[2] The method of recognizing false declaration or intentional return in the crime of returning smuggling under Article 269(3)2 of the Customs Act

1. Regarding ground of appeal No. 1

Considering the legislative purpose of the return regulation system under the Customs Act, the legislative process of the definition of return, the systematic interpretation of the provisions under the Customs Act, etc., it is reasonable to deem that the "return" as an element of Article 269 (3) 2 of the Customs Act carries foreign goods which have arrived in Korea back to a foreign country without undergoing import clearance, and it is not limited to cases where the relevant goods are returned to the owner of the goods who sent the goods. The "return" under Article 269 (3) 2 of the Customs Act can be embodyed without concerns of multiple interpretation at the stage of application of the law. Therefore, since the above provision of the law does not violate the principle of legality or the principle of clarity, it cannot be said that the above provision of the law does not violate the Constitution (see Constitutional Court Order 2007HunBa1, Nov. 27, 2008).

Therefore, the argument in the grounds of appeal that the judgment below which found the defendants guilty of the return of this case based on the above legal provision on the premise that Article 269 (3) 2 of the Customs Act is in violation of the Constitution and null and void is unlawful is based on the erroneous premise, and it cannot be accepted, and there is no error in the misapprehension of legal principles as to Article 269 (3) 2 of the Customs Act, as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

When a person intends to return goods stored in a bonded area, he/she shall report the current status of the name, standard, quantity, price, etc. of the goods stored in the bonded area at the time of the return declaration (see, e.g., Supreme Court Decisions 2004Do1133, May 25, 2006). Therefore, the act of returning the goods stored in the bonded area or other goods not identical thereto after filing a declaration on the return of the said goods constitutes an offense of returning smuggling under Article 269(3)2 of the Customs Act. However, in cases where the return declaration of the said goods is deemed identical to the returned goods even if the said returned goods are not immediately after the declaration on the return, the crime of returning smuggling under Article 269(3)2 of the Customs Act is not established (see, e.g., Supreme Court Decisions 2004Do1564, Nov. 27, 2008; 2007HunBa11, Nov. 27, 2008).

The court below acknowledged the facts as stated in its reasoning based on the evidence duly admitted, and judged that the act of return of this case by the defendants constitutes Article 269 (3) 2 of the Customs Act in full view of the facts acknowledged. In light of the above legal principles and records, the above decision of the court below is justified and acceptable, and there were no errors in the misapprehension of legal principles as to the elements of a crime under Article 269 (3) 2 of the Customs Act as alleged in the ground of appeal.

3. As to the third ground for appeal

In order for the Defendants to be convicted of having committed the instant return act that falls under Article 269(3)2 of the Customs Act, it should be recognized that the Defendants had intention to return the pertinent goods stored in a bonded area or goods other than those recognized as identical to the said goods and return the said goods. Inasmuch as such intent is a matter of internal deliberation, in a case where the Defendants denied it, it is inevitable to prove by the method of proving indirect facts having considerable relation to the nature of the things given the nature of the things, and in such a case, what constitutes indirect facts having considerable relation, it should be reasonably determined by reasonably determining the link of facts based on the degree of close observation or analysis based on normal empirical rule (see, e.g., Supreme Court Decision 2006Do4806, Sept. 11, 2008).

After recognizing the facts in its reasoning based on the duly admitted evidence, the court below determined that the defendants could have sufficiently recognized that there was an intentional act in violation of the Customs Act as above in relation to the return act of this case. In light of the above legal principles and records, the above decision of the court below is just and acceptable, and there is no error of law such as misunderstanding of legal principles as to the defendants' intentional act or misunderstanding of facts as argued in the Grounds for Appeal.

4. As to the fourth ground for appeal

The co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, such as the implementation of a crime through functional control based on the intention of co-processing and the intention of co-processing. Although even if a person who has not directly shared part of the constituent act among the competitors may be held liable for the crime as a co-principal depending on the case of the so-called co-principal, such a person may be held liable for the crime. However, when comprehensively considering the status, role, control or power over the progress of the crime in the whole crime, it should not be deemed that there is a functional control through an essential contribution to the crime, rather than a mere conspiracy (see Supreme Court Decisions 2007Do4702, Oct. 26, 2007; 2007Do6075, Nov. 15, 2007, etc.).

After recognizing the facts in its reasoning based on the duly admitted evidence, the court below determined that Defendant 1 is fully responsible for the return act in this case as a co-principal. In light of the above legal principles and records, the selection of evidence, fact-finding and judgment in the court below is justified and acceptable, and there is no error of law such as misunderstanding of legal principles as to co-offenders or misunderstanding of facts, as alleged in the grounds of appeal.

5. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)