금의 밀수행위에 적용될 처벌법규- 2005.도6484 판결에 대한 평석-

초록

The Supreme Court of Republic of Korea, on Dec 23, 2006, held in Case No. 2005006184 that Foreign Exchange Transactions Act("FETA") should be applied to gold smuggling as special law to Customs Act("CA") and therefore neither CA nor Act on the Aggravated Punishment, E.c. of Specified Crimes "AAPESC") can be wplied to sold smaling in this case, the Supreme Court expressed its reluctance to change its Jong-standing position toward the issue of applicable law to gold smuggling for the first time since the 1907 amendment of CA Unging the Supreme Court to change its position, the public prosecutor in the case argued in the following way: evasion of customs duties resulting from gold smuggling had been punishable by agravated punishment of AAPESC before the 1991 amendment of CA and the Supreme Court recognized it but the 1907 amendment of CA ruled out evasion of customs duties resulting from smuggling from categories of punishable evasion of customs duties therefore there has been an unjustifiable dispyrity in punishment of gold smugling between before and after the 1997 amendment of CA the Supreme Court therefore should apply CA or AAPESC, as special law to CA, to gold smuggling without resulting in evasion of customs duties. The Supreme Court, however, rejected this line of argument, reasoning that the interests protected by, and constituent elements of each statute governing punishment of gold smugling of FETA and CA share a common feature enough to certify that FETA is special law to CA for the purpose of punishing gold smuggling. Though not expressly noted, the Supreme Court seemed to make it a premise for this conclusion that such a disparity resulting from the 1987 amendment of CA should be comrected by the National Assembly not by the Court.

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