[2] The case holding that in case where a domestic company designated as a person holding the exclusive import and supply right for beer in a specific domestic area for beer agrees to pay the price for exclusive import and supply right under the name of "import right fee" in addition to the above beer's import price, the above import right should be added to the taxable price as "the price for the use of any right similar thereto" under Article 9-3 (1) 4 of the Customs Act

[2] The case holding that, in case where a domestic company designated as a person holding exclusive import and supply right for beer in a specific domestic area for beer agrees to pay the price for exclusive import and supply right under the name of "import right Fe" other than the above beer's import right, the above import right fee is attached to a specific trademark and is exclusively imported from beer produced by beer in the production process of a specific company, and the above import right fee constitutes a "right similar thereto" under Article 9-3 (1) 4 of the Customs Act, as consideration for the right to exclusively import and supply the above trademark within the supplied area under the global recognition of being attached with the above trademark, which is ultimately paid in relation to the use of a trademark with high global awareness of being used in the supply area and the production know-how of a specific company, and therefore, without relation to the name of the contract, it constitutes a right to share the price for trademark and trade secrets, etc. and various kinds of rights similar to its structure and function.

2. Litigation costs shall be borne by the plaintiff.

The following facts are not disputed between the parties, or they can be acknowledged in full view of the whole purport of the pleadings in each of the statements in Gap evidence 1-1-73, Gap evidence 2-1-2, Gap evidence 3-5, Eul evidence 1, Eul evidence 2-1, Eul evidence 2-2, Eul evidence 3, Eul evidence 4-1, 2, and 3, and there is no counter-proof.

A. On August 21, 1996, the Plaintiff Company: (a) designated the Plaintiff Company as the exclusive importer and supplier within the Seoul and Gyeonggi-do area for the smuggling; (b) designated the Plaintiff Company as the Plaintiff Company’s brand 53208-286 U.S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S.S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. 1 and S. S.S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S................. . 9. 9. 9. 9. 9.

B. After that, from January 3, 1997, the Plaintiff Company imported beer from beer and reported the beer price to the Defendant every time except for the above exclusive import license fees. On September 3 of the same year, around September 3 of the same year, the Plaintiff Company paid USD 1,050,000 to be the exclusive import license fees for beer in 97.

C. Meanwhile, from October 8, 197, the Defendant had been conducting a post-inspection for confirming the legality of customs clearance of imported goods from around October 8, 1997 to the Seoul Customs office, the non-party company was separately paid USD 1 per beer, in addition to beer, under the name of beer beer, in addition to beer price. Since the right of beer's import has been transferred to the Plaintiff company from 97 years after being transferred to the Plaintiff company, there was a separate agreement between the beer and the Plaintiff company on the above exclusive import right, and notified the Plaintiff company that the above amount should be included in the subject of customs duty imposition, based on the ombudsman's notification that Article 9-3 (1) 4 of the Customs Act, Article 3-3 (1), (2), (3) of the Enforcement Decree of the same Act, and Article 3-4 (2) and (3) of the same Act, the Plaintiff company imposed additional tax on the Plaintiff company and the Plaintiff company.

2. Whether the instant disposition is lawful

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful on the grounds that the above exclusive import right fees are similar to those of Article 9-3 (1) 4 of the Customs Act, and related to the beer and be paid under the terms and conditions of transaction for the imported goods, and thus, should be added to the customs value of the imported goods. As such, the plaintiff asserts that the disposition of this case is unlawful for the following reasons.

First, exclusive revenue and supply rights, which are eligible for the above exclusive revenue rights, do not constitute legal rights and business secrets of industrial property rights under Article 3-3 (1) of the Enforcement Decree of the Customs Act, which are the basis for adding taxable values, or of delegations thereof.

Second, in order to add the above exclusive import right fees to the taxable price even if they are included in the subject of the addition of the taxable price, they should be related to the imported goods pursuant to Article 3-3 Paragraph 2, 3, and 5 of the Enforcement Decree of the same Act, and should be paid as the condition of the transaction concerned. The above exclusive import right fees are not realized or integrated into the imported goods themselves, and only are paid in order to compensate for the losses of exporters arising from the unique characteristics of the Korean Liquor Tax Act and the distribution structure of alcoholic beverages pursuant thereto, so they are not related to the beer, which is the imported goods. If the plaintiff company does not receive the status of the exclusive import, it can be imported from beer without a separate payment of the exclusive import right fees, and even if the beer does not receive the beer, they should pay the exclusive import right fees according to the terms and conditions of transaction each year. Thus, the above exclusive import right fees are not required to be added to the above taxable price.

Third, Article 3-3 (1) and (3) 6 of the Enforcement Decree of the Customs Duties Act (amended by Presidential Decree No. 9-3 (1) 4 of the Customs Duties Act), which is the mother, shall only delegate to the Enforcement Decree on the method of calculating the amount of additional elements under Article 9-3 (1) 4 of the Customs Duties Act, and shall not delegate to the Enforcement Decree any rights similar thereto, but shall expand the contents beyond the "legal rights without any ground for delegation," and shall not specify the contents thereof, and thus, the instant disposition of taxation based on this is unlawful.

(b) Related statutes;

Article 7(2) and (3) of the General Agreement on Tariffs and Trade (THL RE REEM EXEE, hereinafter referred to as 'GTRE') provides for the removal of barriers to customs duties and non-tariffs and the expansion of international trade as an equitable and reasonable imposition of customs duties, and Korea also has subscribed to the Convention No. 243 of April 14, 1967. Article 7(2) and (3) provides that the customs value shall be based on the actual price of the goods in Korea and shall not be based on the value of the goods in question, discretionary or processed goods if they are sold under competitive conditions in ordinary commercial transactions, and the actual price thereof shall be determined by the Convention No. 97 of the Implementation of the Convention No. 7 of the Customs Duties and Trade (hereinafter referred to as 'the Convention No. 97 of the Customs Duties and the Customs Duties and the Customs Duties and the Customs Duties and the Customs Duties and the Customs Duties and the Customs Duties and Duties and the Customs Duties and Duties and Duties and the Customs Duties and Duties and Duties and Duties and Rules.

Accordingly, Article 9-3 through 14 of the Customs Act was amended by Act No. 366 of Dec. 29, 1983. Article 9-3(1) provides that the dutiable value of imported goods shall be the transaction price adjusted by adding the amount falling under each of the following subparagraphs to the price actually paid or payable by the buyer for the goods exported to Korea. Subparagraph 4 provides that the price for the use of patent rights, utility model rights, design rights, trademark rights and other similar rights related to the relevant goods shall be calculated under the conditions as prescribed by the Presidential Decree. Article 3-3 of the Enforcement Decree of the Customs Act provides that the term “other rights similar to them” in Article 9-3(1)4 of the Act provides that the legal rights such as copyright, etc. do not belong to the legal rights, but economic value and the technical or managerial rights related to the relevant imported goods shall be deemed to be the price for the relevant goods paid or payable by the buyer to the relevant goods under the provisions of paragraph (2) of the same Article, and Article 9-3 (1) provides that the following provisions shall be applied to the price for the relevant goods:

C. Determination of party members

(1) Whether the exclusive import right fee is subject to a dutiable value added

In light of the contents, history, and form of the above-mentioned provisions, the purpose of Article 8(1)(c) of the Korea Customs Service Act and Article 9-3(1)4 of the Korea Customs Service Act is that if the customs value of imported goods is based on actual market price in accordance with Article 7(2) and (3) of the Korea Customs Service Act, or if the buyer and the seller agree on the actual payment price of imported goods is determined unfairly lower than the competitive market price in ordinary commercial transactions, and instead, if the difference is paid under the name of the buyer, it would result in permitting the evasion of customs duties and preventing the expansion of international trade by free competition. In addition, if the difference between the price of the imported goods and the actual payment price of the imported goods is the price of the imported goods, it would be interpreted that it would be fair and reasonable by adding them to the actual payment price of the goods and the right to use the goods under the Korea Customs Service Act to the effect that it would not be included in the sale price of the goods and the right to use the goods under Article 9(3) of the Korea Customs Service Act.

From this point of view, the exclusive import right of this case shall be deemed to be paid in relation to the use of a trademark and the production know-how, which have a global awareness of the above trademark as the price for the right to exclusively supply in the supply area in the condition of being attached with the trademark affixed by the Plaintiff Company, by exclusively importing beer produced by know-how in the process of the production of smuggling by the Plaintiff Company. Therefore, regardless of the title of the contract, the exclusive import right of this case shall be deemed to fall under the "right similar thereto" under Article 9-3 (1) 4 of the Customs Act, as the right to share the price of the trademark and business secret and the rights similar to the structure and function thereof, regardless of the title of the contract, which is the right to share the above various kinds of rights that are similar to the price of the imported goods, and thus, the Plaintiff’s assertion that the Plaintiff evades customs duties by separately paying the price of the imported goods to the exporter in the name of the exclusive import right not added to the customs value is without merit.

(2) Whether the exclusive import right fee satisfies the relationship with the imported goods and the terms and conditions of transaction

(A) Relation to imported goods

As seen earlier, since the right to exclusive import of this case is related to the soft trademark or the production process of the soft-How, it is a right that shares the characteristics similar thereto in its structure and function as a right similar thereto, and thus the exclusive import right is "the right similar thereto" under Article 9-3 (1) 4 of the Customs Act. Thus, pursuant to Article 3-3 (3) 6 of the Enforcement Decree of the Customs Act, the exclusive import right can be determined in accordance with Article 3-3 (3) 3 (trademark) and 5 (trade secret) of the Enforcement Decree of the Customs Act, which corresponds to the right most similar to the exclusive import right, given the nature of the right in accordance with Article 3-3 (3) 6 of the Enforcement Decree of the Customs Act. In this case, since the plaintiff company imports be a beer manufactured by the soft-how, it is related to the beer, the exclusive import right is imported under Article 9-3 (1) 4 of the Customs Act. Therefore, the plaintiff's assertion on this part is without merit.

(C) Terms and conditions of transaction

Meanwhile, in order to consider the transaction price adjusted in addition to the actual payment price of the imported goods as the dutiable value even though the exclusive import right fee of this case is not actually paid or payable under the above relevant laws and regulations, it is insufficient to acknowledge that it was paid as the transaction price of the relevant goods (see Supreme Court Decision 91Nu10763, Jul. 14, 1992). This is the case where the buyer pays the exclusive import right to purchase the imported goods to the seller for the purpose of purchasing the imported goods (Article 3-3(5)1 of the Enforcement Decree of the Customs Duties Act) and the importer fails to perform his/her duty under this contract and fails to pay the price for the first time within 30 days after the expiration of the contract (Article 11-3(c) and the importer fails to pay the price for the first time within 12 months after the expiration of the contract (see Supreme Court Decision 91Nu10763, Jul. 14, 199).

(3) Whether the principle of no taxation without law is violated

In addition, Article 3-3 (1) and (3) 6 of the Enforcement Decree of the Customs Duties Act limit the scope of "the rights similar thereto" to the legal rights, not only does there are grounds for interpreting "the rights similar thereto" under Article 9-3 (1) 4 of the Customs Duties Act as the legal rights, but also it is rather concrete and limited to the scope thereof. Thus, the argument that the same provision violates the principle of no taxation without the law by expanding its content without the grounds for delegation of the mother law is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case based on the premise that the disposition of this case is unlawful is dismissed as it appears to be one mother and is without merit. It is so decided as per Disposition.

Judges Lee Jung-chul (Presiding Judge)