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(영문) 대법원 1980. 4. 22. 선고 80도215 판결
[특정범죄가중처벌등에관한법률위반,방위세법위반,군용물등범죄에관한특별조치법위반,특수절도(변경된죄명:특수절도),배임증재,예비적죄명관세법위반,특수절도교사,상습장불취득,특수절도][공1980.6.15.(634),12830]
Main Issues

Cases not falling under Article 2 of the Act on Special Measures for Crimes against Military Supplies, Etc.

Summary of Judgment

Although military oil is used or used in the military, it is not distinguished from general oil, it is not a military oil subject to the Act on Special Measures for Crimes of Military Supplies.

[Reference Provisions]

Article 2 of the Act on Special Measures for Crimes against Military Supplies, Etc.

Defendant-Appellant

Defendant 1 and two others

Defense Counsel

Attorney Jin Jae-sop, Attorneys Jin-sop et al. (Law Firm Jin-sopon et al., Counsel for defendant 1)

original decision

Seoul High Court Decision 79No1311 delivered on December 20, 1979

Text

The part on Defendant 1 and 3 in the original judgment is reversed, and this part of the case is remanded to the Seoul High Court.

Defendant 2’s appeal is dismissed.

In regard to Defendant 2, 90 days of detention days prior to the rendering of a judgment shall be included in the original sentence of the court below.

Reasons

First of all, we examine the part of the grounds of appeal on the violation of the Act on Special Measures for the Crimes of Military Supplies, etc. among the defendant 1's attorney's participation in the case and the defendant 3's attorney Kim

According to the reasoning of the judgment of the court of first instance maintained by the court below, the defendant 1 instigated the defendant 3 and the non-indicted to steal this case, and the defendant 3 and the non-indicted acquired the stolen military oil which is habitually stolen, and applied Article 3 (1) of the Act on Special Measures for the Crimes against Military Supplies, etc. to this end, and the court below affirmed the judgment of the court of first instance by applying Article 3 (1) of the Act on Special Measures for the Crimes against Military Supplies, etc., and it is obvious by the evidence of the court of first instance that the oil of this case is actually used in the military for the reason that the above judgment of the court of first instance was maintained. Further, the unification of the oil of this case without distinguishing it from the general oil in light of the fact that it took into account policy consideration the mobilization of war goods, and that it could not be predicted separately in the future, but it is difficult to readily conclude that the Act on Special Measures for Military Supplies, etc. is not a military oil but a military oil.

However, Article 2 (1) of the Act on Special Measures for the Crimes against Military Supplies, Etc. provides that this Act shall apply to acts involving the military supplies, etc. of the armed forces and the United Nations forces in Korea, and Article 2 (2) of the Act provides that "military supplies" refers to the items specified in the attached Table, and the attached Table of the same Act provides that "military supplies" shall be "military oil which is colored differently from the general oil." Thus, even though military oil is used or used in the military, it cannot be viewed as a military oil subject to the above special measures, and therefore, it shall not be punished by the application of the above special measures for the aggravated punishment of the Criminal Act, regardless of the fact that it may be punished by the general criminal law.

If so, the court below, which held that the Defendants’ act of objection was subject to the Act on the Special Measures, should be reversed on the ground that there is an error of law by misunderstanding the legal principles on the said Act, which led to the misunderstanding of the legal principles, and thus, the Defendants' above crime was committed concurrently with several crimes, which eventually affect the conclusion of the judgment. Therefore, without any need to decide on the remaining grounds of appeal, all parts of the judgment of the court below as to Defendant 1 and 3 shall not be reversed

Next, Defendant 2 and his defense counsel Kim Chang-hoon's grounds of appeal are examined.

In sum, although the defendant did not participate in the conspiracys or smugglings of this case, the court below found the defendant guilty on the grounds that the court below erred by misapprehending the rules of evidence or by misapprehending the law that applied Article 6 of the Act on the Aggravated Punishment, etc. of Specific Crimes even though he was a typical special larceny act. However, in light of the records, the court below's finding of facts is just and the defendant's act of this case constitutes Article 6 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes as a duty evasion act under Article 180 of the Customs Act. Thus, the above argument is without merit, and the decision of unfair sentencing among the grounds of appeal is not legitimate grounds of appeal in this case.

Therefore, the part against Defendant 1 and 3 in the original judgment is reversed, and this part of the case is remanded to the Seoul High Court. Defendant 2's appeal is dismissed, and 90 days out of the number of days of confinement before the pronouncement of judgment is included in the original sentence in accordance with Article 57 of the Criminal Act. It is so decided as per Disposition by the assent of all participating judges who are involved

Justices Ahn Byung-soo (Presiding Justice)

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