1. Article 241(1) of the former Customs Act (amended by Act No. 12027, Aug. 13, 2013; hereinafter “former Customs Act”) provides that in order to export, import, or return goods, the name, standard, quantity, and price of the goods in question and other matters prescribed by Presidential Decree shall be reported to the head of the relevant customs office. Article 242 of the same Act provides that a declaration under Article 241(1) shall be made in the name of the owner of the goods or a licensed customs broker, a customs broker, a customs broker, or a customs clearance corporation under the Customs Brokers Act (hereinafter “certified customs broker, etc.”). Article 269(3)1 and 2 of the same Act provides that a person who exports the goods without filing a declaration under Article 241(1) and a person who exports the goods in question shall be punished as an smuggling export offense, and Article 276(1) of the same Act provides that a person who fails to file a false declaration or files a false declaration under Article 241(2).

In full view of the contents and purport of the above provisions, “export of goods without filing an export declaration pursuant to Article 241(1)” under Article 269(3)1 of the former Customs Act shall be deemed to mean the case where the owner or customs broker, etc. of the goods exports the goods without filing an export declaration. It shall not include the case where the export declaration was filed but the export declaration contains false description of the name, standard, quantity, price, export declaration, etc. of the goods.

2. According to the evidence duly admitted by the first instance court, the Defendant, while exporting clothing, etc. to Japan, delegated the export and customs procedures to the Young-gu Trade in Korea, and the Yongsan Integrated Logistics Co., Ltd, upon delegation from Young-jin Trade, requested a licensed customs broker, etc. to report the export of clothing of the Defendant under the name of the Defendant, such as a licensed customs broker, etc.

Examining these facts in light of the legal principles as seen earlier, even if there was an export declaration under the name of a licensed customs broker, etc. on the above clothing export, it cannot be deemed as a crime of smuggling export under Article 269(3)1 of the former Customs Act, even if there was a false declaration on the export declaration, etc. at the time of filing the declaration.

Nevertheless, the lower court, on the grounds the grounds indicated in its reasoning, determined that the Defendant committed the smuggling export crime. Therefore, the lower court erred by misapprehending the legal doctrine on the smuggling export crime under the former Customs Act, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

In addition, as long as the export of the defendant's clothes does not constitute the crime of smuggling, since the property generated by export such as the clothes cannot be subject to the Act on Regulation and Punishment of Criminal Proceeds Concealment, this part of the judgment below which found the defendant guilty of the violation of the Act cannot be maintained.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court 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 Ko Young-han (Presiding Justice)