[2] In a case where an exporter of goods files an export declaration under the name of the owner of goods or a customs broker, customs broker, or customs clearance handling corporation under the Customs Act, whether the crime of smuggling under Article 269(3)1 of the former Customs Act is established (negative)

[2] In light of Articles 241(1), 242, 269(3)1, and 276(1)4 of the former Customs Act (amended by Act No. 11458, Jun. 1, 2012; hereinafter the same) and Article 246(1)5 of the former Enforcement Decree of the Customs Act (amended by Presidential Decree No. 23759, May 1, 2012; hereinafter the same), if the exporter of the goods files an export declaration under the name of the owner of the goods or a licensed customs broker, the exporter of the goods cannot be deemed to have exported the goods without filing an export declaration, and thus, if Article 269(3)1 of the former Customs Act is not established, and if Article 241(1)4 of the former Enforcement Decree of the Customs Act and Article 246(1)5 of the former Enforcement Decree of the Customs Act are falsely reported, such as the business registration number of the owner of the goods, and Article 266(1)4 of the former Enforcement Decree of the Customs Act are established.

Criminal facts have to be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the selection of evidence and the probative value of evidence conducted on the premise of fact-finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act).

For the reasons indicated in its holding, the court below affirmed the judgment of the first instance that found Defendant 1 guilty of the criminal facts in the judgment of the court of first instance, which found that Defendant 1 received the export price from a Japanese customer without reporting in advance to the Minister of Strategy and Finance, and rejected the Defendants’ allegation in the grounds for appeal.

Of the grounds of appeal, the argument disputing the lower court’s fact-finding is merely an error with the lower court’s determination on the evidence selection and probative value, which belongs to the free judgment of the fact-finding court. In addition, even if examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding a crime of violating

2. The grounds of appeal as to the violation of the Customs Act are examined ex officio prior to the judgment.

A. (1) In order to export goods, the former Customs Act (amended by Act No. 11458, Jun. 1, 2012; hereinafter the same) provides that the name, standard, quantity, and price of the relevant goods and other matters prescribed by Presidential Decree shall be reported to the head of a customs office (Article 241(1)). The said declaration is made under the name of the owner of the goods or the customs broker, the customs broker, or the customs clearance handling corporation (hereinafter “customs broker, etc.”) under the Customs Act (hereinafter “customs broker, etc.”). Furthermore, the former Customs Act provides that a person who exports the goods without filing the said declaration shall be punished by imprisonment with prison labor for not more than three years or by a fine equivalent to the cost of the goods under Article 269(3)1 or a person who fails to file a report under Article 241(1) or files a false report shall be punished by a fine not exceeding the cost of the relevant goods by filing a false declaration or a false declaration under Article 276(1)4.

(2) Meanwhile, Article 246(1)5 of the former Enforcement Decree of the Customs Act (amended by Presidential Decree No. 23759, May 1, 2012; hereinafter the same) provides for a “business registration number and customs clearance code” as one of the matters to be reported to the head of a customs office at the time of exportation pursuant to Article 241(1) of the former Customs Act. Although the former Customs Act does not expressly state who is the business registration number, it is reasonable to conclude that the above provision provides for a business registration number, etc. as the declaration of business registration number, etc. at the time of exportation of goods separately from the person who filed an export declaration and the person who filed an import declaration in accordance with Article 242(1) of the former Customs Act to report the business registration number, etc. under Article 241(1)1 of the former Enforcement Decree of the Customs Act (see, e.g., Article 160, 172, 214).

(3) Ultimately, in light of the above provisions and legal principles, if the exporter of the goods files an export declaration under the name of the owner of the goods or a licensed customs broker, etc., it cannot be deemed that the exporter of the goods exported the goods without filing an export declaration, and thus, the crime of smuggling under Article 269(3)1 of the former Customs Act is not established. However, if the owner of the goods files a false declaration on the matters stipulated under Article 241(1) of the former Customs Act and each subparagraph of Article 246(1)4 of the Enforcement Decree of the former Customs Act, such as the business registration number of the owner of the goods, etc., the crime of false declaration is established.

B. According to the reasoning of the first instance judgment and the evidence duly admitted, Defendant 2 Co., Ltd. (hereinafter “Defendant Co., Ltd.”) exported clothes to Japan on the date and time indicated in the facts charged, and delegated the affairs pertaining to the export and customs clearance procedures to ○○ Trade (Trade in △), Defendant 1, the actual representative, the transportation company, etc. (2) requested a customs broker, etc. to report export of clothes of the Defendant Co., Ltd. on the export of the above export declaration. (3) However, the export owner column of the above export declaration stated the trade name, business registration number, etc. of the company unrelated to the Defendant Co., Ltd.

C. Examining the above facts in light of the relevant provisions and legal principles as seen earlier, inasmuch as there was an export declaration under the name of a licensed customs broker, etc. on the above clothing export by the Defendant company, it cannot be deemed that Defendant 1 committed the crime of smuggling export and import under Article 269(3)1 of the former Customs Act. However, since Defendant 1 filed a false declaration on matters concerning the owner of goods, it is reasonable to view that it can be punished for the crime of false declaration under Article 276(1)4 of the former Customs Act.

D. However, the first instance court found Defendant 1 guilty of this part of the facts charged on the crime of smuggling under Article 269 (3) 1 of the former Customs Act, stating, “On the ground that the export declaration was filed differently from the fact that the export declaration was filed by the owner of the goods exported to Japan, and Defendant 1, the actual operator, committed the above act of violating the duty.” The lower court affirmed the first instance judgment.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the crime of smuggling under Article 269 (3) 1 of the former Customs Act and the crime of false declaration under Article 276 (1) 4 of the former Customs Act.

3. Scope of reversal

The part of the judgment of the court below in violation of the Customs Act should be reversed, and since the judgment of the court below rendered a single sentence on the grounds that the conviction of violation of the Foreign Exchange Transactions Act and the concurrent crimes under the former part of Article 37 of the Criminal Act are concurrent crimes

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)