Whether or not punishment may be mitigated for a person who aids and abets an act of evading all or part of customs duties at a certain rate.

Since aiding and abetting crime under Article 6 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes is subject to punishment equivalent to that of the principal offender, there is no legal mitigation.

Article 6 of the Aggravated Punishment, etc. of Specific Crimes Act and Article 182 of the Customs Act

Defendant 1 and three others

Prosecutor and Defendants

Gwangju District Court Decision 76 high-level 110, 112, 117, 131, 76 high-level 1127)

Supreme Court Decision 77Do629 delivered on May 24, 197

The judgment of the court below is reversed.

Defendants shall be punished by imprisonment with prison labor for five years and fine for 78,264,450 won.

When the above fine is not paid, the defendants shall be confined in the old house for the period calculated by converting the amount of KRW 450,000 into one day.

From among detention days prior to the pronouncement of the judgment of the court below, 175 days shall be included in the court below's sentence, and 95 days shall be included in the above imprisonment.

58,441,185 won shall be collected from the Defendants.

It shall issue an order to pay an amount equivalent to the above fine and additional collection.

1. The summary of the Defendants’ ground of appeal No. 1 is as follows: Defendant 2 and Defendant 3 conspired with Nonindicted 1 and 2 in Japan, purchased gold 58,441,185 won (5 won) at the market price of 55 kilograms for green melting in Japan, and loaded it into the first Jinpy, and let a small-sized ship at the sea around October 26, 1975 at the time of returning to the Republic of Korea, around October 26, 1975, he raised the small-sized ship at the sea before the desire guidance of the South-Nam-gun-gun, and did not evade customs 15,652,890 won, and Defendant 1 and 4 did not aiding and abetting the above smuggling, and therefore, the lower court found Defendant 1 and 4 guilty all of the above facts of crime, and therefore, it is not reasonable to view the above facts of crime by fully considering the records cited by the lower court.

2. The gist of Defendant 2's appeal is that the sentence of the court below which sentenced Defendant 2 to five years of imprisonment and fine of 78,300,000 won is too unreasonable. The gist of the grounds for appeal against Defendant 2 is that the court below's sentence is too uneasible and unfair. Thus, according to Article 6 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes, in this case, a fine of five to ten times of the evaded tax amount (or cost of the relevant goods) shall be imposed concurrently. As acknowledged, the amount of evaded tax in this case is 15,652,890 won and the amount equivalent to five times of the evaded tax amount is 78,264,450 won and the amount equivalent to 10 times of the fine is 156,528,90 won and the amount is 100 won or more, and if the court below's sentence is to reduce it, the court below's sentence of fine of 156,528,900 won or more is justified.

3. The gist of the grounds for appeal against Defendant 1 by the public prosecutor is that the court below's sentence of suspended sentence and fine of KRW 78,300,00 for five (5) years of imprisonment with prison labor is unfair. Thus, in relation to the sentence of a fine, there are the same grounds as examined in the above Paragraph 2, and in relation to the sentence of a fine, a aiding and abetting offender under Article 6 Paragraph 6 of the Act on the Aggravated Punishment, etc. of Specific Crimes shall be punished as if he were the principal offender. Thus, in spite of the fact that in relation to the sentence of imprisonment with prison labor, the court below's decision of suspended sentence for three (3) years of imprisonment with prison labor shall be deemed as a subsidiary offender after selecting the fixed imprisonment (10 years of imprisonment with prison labor) and reduced the amount of imprisonment with prison labor for three (5) years of imprisonment with prison labor, it cannot be acknowledged that the sentence is unreasonable because it is too unreasonable due to a defect in legal interpretation.

4. The gist of Defendant 3’s second ground for appeal is that the sentence of the court below which sentenced Defendant 5 years of imprisonment and fine 78,300,000 won to the same accused is too unreasonable. The gist of the grounds for appeal against the same accused by the prosecutor is that the sentence of the court below is too uneasible and unfair. As such, there are reasons as mentioned in the above Paragraph 2 in regard to the sentence of the fine, and the sentence of the court below against the same accused was imposed within the scope of the punishment where the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes and the crime of embezzlement 70,000 UN were committed concurrently. The above embezzlement part was tried separately from the judgment prior to the remand, and the appeal was dismissed, and it is obvious that the sentence becomes final and conclusive. Thus, the part of the court below against the defendant should be reversed.

5. The gist of Defendant 4's second ground for appeal is that the sentence of the court below which sentenced Defendant 4's imprisonment of five years of suspended sentence and fine of 96,840,000 won to three years of imprisonment is too unreasonable. The gist of the prosecutor's appeal is that the court below's sentence is too unreasonable because the court below's punishment is too uneasible. Thus, in the case of imprisonment, there are reasons as mentioned in paragraph 2 of the above paragraph, and in the case of imprisonment, there are reasons as stated in paragraph 3 of the above paragraph, and the sentence of the court below against the defendant is deemed unfair because the sentence is too uneasible and unfair. In addition, the court below's punishment against the defendant is also limited to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes and the crime of evading customs duty in March 7, 1975. The above preliminary part was separate from the judgment of the court prior to remand and the prosecutor's appeal against the defendant cannot be remanded to the court below's judgment of first instance.

6. Therefore, the judgment of the court below is unfair, and the party member is reversed pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts

Defendant 1: (a) from around December 1974, to around 1974, Defendant 1 was a cook of the first Jinpy (Non-Indicted 3 possession); (b) from around August 1975 to November 198, Defendant 2 was the captain of the said vessel; (c) from around October 26, 1975 to around October 26, 1975 to the deck of the said vessel; and (d) Defendant 4 was each engaged in commerce;

(1) 피고인 2, 3은 공소외 1, 2와 공모하여 1975.9.2.경 여수항에서 제1진복호로 냉동어수출차 출항하여 일본 하관항에 정박중 상피고인 4에게 미리 소지한 일화 2,000만엔을 주면서 녹용구입을 부탁하고 동인을 시켜서 일본 대판시소재 요시쭈상사에서 녹용 149킬로그람을 구입한 후 한국으로 밀수입하려고 하였으나 당시 여수시에 밀수특별수사가 개시되자 위 녹용은 다시 이를 동 상사에 보관시켜 두고 제1진복호는 빈배로 경남 삼천포항으로 귀항하였다가 1975.10.16.경 다시 위 배로 냉동어를 적재하고 하관항에 출항하여 동월 25.경 일본국 오도꼬시마 근해에서 선적미상 일본 소형선박으로부터 피고인 1등 선원들의 조력을 받아 위 녹용 149킬로그람중 약55킬로그람 시가 금 58,441,185원상당을 위 배에 선적하고 여수항으로 귀항중 동월 26. 04:00경 경남 통영군 욕지도앞 해상에서 선명미상의 소형선박에 이를 분선 양육케 하여서 사위의 방법으로 해당관세 금 15,652,890원상당을 포탈하고

(2) 피고인 4는 1975.9.3.경 일본국 하관항에서 공소외 2로부터 녹용구입 부탁을 받고 동 물건을 밀수입하려는 정을 알면서도 일화 2,000만엔을 받아 일본국 대판시소재 요시쭈상사에서 일제 녹용 149킬로그람을 구입 동 상사에 보관하여 두었다가 1975.10.17.경 전시 제1진복호가 다시 냉동어수출차 일본 하관항에 입항하자 피고인 2, 3, 공소외 1등에게 위 보관된 녹용중 55킬로그람 시가 금 58,441,185원상당을 인도하여 한국에 밀수입케 함으로써 동인등의 전항 밀수행위를 방조하고

(3) At around October 16, 1975, Defendant 1, on board the Hanjin Branch, went to the port of Japan in order to leave a freezing port, and entered the port of Japan at around 25.16:00 of the same month, and thereafter, Defendant 1, at around 58,41,185, the market price of KRW 55,00 per annum from the Japanese small ship on the port of loading at around 55,00,000, was known that the goods were to be closely imported by Nonindicted 2, etc., and received and loaded them as Nonindicted 4, 5, and 26.04:0 of the same month during the voyage from the sea before the desire guidance of the South-west Tong-gun through the port of loading around 0, around 26.04:00 of the same month. Thus, Defendant 1 aided and abetted the act of smuggling under paragraph (1).

The facts of the judgment above are examined, each of the above facts

1. The statement that is consistent with the part of the judgment of the court below and the trial court held by the defendant 4;

2. The description of the statement consistent with the facts stated in the judgment among the suspect examination records against the accused 1 and 4 as to the preparation of the public prosecutor;

3. The entries in the protocol of inspection of evidence on the sound recordings (No. 76 voltage 1276) confiscated at the original instance; and

4. Contents of the response sheet made by the customs collector to the fact-finding inquiry by the court below.

5. It is sufficient to prove that a copy of seized pocket book (No. 1) and a tape recording tape (No. 2) can be combined and existing, etc., so there is sufficient proof.

Article 6 (2) 1 and (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 180 (1) of the Customs Act, Article 30 of the Criminal Act, Articles 1 and 4 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 6 (6), (2) 1 and (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 182 (1) and 180 (1) of the Customs Act, Article 30 (1) of the Criminal Act, Article 30 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 50 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 6 (1) 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 55 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 6 (2 of the same Act on the defendant's.

It is so decided as per Disposition.

Judges Lee Dong-tae (Presiding Judge)