[2] The case holding that where an importer recommended by the National Agricultural Cooperatives Federation of Korea, the recommending agency, for imported goods whose market access volume is below the market access volume, files an import declaration on the basis of such recommendation after the expiration of the term of validity of the recommendation, the lower tariff rate of the import declaration quantity below the market access volume can be applied

[2] The case holding that since the term of validity of the recommendation letter as stipulated by the National Agricultural Cooperatives Federation of Korea, which is the recommending agency for imported goods within the market access volume, is merely limited to those which set forth internal policies and criteria for business handling by the recommending agency, and once recommended by the recommending agency, an importer who completes the import declaration within December 31 of the pertinent year, and the quantity of the import declaration does not exceed the annual allocation already allocated to him, the act of recommending the import declaration cannot be deemed to be extinguished merely because the import declaration was made after the expiration of the term of validity of the recommendation letter, unless there are special circumstances such as the case where the import declaration quantity is found later in excess of the annual allocation already allocated to him

2. The costs of lawsuit shall be borne by the defendant.

The following facts may be acknowledged by comprehensively taking into account the following facts: Gap evidence 1 through 3, Gap evidence 3, 4, 9-1, 2, Gap evidence 12, Gap evidence 14, Eul evidence 14, Eul evidence 6, witness white testimony, witness white testimony, fact inquiry to the National Agricultural Cooperative Federation Chairperson of this Court, and the whole purport of the arguments.

(a) A tariff concession system for imported agricultural products whose market access volume is not more than the market access volume;

(1) If an entrepreneur of Korea who is a member of the WTO (WTO) imports goods from another member State of the WTO, in accordance with relevant laws and regulations, such as the Marrakesh Protocol to the General Agreement on Tariffs and Trade 194, the proviso of Article 50(3) and Article 73 of the Customs Act, and Articles 2 and 6 of the Tariff Schedule Regulations under the WTO Agreement, the lower tariff rate shall apply to the imported goods within the market access volume permitted in the year concerned, among the Marrakesh Agreement Establishing the WTO.

(2) Meanwhile, according to Article 12 of the Grain Management Act, a person who intends to import grain, other than those to be permitted, at a concession rate applied to the market access volume in the Schedule of the Republic of Korea under the Marrakesh Agreement Establishing the World Trade Organization, shall obtain the recommendation from the Minister of Agriculture and Forestry. The recommendation service is performed by the National Agricultural Cooperative Federation, which is a nonprofit corporation designated by the Minister of Agriculture and Forestry (hereinafter referred

B. The Plaintiff’s return and payment of customs duties on the full-time capital reduction, etc.

(1) The Plaintiff is a company whose business purpose is the manufacture and sales business of the cotton, and the Plaintiff is manufacturing and selling the starch imported from a foreign country.

(2) Around October 2000, the Plaintiff filed an application with the National Agricultural Cooperatives Federation for a request for the allocation of annual revenue quotas in 2001 so that the portion of franchis can be imported at a low concession rate. Accordingly, the Agricultural Cooperatives Federation allocated 2,250t of the market access quota in 2001 among 35,686t of the market access quota in 2001 for the portion of franchis.

(3) After that, on July 2001, the Plaintiff requested the NAF to issue a letter of recommendation for 100.8t (hereinafter “instant goods”) to be imported from France to the NAF, and on July 4, 2001, the NAF issued a letter of recommendation for the instant goods in electronic form, and notified the Defendant online. The term of validity of the letter of recommendation was set on August 2, 2001.

(4) On July 10, 2001, the Plaintiff did not immediately follow the import clearance procedure despite the arrival of the instant goods at the Busan Port. On August 10, 2001, the Plaintiff requested the Doman Customs Office to follow the import clearance procedure.

(5) On August 31, 2001, when filing an import declaration on the instant goods on behalf of the Plaintiff on behalf of the Plaintiff, the Plaintiff prepared and submitted an import declaration stating the tax amount of KRW 5,019,70, value-added tax of KRW 6,776,60, the total of KRW 11,796,30, the tax amount of KRW 11,796,30 (the declared number 2104-01-02074), and on the same day, the Plaintiff reported and paid the said tax amount.

(6) On the other hand, the market access volume in 2001 for the reduction of capital (items No. 1108.13-000 on the Tariff Schedule) as set out in the tariff concession regulations under the WTO Agreement, etc. is 43,452t and the market access volume for those below the market access volume is 8,452% and the market access volume is 470.3%.

C. Defendant’s correction of the paid tax amount

(1) On August 5, 2003, the head of Sung-nam Customs Office examined the customs duty amount returned and paid by the Plaintiff, and requested the Defendant, who is the head of the customs office having jurisdiction over the customs clearance place, to rectify the tax amount paid at the time of the import declaration, on the ground that the Plaintiff completed the import declaration after the expiration of August 2, 2001, which is the effective period of the recommendation, beyond August 2, 2001, on the grounds that there was no valid recommendation at the time of the import declaration.

(2) Accordingly, on August 21, 2003, the Defendant calculated the amount of customs duties, additional duties, and value-added taxes by applying the tariff concession rate of 470.3% applied to the Plaintiff when the market access volume exceeds the market access volume (hereinafter “instant disposition”). From that amount, the Defendant issued a notice of correction of the amount of customs duties and a notice of duty payment stating that the Plaintiff would collect the amount of customs duties, additional duties, and value-added taxes (value 290,076,170 + duty 29,07,610 + additional duties 63,816,750 + additional duties 63,816,750) (hereinafter “instant disposition”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

(1) The recommendation of the NAF is merely to confirm that the imported goods are less than the market access volume for the pertinent year. As such, the online document transmission system that is sent by the Defendant and the NAF, the recommending agency, can be verified by means of a direct computer as to whether the Defendant was recommended by the NAF due to the establishment of the online document transmission system that is sent by electronic document between the Defendant and the NAF, the recommending agency, the recommendation letter by the recommending agency shall not be deemed to have to have been submitted to apply the low concession tariff rate on the grounds that there is no reasonable ground to require the import reporter to submit the recommendation letter. Therefore, as long as the instant goods are less than the annual quota allocated to the Plaintiff among the market access volume for the year 2001,

(2) In addition, the relevant statutes do not provide for the validity of a recommendation whose validity period has expired, and the Korea Customs Service, as in the case of a quota tariff to be submitted at the time of import declaration, does not bind the application of the quota tariff, and the Korea Customs Service takes the position that if goods are cleared on the grounds of a recommendation whose validity period has expired, the quota shall not be additionally collected due to the lapse of the validity period. Such interpretation shall be equally applied to customs duties. As such, insofar as the instant goods were declared on the grounds of a recommendation issued in the relevant year, the application of the lower concession rate shall not be excluded on the grounds that the validity period of the recommendation has expired.

(3) The NACF sent the letter of recommendation to the Defendant in electronic form, and did not notify the Plaintiff of only the date of recommendation and the number of recommendation. The term of validity of the letter of recommendation was issued directly to the Plaintiff or notified to the Plaintiff. The term of validity of the letter of recommendation is not stipulated in the relevant statutes, but is stipulated in the Ministry of Agriculture and Forestry. This is merely a provision of internal policies and standards, and thus has no legal effect. Even if the NACF notified the Defendant of the term of validity of the letter of recommendation through electronic document, it is merely an exchange of information among national agencies. Thus, the term of validity of the letter of recommendation shall be deemed to have not been determined separately.

(4) If the term of validity of the recommendation is determined by the Ministry of Agriculture and Forestry’s notice, the validity period shall be the period from July 4, 2001 to October 2, 2001, which is the 90-day date of recommendation. Thus, the Plaintiff’s letter of recommendation shall not be deemed to have been in excess of the term of validity at the time of submission of the import declaration.

(5) The Defendant’s acceptance of the import declaration of the instant goods and the Plaintiff’s disposal of the instant goods at two years only after the consumption of all the instant goods was in fact contrary to the previous import declaration acceptance disposition, and the instant disposition that the term of validity of the letter of recommendation expired even though the NAC, an administrative agency, committed an unlawful act that was not issued to the Plaintiff, was in violation of the principle of gold Ba or the principle of trust and good faith under the Framework Act on National Taxes.

B. Defendant’s assertion

The plaintiff's assertion is without merit for the following reasons.

(1) Relevant statutes, such as Articles 112 and 94 of the Enforcement Decree of the Customs Act, require submission of recommendations at the time of import declaration, which have the nature of mandatory provisions. Therefore, in order to be subject to low tariff rate, submission of recommendations without defects is required. Such recommendations shall not fall under those requirements.

(2) The quota tariff stipulated in Article 71 of the Customs Act is a system for price stabilization, the domestic market for agricultural, forestry, and livestock products is open to the domestic market, the rapid opening of the market is alleviated, and the concession duties to protect the domestic agriculture, forestry, and livestock industry are different in nature from each other. Thus, even if the Korea Customs Service takes the position that if the goods are cleared on the basis of a letter of recommendation whose validity period has expired, the quota tariff cannot be collected on the grounds that the validity period has expired

(3) The setting of the validity term of a recommendation is a system to prevent the goods recommended instead of giving policy preference to the importer from being used for their intended purposes or from disturbing the market by illegally distributing them. Thus, it is merely an internal policy and standard for the recommendation handling, and thus, cannot be said to have no legal effect.

(4) A certified customs broker acting for the plaintiff or import declaration could confirm in advance the validity of a letter of recommendation in electronic document using the recommendation number and recommendation date notified by the National Agricultural Cooperative Federation, and the National Agricultural Cooperative Federation has sufficiently notified it by means of public notice or notification. Thus, the plaintiff's responsibility is to exceed the validity of the letter of recommendation.

(5) The Customs Act takes the method of declaration and accepts the import declaration, and only after the import declaration was accepted, the Defendant did not publicly express its view that the rate of market access volume below the market access volume is applied even if the submission of a letter of recommendation with the expiration of the validity period. Thus, the instant disposition cannot be deemed as contrary to the principle of speech or the principle of good faith under the Framework

C. Relevant statutes and regulations

Attached Form is as shown in the attached Form.

D. Facts of recognition

The following facts may be acknowledged by comprehensively taking into account the following facts: evidence A5, evidence A13-1, evidence A13-2, evidence A14, evidence A14, and evidence B-6, witness white view testimony, Nonghyup National Federation Chairperson of this Court, and the Commissioner of the Korea Customs Service's overall purport of the arguments.

(1) The Plaintiff was issued five copies of a letter of recommendation with respect to the total amount of reduction of capital in 2001 by the NAF. The specific date of recommendation and the amount of recommendation shall be 140t on January 12, 2001, 175t on February 13, 2001, 192.5t on March 24, 2001, 10.8t on July 4, 2001 (the instant goods), 140t on July 16, 2001, and its aggregate shall be 748.3t on July 3, 2008. This is within 2,250t of the total amount of total amount of reduction of capital in order to be distributed to the Plaintiff for the year 2001.

(2) The NAF shall issue a letter of recommendation in the previous course of the NAF, which shall be closed, and after the introduction of the electronic data exchange system for customs clearance in the latter half of 1999, notify the customs office of the fact of the issuance of the letter of recommendation and its contents through the computer network, and the applicant company shall not issue a separate letter of recommendation.

(3) The AFF shall be effective for 30 days and shall not exceed December 31 of the year in question, and shall be bound to return a letter of recommendation to the AFF if the term of validity expires when the letter of recommendation is waived, or if the quantity allocated is not imported by December 31 of the year in question.

(4) The NACF confirms the annual cumulative recommendations of recommending applicants and supervises their use based on their respective purposes. A company that uses the entire import for any purpose other than the designated purpose or commits an unlawful outflow, etc. is subject to ex post facto management by excluding them subject to tariff recommendation. Accordingly, the Plaintiff must report to the NAF each month that the Plaintiff uses the entire import for the purpose and quantity of the imported portion.

(5) On the other hand, the NAF allocated revenue quotas for the year 2001 to each company, based on 70% of the 2000 usage usage in the year 200 and 30% of the 2001 use plan. However, the NAF adjusted the 50% use plan in the year 2001 to 50% of the 2000 use plan, and allocated it so that the supply and demand imbalance does not appear in consideration of new participating enterprises and small-sized enterprises.

(6) Meanwhile, in the case of the quota tariff that has the recommendation system like the tariff concession, the recommendation of the quota tariff is merely a mere confirmation of the volume of the quota tariff to be applied, and as such, the additional contents such as the validity period set on the recommendation letter are not bound by the quota tariff. Thus, the recommendation of the quota tariff is effective even after the validity period expires. However, the opinion that the application period prescribed in the provision on the application of the quota tariff under Article 71 of the Customs Act, which is the Presidential Decree, i.e., the application period of the upper half of the year, and the application period of the quota cannot be applied to the next year.

(e) Markets:

(1) the significance of tariff concessions and the recommendation system of the market access volume for them;

Tariff concessions refer to a kind of international agreement that makes it impossible to award customs duties when the tariff rate is reduced through multilateral negotiations, unless there is a special reason to the extent that the reduced rate would reach or exceed the tariff rate, and the WTO system establishes a minimum market access to the domestic consumption of the importing country with respect to the goods of the importing country in order to prevent the injury to the industry of the importing country by opening the market at one time in order to prevent the injury to the industry of the importing country by the domestic consumption of the goods of the importing country, with the exception to the previous free trade.

The minimum market access volume here refers to an agricultural product the import quantity of which in the base year is less than 3% of domestic consumption. As such, the import agricultural product amounting to less than 3% of domestic consumption in the first year (the annual increase to 5% in the last year) in the first year, i.e., the former lower tax rate in lieu of the domestic or foreign price difference in the agricultural product, shall apply to the market access volume, and the higher tax rate corresponding to the difference in domestic or foreign prices of the agricultural product shall apply to the excess quantity (see Constitutional Court Order 97HunBa65, Nov. 26, 1998, etc.).

In such a case, the market access volume is only less than 5% of the total domestic consumption volume, while the market access volume is merely less than 5% of the total domestic consumption volume. On the other hand, because low-rate customs duties are imposed on the import of agricultural products corresponding to the market access volume and profits therefrom are large, it is necessary to reasonably distribute them, so that the Minister of Agriculture and Forestry exercises the recommendation right and distribute the import volume, and the profits therefrom are recovered from the Agricultural Product Price Stabilization Fund, etc. (see the above Order 97HunBa65, supra). Such recommendation system is more relaxed than

(2) The submission of a recommendation whose effective term expires and whether the concession rate is applied.

As seen earlier, the Minister of Agriculture and Forestry’s recommendation system for the market access volume as to the market access volume is aimed at distributing the volume to importers of goods subject to a low market access volume ratio to a certain quantity within the market access volume, thereby fairly distributing economic benefits arising from importing agricultural products as a low-rate tariff. As such, the basic duty of the recommending agency is to prevent cases where the total of the volume requested for recommendation by all importers exceeds the market access volume determined by the tariff concession regulations in accordance with the WTO Agreement, etc., or where the cumulative volume of recommendation by each importer exceeds the importer’s allocation for the pertinent year, thereby making unfair profits or confusion in market order.

In light of the above purport of the recommendation system, a person who intends to be subject to a low-rate tariff concession is necessarily recommended by the recommending agency, and even if the import quantity is within the market access volume, it is reasonable to deem that the low-rate tariff rate applied to the market access volume cannot be applied (see, e.g., Supreme Court Decisions 9Da65035, Nov. 24, 200; 2001Du4832, Feb. 14, 2003).

However, the relevant laws and regulations only stipulate that an import trader shall obtain a recommendation letter from the recommending agency. The term of validity of the recommendation letter shall be determined by the Ministry of Agriculture and Forestry and the public notice of the Agricultural Cooperatives Federation. In light of its contents, the market access volume or the import allocation volume to each importer shall be determined every year. In particular, Article 9 of the Ministry of Agriculture and Forestry provides that the term of validity of the recommendation letter shall not exceed December 31 of the pertinent year. Ultimately, the recommendation letter shall be deemed as a system for managing and controlling the total market access volume or the individual import allocation volume on an annual basis. Accordingly, the recommendation letter issued once shall be deemed as effective until the end of the pertinent year unless there are special circumstances. The National Agricultural Cooperatives Federation, the recommending agency, can find that the quantity newly recommended exceeds the annual quota allocated to the requesting agency by verifying the cumulative quantity of the recommendation letter for the pertinent year by data held by it, and thus, there is room for the National Agricultural Cooperatives Association to view that the new recommendation letter has already been valid for more than three months after the date of the recommendation letter as a new one-month.

Therefore, the instant disposition that applied a high concession rate exceeding the market access volume solely on the grounds that the term of validity of the letter of recommendation received from the Agricultural Cooperatives Federation for the instant goods expired is unlawful without examining the remainder of the disposition.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges Go Jong-ju (Presiding Judge) Kim Jong-sung