, in applying the so-called punishment of the defendant as to the so-called judgment, the court below erred in the application of Acts and subordinate statutes which affected the judgment, and second, the sentence imposed by the

Therefore, first of all, the first point of appeal by the defendant and his defense counsel is examined in light of the records of this case, and if the evidence duly adopted by the court below is reviewed in light of the records of this case, the defendant's criminal facts of this case can be sufficiently recognized, and there is no error of law as pointed out in the process of fact-finding by the court below. Thus, the grounds for appeal as to mistake of facts cannot

However, according to the court below's ex officio review, the court below held that under Article 6 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 182 (1) of the Customs Act, Article 6 (2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 180 (1) of the Customs Act, a fine equivalent to five to ten times the value of goods or the amount of evaded tax shall be imposed concurrently, and even with respect to this fine, such as imprisonment, legal mitigation shall be imposed as an aiding and abetting offender, and the defendant shall be punished concurrently by a fine as at the time of original trial within the scope of the prescribed amount, which is again mitigated:

However, Article 6 of the Act on the Aggravated Punishment, etc. of Specific Crimes is a provision that punishs specific crimes provided for in Articles 179 through 181 of the Customs Act, and there is no provision that excludes the application of Article 194 of the Customs Act, which is a provision that excludes specific criminal provisions in the case of violations such as the above customs law. In this case, where a crime provided for in Article 180 of the Customs Act is subject to aggravated punishment pursuant to Article 6 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes and a fine is imposed concurrently pursuant to Article 6 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes, even in a case where a fine is imposed concurrently pursuant to Article 6 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, it shall not be subject to discretionary mitigation or discretionary mitigation pursuant to Article 32 (2) of the Criminal Act or Article 53 of the Criminal Act in application of Article 6 (2) and (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes.

Criminal facts and summary of evidence

The criminal facts of the defendant recognized by this court and the summary of the evidence are as shown in each corresponding case 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

Article 6 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 182 (1) of the Customs Act; Article 6 (2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 180 (1) of the Customs Act; Article 6 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 6 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes concurrently imposes a fine; and the defendant is a aiding and abetting offender under Article 32 (1) of the Criminal Act; Article 55 (1) 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 53 and Article 55 (1) 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 6 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 6 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 6 (1) of the Act on the Aggravated Punishment, etc. of Specific Punishment, etc. of Specific Crimes; Article 800 of the Act on the above Act on the defendant's.

Furthermore, the appeal by the defendant B and the prosecutor are examined as to the defendant's appeal against the defendant.

The gist of the grounds for appeal by Defendant B is that: (a) the Defendant has committed the instant facts charged; (b) the lower court found the Defendant guilty; (c) the lower court erred in misunderstanding of facts that may affect the judgment; and (d) the gist of the grounds for appeal by the Prosecutor is that the sentence imposed by the lower court against the Defendant is too unfeasible and unfair. In light of the records of this case, first of all, the Defendant’s criminal facts of this case, which the lower court rendered, can be sufficiently recognized; (d) there is no other law as pointed out in the process of fact-finding by the lower court; and (e) considering various circumstances, such as the motive, means, consequence, age, character and conduct of the Defendant, environment, criminal record, circumstance after the crime of this case, etc., the sentence imposed by the lower court is too inappropriate and unreasonable, and therefore, all of the grounds for appeal by the Defendant and the Prosecutor are not acceptable.

Therefore, the appeal filed by the defendant and the prosecutor shall be dismissed in accordance with Article 364(4) of the Criminal Procedure Act.

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

Judge Advice (Presiding Judge)