[2] The case holding that in a case where an export-import company's officers and employees take out MTBE (one kind of oxygen compound) stored in a bonded area, and made a return declaration to the "MTBE" rather than the "MTBE" in manufacturing and exporting Austria (OMIN, Oily Mixure Inc. Naptha) mixed with other goods on the ship, the act constitutes a crime of smuggling export under the Customs Act because it constitutes "return of goods different from the relevant return goods"

[2] The case holding that in a case where an export-import company's officers and employees take out MTBE (one kind of oxygen compound) stored in a bonded area, and made a return declaration to the "MTBE" rather than the "MTBE" in manufacturing and exporting Austria (OMIN, Oily Mixure Inc. Naptha) mixed with other goods on the ship, the crime of smuggling export is established under the Customs Act because it constitutes "return of goods different from the pertinent return goods"

1. Facts charged;

When the representative director of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) and the chief of the international team file a return declaration of MTBE (MTBE), which is an oxygen compound entered into a bonded warehouse by entering the name of the name of the Plaintiff into “MTOR GSINE” from the border, to Japan, Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”), Nonindicted Co. 1’s representative director and the chief of the international team file a return declaration of the name to Japan. In order to conceal the false entry of the name, the Defendants filed a return declaration of the bill of lading in the same way as indicated in the attached list of crimes in the first instance judgment from July 5, 2001 to December 19, 201, submitted the bill of lading to return the relevant goods and the bill of lading in total on 23 occasions as stated in the “MBE 16,635.178, 178, 292, 200, 250, 27, 200

2. The measure of the court below

The lower court: (a) around July 2001, the Defendants, from around July 2001, demanded Nonindicted Co. 2 to manufacture and export Austria (Oi Maxtha), a kind of gasoline used in Japan, which is a motor vehicle gasoline used for Japan (Oi Maxure Inc.) to be used by Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”) as a Japanese market; (b) Nonindicted Co. 2 demanded Nonindicted Co. 1 to submit the mixed manufacturing method with each material; and (c) recognized that Nonindicted Co. 2 was mixed with the above MTRMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMM.

The court below rejected the defendants' defense counsel's assertion that the return concept should be interpreted only in the case of returning the goods to the owner who sent the goods to a foreign country without importing the goods which entered the bonded area of the Republic of Korea from a foreign country. In light of the interpretation of the Customs Act, the court below reversed the judgment of the court of first instance and acquitted the defendants on the ground that the defendants' act constitutes the elements of Article 269 (3) 2 of the former Customs Act (amended by Act No. 6777 of Dec. 18, 2002, hereinafter "the Customs Act"). Since the defendants' act of this case is the defendants, since the goods which the defendants intended to return to a foreign country in this case are the defendants, the defendants' act of this case exported the oil tanker by mixing them with the oil tanker without obtaining a license for bonded factory establishment, and thus reprimanding such unlawful mixed act does not constitute the elements of Article 269 (3) 2 of the Customs Act even if so, the judgment of the court below reversed and acquitted them.

3. The judgment of this Court

Article 241(1) of the Customs Act provides that when a person intends to return goods, the name, standard, quantity, price, etc. of the relevant goods shall be reported to the head of a customs office, and Article 269(3)2 of the Customs Act provides that a person who files a declaration on the relevant returned goods and other goods that are different from those on which such declaration was filed under Article 241(1) of the Customs Act shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding the cost of the relevant goods. The term “return” here refers to sending the goods which are entered into a foreign country’s bonded area

However, it is difficult to accept the judgment below for the following reasons that the defendants' act does not constitute the elements of Article 269 of the Customs Act.

The purport of Article 241(1) of the Customs Act stipulating that the name, standard, quantity, price, etc. of the relevant goods shall be declared to the head of a customs office when he/she intends to export, import, or return the relevant goods. The declaration of return under the Customs Act is intended to confirm whether the relevant goods meet the conditions prescribed in the Customs Act and other Acts and subordinate statutes related to export and import. The declaration of return can only be made where the relevant goods are stored in a bonded area (Article 243(2) of the Customs Act). A customs officer, upon receipt of the declaration of return, may inspect the returned goods in a bonded area that is a storage place prescribed by the Customs Act to confirm whether the reported goods coincide with the reported goods (Article 246(1) of the Customs Act). A person who filed the declaration of return may, upon receipt of the declaration of declaration of return under the Customs Act, remove the goods declared from a bonded area that is a storage place prescribed by the Customs Act (Article 248(1) and (3) of the Customs Act).

Therefore, the act of returning the goods stored in a bonded area or other goods similar thereto after filing a declaration on the return of the goods in question constitutes Article 269 (3) 2 of the Customs Duties Act. Accordingly, the act of returning the goods stored in a bonded area according to the facts acknowledged by the court below constitutes an act of return of the goods in question, and even if the goods stored in a bonded area were manufactured in mixture with other goods in a bonded area after the goods were taken out of the bonded area, it constitutes an act of return of the goods in question, provided that the goods are not identical to the goods in question, so long as the goods returned by the defendants are not recognized as identical to the other goods in question, the act of return of the goods in question constitutes an act of return of the goods different from the goods in question under the above provision of the Customs Duties Act.

Nevertheless, the court below erred by misapprehending the legal principles on the return declaration in relation to the crime of smuggling export under the Customs Act, thereby adversely affecting the conclusion of the judgment, so long as the court below reported the return to the citizen who actually intended to export the goods, it did not constitute the element of Article 269 (3) 2 of the Customs Act, and found the defendant not guilty of this part of the charges. The ground of appeal assigning this error is with merit.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part not guilty among 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 Shin Shin-chul (Presiding Justice)