2. The Defendant’s imposition of KRW 68,259,960 out of KRW 12,302,950 on September 19, 2007, of KRW 12,481,980 on the Plaintiff, and of KRW 10,239,99 on the part of KRW 19,431,010 on the part of KRW 19,431,010 on the part of KRW 134,516,620 on the part of KRW 227,60,070 on the part of KRW 227,60,070 on the part of KRW 3,024,420,350 on the part of KRW 1,785,293,470 on the part of KRW 453,63,660 on the part of the education tax, and each imposition of KRW 267,787,70 on the part of KRW 227,607.

3. The defendant's appeal is dismissed.

4. All costs of the lawsuit are borne by the Defendant.

The Defendant’s imposition of customs duties of KRW 12,302,950 on September 19, 2007 against the Plaintiff and KRW 129,540,150 on traffic tax, KRW 19,431,010 on education tax, and KRW 227,60,070 on November 13, 2007, KRW 227,60,070 on traffic tax, KRW 3,024,420,350 on traffic tax, and KRW 453,662,660 on education tax, shall be revoked.

2. Purport of appeal

A. The plaintiff is entitled to paragraphs (1) and (2) of this Article.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding thereto is dismissed.

The following facts are not disputed between the parties, or may be recognized by taking into account the overall purport of the debate in each description of evidence Nos. 1 to 3, evidence No. 4, evidence No. 1 to 3, evidence Nos. 2 and 3, respectively, and evidence Nos. 1 to 2.

(a)

○○○ M&O Co., Ltd. was a company engaged in the export and import, manufacture, sale, etc. of petroleum products, whose trade name was changed to △△ P&O service corporation on April 11, 2007, and was merged with the Plaintiff on January 11, 2008.

B. The ○○○Om Co., Ltd. (hereinafter referred to as the “Plaintiff”) entered into a oil supply contract with Nowon-gu Co., Ltd., Ltd., which is an intermediary for oil for ships (one tamper or ladler), and entered into a maritime oil supply contract with △△△, Marine Oil Co., Ltd., Ltd., and ○○○mmmmm Co., Ltd, to supply oil to an overseas navigation ship requested by Nowon-○○○.

On the other hand, △△ maritime oil companies and ○○mmm Co., Ltd. concluded a charter contract with ○○ Sea Water Co., Ltd. (hereinafter referred to as “○○ Sea Water”) which is a ship oil supplier to supply oil for vessels supplied by the Plaintiff to overseas ships.

Accordingly, the Plaintiff’s supply of oil for ships to overseas navigation vessels at the request of Labor○○○ Co., Ltd. was originally required to leave the oil supply work for ships to overseas navigation vessels. However, ○○ Sea was actually supplied with oil to overseas navigation vessels through the above charter contract.

(c)

However, ○○○○○○○’s representative supplied oil from the Plaintiff to sell the remainder of the oil supplied by the Plaintiff to Korea (hereinafter “instant oil”), including the instant oil, to the effect that the Plaintiff supplied all of the oil supplied by the Plaintiff to an overseas navigation vessel was normally supplied to the overseas navigation vessel, and submitted a written confirmation of oil supply receipt (redelivery) to the Plaintiff, 42 times from September 25, 2002 to June 7, 2004, by forging the name of the captain or the head of the overseas navigation vessel, with the content that the Plaintiff’s oil, including the instant oil, was supplied by the head of Busan Customs Office to the Plaintiff when the Plaintiff was supplied to the overseas navigation mooring.

(d)

The Plaintiff submitted a certificate of carrying-in (Loading) of the export goods subject to refund as above to the Twitman, and received refund of KRW 140,99,600, traffic tax amounting to KRW 1,853,53,430, education tax amounting to KRW 278,032,320, which was paid when importing oil for vessels from October 15, 2002 to June 14, 2004.

E. After the investigation by an investigative agency, as the oil used in the ship supplied by the plaintiff from among oil used in the ship supplied by the plaintiff was illegally shipped out to the Republic of Korea without supplying the oil to overseas navigation, and the fact of forging the receipt of oil supply was discovered, ○○ was charged with the violation of the Punishment of Tax Evaders Act, fabrication of private documents, and display of the above investigation documents in the Busan District Court, and the first instance court [In Busan District Court 2006No2737, 3032(Joint), Busan District Court 2006.9. 11. 2006. 206. 2607, Busan District Court 2006No2607) was sentenced to imprisonment and sentenced to a suspended sentence of three years on November 29, 2006.

F. Accordingly, on September 19, 207, the Defendant issued the Plaintiff each disposition of imposition of customs duties, traffic tax, and education tax (hereinafter referred to as "customs duties, etc.") of KRW 12,302,950 (including additional dues of KRW 5,820,970), traffic tax of KRW 129,540,150 (including additional dues of KRW 61,280,190), education tax of KRW 19,431,010 (including additional dues of KRW 9,191,020), and on November 13, 207, additionally imposed customs duties of KRW 227,60,070 (including additional dues of KRW 93,083,450), traffic tax of KRW 3,024,420,350 (including additional dues of KRW 129,286,386,686,686,686,686, etc.).

G. On December 14, 2007, the Plaintiff dissatisfied with each of the dispositions of this case and filed an appeal with the Tax Tribunal on December 14, 2007, but the appeal was dismissed on April 25, 2008, the Plaintiff filed the instant lawsuit on July 25, 2008.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

Each disposition of this case shall be revoked on the following grounds.

(1) Each of the instant dispositions is null and void since the two-year exclusion period prescribed in Article 21(1) of the Customs Act has elapsed after the lapse of the exclusion period of imposition.

(2) In order for oil oil refining company to supply overseas navigation ships within the Bo-gun Station, it is inevitable for a ship oil supplier registered for the oil supply business in a bonded area. As to the trading order within the bonded area, the head of the competent customs office has exclusive control and supervision right to exclusively supply and supervise the oil supplied by the Plaintiff, and the Plaintiff is not in a position to manage and supervise an overseas navigation ship. Thus, the Plaintiff did not have any responsibility for the illegal outflow of the oil in this case, which was caused by the representative of the ○○ Sea level, to the sole criminal conduct of the ○○○○○○, and was not known to the Plaintiff.

In addition, as the head of the competent customs office issues a certificate of bringing-in (loading) export goods to be refunded, the authority and the responsibility to confirm whether the oil for the ship was normally supplied to an overseas navigation vessel, such as stated above, is the head of the competent customs office. Thus, even if the certificate of bringing-in (loading) of the goods for export to be refunded of the instant oil was issued in error based on a false oil supply receipt forged by ○○○○, the head of the Busan Customs Office, who is in the position to verify and issue the contents thereof, issues the above certificate of bringing-in (loading) of the goods for export to be refunded to the Plaintiff, shall be protected,

Therefore, it is against the principle of self-responsibility under the Constitution to collect customs duties, etc., whose responsibility is cancelled, even though the Plaintiff did not participate in the illegal outflow of the oil of this case and did not know thereof, trust in the contents of the certificate of bringing-in (loading) export goods subject to refund issued by the head of Busan Customs and cannot be deemed to be liable to the Plaintiff for the refund of the customs duties, etc. of this case.

(3) Even if not, the Plaintiff’s failure to know the fact that the instant oil was illegally leaked to the Republic of Korea is merely a refund of customs duties, etc. on the basis of reliance on and following the fact that it was issued by the head of the Busan Customs Office without knowing the fact that the instant oil was illegally leaked to the Republic of Korea. Thus, it is unlawful to collect customs duties, etc. refunded and impose additional duties.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination as to the expiration of the exclusion period

(1) A tax assessment conducted after the exclusion period of the imposition of a tax has expired is null and void (see Supreme Court Decision 2003Du1752, Jun. 10, 2004).

In addition, under the principle of no taxation without law, the elements of taxation or non-taxation should be avoided, and the interpretation of tax laws should be strict, and the expanded interpretation or analogical interpretation is not allowed (see Supreme Court Decision 2002Du5955, Mar. 12, 2004).

(2) According to Article 21(1)1 of the Customs Act and Article 6 subparag. 4 of the Enforcement Decree of the Customs Act, the exclusion period for customs duties shall, in principle, be two years, or five years from the day following the date of refund where customs duties have been refunded by unlawful means.

In addition, according to Article 4 (1) of the Customs Act, since the provision of the Customs Act, such as the Framework Act on National Taxes, the Traffic, Energy and Environment Tax Act, and the Education Tax Act, is applied preferentially to the imposition, collection, refund, etc. of traffic tax, education tax, etc. imposed and collected by the head of the customs office on imported goods, the exclusion period of imposition of traffic tax and education tax on the oil of this case shall be two or five years as seen above.

According to Article 26-2 (1) of the Framework Act on National Taxes, the exclusion period of general national taxes is five years in principle, and ten years in cases where a taxpayer evades, obtains a refund or deduction of national taxes due to fraud or other unlawful acts. However, with respect to internal taxes such as traffic tax, education tax, etc. collected by the head of the customs office on customs duties and imported goods, the purpose of setting the exclusion period of short-term exclusion is to promote the stability and promotion of trading business by making more rapid than the additional and collection of customs duties, etc. on imported and exported goods in consideration of the national economic importance and special nature of trading business

Meanwhile, Article 21 (1) 1 of the Customs Act provides that Article 270 (5) of the Customs Act provides that "any person who has received a refund of customs duties by unlawful means shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding five times the refunded amount of customs duties. In this case, the head of the relevant customs office shall immediately collect the refunded amount of customs duties by unlawful means."

In light of the legislative intent of the provision on the short-term exclusion period of customs duties and the compliance with the provision on the crime of evading customs duties, etc., "where customs duties have been refunded by unlawful means" under Article 21 (1) 1 of the Customs Act can be interpreted the same as "a person who has received a refund of customs duties by unlawful means" under Article 270 (5) of the Customs Act. Such interpretation also seems to conform to the principle of strict interpretation of the tax law.

However, Article 270(5) of the Customs Act refers to any act that enables a taxpayer to evade customs duties as a result, and that is recognized as unfair by social norms (see, e.g., Supreme Court Decision 9Do3190, Feb. 8, 2000). “In the crime of wrongful refund of customs duties, which is established by such unlawful act, the crime of wrongful refund of customs duties is committed means that a taxpayer commits an unlawful act or attempts to commit an unlawful act while recognizing the fact that the act constitutes an unlawful act and that the act results in the wrongful refund (see, e.g., Supreme Court Decision 2004Do817, Jun. 29, 2006). Ultimately, “where customs duties have been refunded by an unlawful means” as stipulated in Article 21(1)1 of the Customs Act should be construed as the same.

(3) According to the facts acknowledged earlier in this case, ○○○○○, a vessel oil supplier, the Plaintiff’s agent, illegally ships and sells the instant oil to the Republic of Korea, forged a false oil supply receipt as if the instant oil was ordinarily supplied to an overseas navigation vessel, and accordingly, submitted to the Plaintiff with a certificate of bringing-in (loading) export goods subject to refund issued by the head of Busan Customs. The Plaintiff submitted the above certificate of bringing-in (loading) to the Defendant 42 times and received a refund of customs duties, etc. on the ground that the instant oil was supplied to an overseas navigation vessel. Thus, it is sufficiently recognized that the customs duties, etc. on the instant oil were unlawfully refunded.

However, in addition, the plaintiff knew that the oil of this case is not supplied to an overseas ship and illegally leaked to the Republic of Korea by ○○○, or that the contents of the oil supply receipt or the certificate of carrying (loading) the exported goods subject to refund of this case's oil of this case are false, and that if the plaintiff submits to the defendant a certificate of carrying in (loading) the export goods subject to refund of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case's oil of this case

Therefore, it is difficult to deem that the Plaintiff would have received customs duties, etc. on the instant oil by “illegal means” as to the instant oil. Therefore, the period of additional exclusion on customs duties, etc. on the instant oil shall be deemed not to be five years but to be two years.

However, each of the dispositions of this case was made on September 19, 2007 and November 13, 2007 after the expiration of the two-year exclusion period from the day following the day when the Plaintiff received the refund of customs duties, etc. on the oil of this case on 42 occasions between October 15, 2002 and June 14, 2004. Thus, each of the dispositions of this case is null and void.

3. Conclusion

Thus, each disposition of this case is invalid without any need to examine the remaining arguments of the plaintiff, and it is also allowed to seek revocation of the invalidation declaration against the invalid disposition. Thus, the plaintiff's claim of this case seeking revocation of each disposition of this case is justified.

However, the judgment of the court of first instance is unfair in some different conclusions, and thus, the part against the plaintiff among the judgment of the court of first instance is revoked, the plaintiff's claim corresponding thereto is accepted, and the defendant's appeal is dismissed as it is without merit. It is so decided as per