[1] The meaning of "goods different from the pertinent imported goods" under Article 269 (2) 2 of the former Customs Act

[2] In a case where the customs duty of the goods reported on the import declaration and the goods actually imported are different, whether the goods can be deemed identical (negative)

[3] Whether the goods designated as the goods subject to a prior tax examination and the goods not so designated may be deemed identical (negative)

[4] In a case where the Defendant, the representative director of a trade company, declared that he was to import the Cheonggo and the Pacific Congo and actually imported it, the case reversing the judgment of the court below which held otherwise on the ground that it constitutes a crime of smuggling import under Article 269 (2) 2 of the former Customs Act on the ground that it constitutes a crime of smuggling import under Article 269 (2) 2 of the former Customs Act on the grounds that it constitutes a crime of smuggling import under Article 269 (2) 2 of the former Customs Act on the grounds that the goods are identical to the goods of the same kind as the goods at the time of import

[1] Article 269(2)2 of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010) refers to all goods other than the goods reported by the import declaration, but not to all goods other than the goods whose import declaration was filed or the goods whose identity is recognized as identical. Here, the same kind of goods refers to the goods of the same kind, the requirements for the import declaration are identical, and even the goods of the same kind are the same goods, if the requirements for the import declaration are different.

[2] Since the payment of customs duties or provision of security equivalent to customs duties under the former Customs Act (amended by Act No. 9910, Jan. 1, 2010) is a requirement for an import declaration, if the customs duty rate or tax base of the goods declared in the import declaration differs from the goods actually imported, the goods whose identity is recognized can not be deemed identical, since the requirements for an import declaration are changed.

[3] According to Article 38(2) of the former Customs Act (amended by Act No. 8852 of Feb. 29, 2008), Article 8(1)5 of the Enforcement Rule of the Customs Act, and Article 252 of the former Customs Act (amended by Act No. 10424 of Dec. 30, 2010), where the Commissioner of the Korea Customs Service determines the base price and registers it as the goods subject to prior tax examination in the examination system, i.e., those goods subject to prior tax examination, the Commissioner of the Korea Customs Service must undergo prior tax examination before an import declaration is filed, and if it falls under the goods subject to prior tax examination, he/she must provide a security and obtain approval from the head of the customs office to take out the goods prior to the tax examination. Thus, goods designated as the goods subject to prior tax examination and other goods that are not the goods

[4] The case reversing the judgment of the court below finding the Defendant not guilty on the ground that the act constitutes a crime of smuggling import under Article 269 (2) 2 of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010) on the ground that, in case where the representative director of a trade company: (a) reported the import declaration on the import declaration to be deemed to have been imported; and (b) actually imported the bean; and (c) the rate of customs duties and customs duties are the same as the item number identical to the item number of 10 units specified in the Integrated Tariff and Statistics Schedules; and (d) at the time of import, the "Congo" or the "Congoan" was not a subject matter subject to prior tax examination; and (e) it cannot be deemed to be a good whose identity is recognized as identical to both.

[1] Articles 241(1) and 269(2)2 of the former Customs Act (Amended by Act No. 10424, Dec. 30, 2010) / [2] Article 248(2) of the former Customs Act (Amended by Act No. 9910, Jan. 1, 2010); Articles 27(1) and 38(1) of the former Customs Act (Amended by Act No. 10424, Dec. 30, 2010); Article 27(1) and 38(2) of the former Customs Act / [3] Article 38(2) of the former Customs Act (Amended by Act No. 8852, Feb. 29, 2008); Article 252(2) of the former Customs Act (Amended by Act No. 10424, Dec. 30, 2010); Article 250(1)4(2) of the former Customs Act (Amended by Act No. 25014(1) of the former Customs Act)

[1] Supreme Court Decision 84Do565 delivered on July 24, 1984 (Gong1984, 1463) Supreme Court Decision 2005Do581 Delivered on May 12, 2005 (Gong2004Do1564 Delivered on January 27, 2006) Supreme Court Decision 2007Do300 Delivered on February 12, 2009

Defendant 1 and five others

Prosecutor

Law Firm Don, et al.

Suwon District Court Decision 2008No3786 Decided October 13, 2009

Of the judgment of the court below, the part concerning the violation of the Customs Act, which imported bean (the list of crimes) against Defendant 1 and Defendant 5 corporation, against Defendant 2, 3, 4, and Defendant 6 corporation in violation of the Customs Act (the list of crimes). The part concerning the violation of the Customs Act in relation to Defendant 8, 10, 17, and 20 shall be reversed, and that part of the case shall be remanded to Suwon District Court Panel Division. The remainder of the prosecutor's appeal shall be dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the violation of the Customs Act

Article 241(1) of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010) provides that the name, standard, quantity, price, etc. of the relevant goods shall be reported to the head of a customs office when he/she intends to import goods. Article 276(1)4 provides that “any person who fails to declare matters prescribed in Article 241(1) or files a false declaration, or files a false declaration, in filing an import declaration under Article 241(1)” shall be punished as a false declaration, and Article 270(1)1 provides that “any person who imports goods without filing a false declaration or a false declaration on customs duty, etc. in order to affect the determination of the amount of customs duties” shall be punished as a crime of evading customs duties, separately from Article 269(2)2 of the former Customs Act provides that “any person who files a false declaration or a false declaration on customs duty with the head of a customs office, but shall be punished as a fine not exceeding five years from the cost of the relevant imported goods.”

The term "goods different from the imported goods" in Article 269 (2) 2 of the former Customs Act refers to all goods other than those reported by the import declaration, but not to all goods other than goods whose import declaration was filed or goods whose identity is recognized as identical (see Supreme Court Decisions 2004Do1564, Jan. 27, 2006; 2004Do1564, Jan. 27, 2006; 2004Do565, Jul. 24, 1984; 2005Do581, May 12, 2005).

Of the facts charged in this case, the summary of Defendant 1 and Defendant 5’s violation of the Customs Act is as follows: from November 29, 2005 to December 31, 2005, Defendant 1, the representative director of Defendant 5, as Defendant 1, to Defendant 5’s office, filed a import report on the seven occasions as if he actually imported an empty bean; Defendant 1, as if he had reported that he had actually imported an empty bean; Defendant 1, who was the representative director of Defendant 5, had actually received an import report on the seven occasions; Defendant 1, who actually received the import report on the seven occasions and actually received the import report on the five occasions, was in violation of the Customs Act; and Defendant 2, who actually received the import report on the six occasions; and Defendant 1, who actually received the import report on the six occasions and received the import report on the one hand, and Defendant 2, who actually received the import report on the other goods from Defendant 1 and the other goods.

The court below affirmed the judgment of the first instance court which acquitted the Defendants of the charges of violating the Customs Act, on the ground that: (a) the inspection of goods on which the Defendants reported on the import declaration was made is identical to the number of goods of 10 units specified in the Integrated Tariff and Statistics Schedules; and (b) the rate of customs duty and the amount of customs duty and the amount of tax are identical to all the goods actually imported by customs clearance with the Austria, the Kaopi; and (c) the goods of 10 units specified in the Integrated Tariff and Statistics Schedules; (b) however, the security standard price was set at the time when the goods were subject to prior examination of the amount of customs duties; and (c) it is against the principle of no punishment without the law to punish the Defendants for a violation of the Customs Act by separately determining the Mago For each customs house; and (d) it cannot be said that the Defendants actually imported the Mago or the Mago for each customs house because it is unclear whether the import declaration was made by the Defendants, and thus, it did not violate the procedure of prior tax examination.

According to the facts established by the court below and the evidence duly adopted and examined by the first instance court, "The customs duties and statistical schedules" under the International Convention on the Harmonized Commodity Description and Coding System, Article 84 of the former Customs Act (amended by Act No. 8136 of Dec. 30, 2006), Article 98 of the former Enforcement Decree of the Customs Act (amended by Presidential Decree No. 19478 of May 22, 2006), which is 1201-00 item numbers under the Consolidated Tariff and Statistical no. Consolidated no. 1201-00, 1201-10 item numbers of Solar, 1201-0-100 item numbers, and 1201-1 item numbers and 201 item numbers of the Congo No.

Meanwhile, according to the customs laws and regulations at the time of import of the case, a person who intends to import goods shall file a duty return with the head of the relevant customs office upon filing a declaration on the price of the relevant goods (Article 27(1) and Article 38(1) of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010); the head of the relevant customs office shall, in principle, pay customs duties or provide security equivalent to customs duties at the time of receiving the import declaration (the former Customs Act (amended by Act No. 9910, Jan. 1, 2010). According to Article 248(2) main text of the former Customs Act; Article 248(2) of the former Customs Act (amended by Act No. 9910, Nov. 21, 2005); Article 24-2(1) of the former Customs Act (amended by Act No. 9924, Oct. 1, 2010).

However, according to the tariff schedule at the time of the import of this case, the rate of customs duty is the same regardless of the kind, while the tax base is determined at the price or quantity of imported goods (Article 15 of the Customs Act), and the customs value of imported goods is determined at the price actually paid or payable by the buyer [Article 30 (1) of the former Customs Act (amended by Act No. 8852 of Feb. 29, 2008)], there is no evidence supporting that the purchase price of the Congo stated in the import declaration by Defendant 1 is false on the record, and there is no obvious evidence that Defendant 1 evaded customs duties, or that the purchase price of the Ireland or Ireland in China is lower than the purchase price of the Ireland, Canada, and Ireland. Thus, the judgment below is justified in the same purport as the customs duty amount on the goods declared by the Defendant on the basis of the fact that the domestic sale price of the Congo and Ireland in Korea is higher than the actual import price of the goods declared by the said Defendant.

However, on the other hand, Article 38(2) main text of the former Customs Act (amended by Act No. 8852 of Feb. 29, 2008) provides for the head of a customs office to examine matters stated in the import declaration and the matters to be confirmed under the provisions of the Customs Act when he/she has received a duty declaration; however, the proviso provides that "any goods prescribed by Ordinance of the Ministry of Finance and Economy (the Ordinance of the Ministry of Strategy and Finance) as being difficult to secure duty claims or inappropriate to examine duty amount after having received the import declaration shall be examined before an import declaration is accepted, and Article 8(1) of the Enforcement Rule of the Customs Act provides that "any person who intends to obtain prior approval from the customs office prior to an import declaration is obliged to examine the amount of duty on the goods whose price is high and other goods whose price is to be examined after an import declaration is to be accepted (Article 38(2)5)." Article 38(2)2 of the former Customs Act provides that "the former Customs Service shall obtain prior approval from a supplier prior to an import declaration."

According to the provisions of the customs laws and regulations, where the standard price is determined and registered by the Commissioner of the Korea Customs Service as the goods subject to prior tax examination in the examination system, i.e., goods subject to prior tax examination, the amount of customs duty must be examined before an import declaration is accepted, and in order to take the goods out of the goods prior to the examination, the security is provided and the approval is obtained from the head of the customs office. Thus, the goods designated as the goods subject to prior tax examination and the goods that

However, according to the evidence duly adopted and investigated by the first instance court, the Commissioner of the Korea Customs Service, from September 27, 2005, under the Customs Act and subordinate statutes as seen above, designated only the "Congogo" as an item subject to prior tax examination and registered the base price thereof with the examination system. On October 14, 2005, the first instance court stated that "the Guidelines for Standard Goods and Specifications for 22 Agricultural and Fishery Products subject to prior tax examination" shall be distinguished from other ones in the name of "Sybeping" in English in the name of the description of the import declaration, which is not the item of "Sybe", and then changed the base price for each month, and Defendant 1, who was well aware of such circumstances, did not actually state the fact that it was the object of prior tax examination in order to avoid the pre-assessment procedure, but did not state that it was the object of prior tax examination or the item of goods imported in the Congo or the goods imported from the investigation agency for the purpose of the first instance judgment [the name of Defendant 1 or goods imported].

Examining these facts in light of the legal principles as seen earlier, Defendant 1’s above act is deemed to constitute a crime of smuggling import under Article 269(2)2 of the former Customs Act. It does not change solely on the following grounds: (a) the determination of whether it is a Congo is classified according to the importer’s intended use or intent; (b) the determination of whether it constitutes the Congo; or (c) the Commissioner of the Korea Customs Service determined otherwise on March 1, 2006, when it was after the import of the instant case, by removing the concept of the Congo; and (d) determined the goods subject to prior tax assessment based on different standards.

However, as at the time of the import of this case, it can be known that the “Sai” did not have been designated as the goods subject to prior tax examination, even if Defendant 1 imported the “Sai” and entered it in the import declaration as the “Seo Manan”, it cannot be deemed that both are goods without identity.

Meanwhile, the term “inspection of goods” means confirming whether a customs officer has concealed goods other than the goods for which an import declaration was filed and whether they coincide with the items for which an import declaration was filed (Article 1-0-3(8) of the Notice on the Handling of Customs Duties). As seen earlier, the crime of smuggling import under Article 269(2)2 of the former Customs Act is established where goods are imported without the identity between the reported goods and the goods actually imported. If the goods are not identical, the crime of smuggling import is established even if they were properly inspected. If goods are identical, even if they were not inspected, the crime of smuggling import is not established. Thus, the issue of whether Defendant 1 underwent an inspection of goods by changing goods into goods other than the goods actually imported does not affect the establishment of the crime of smuggling import by Defendant 1 and Defendant 5. However, even if so, a person who is involved in the crime of smuggling import of goods without the identity can be a joint principal offender with the importer.

According to the evidence duly adopted and examined by the first instance court, in the case of Defendant 2, 3, and 4, the defendant 1's participation was made by changing the list of crimes in the attached Form [crime List] 8, 10, 17, and 20 times to other goods than actual imported goods (the list of crimes] 8, 10, 17, and 20 times in the case of Defendant 1's above smuggling, and taking part in the inspection of goods (it can be known that only eight items in the attached Form of the judgment of the lower court (the list of crimes) have been inspected, and there is no evidence to acknowledge that Defendant 2, 3, and 4 had been inspected by changing the list of other goods).

Nevertheless, the court below found Defendant 1 and Defendant 5 as not guilty of the violation of the Customs Act, among the facts charged in this case's case's judgment (attached Form 8 through 20) and among them, Defendant 2, 3, 4, and Defendant 6 as to the violation of the Customs Act's attached Form 8, 10, 17, and 20. The court below erred by misapprehending the legal principles as to the establishment of the crime of smuggling import under Article 241 (1) of the former Customs Act, which affected the conclusion of the judgment. The prosecutor's ground of appeal as to the violation of the Customs Act is justified only for this part, and the remainder is without merit.

2. As to the ground of appeal on the violation of the Plant Protection Act

Examining the reasoning of the judgment of the court below in light of the records, it is just to maintain the judgment of the court of first instance which acquitted the defendants of violation of the Plant Protection Act among the charges of this case on the grounds that there is insufficient evidence to acknowledge that the defendants had taken the bean imported by the defendants without undergoing a phytosanitary officer's inspection, and there is no violation of the law of logic and experience and free evaluation of evidence

3. Conclusion

Therefore, among the judgment of the court below, the part on the violation of the Customs Act, which was sealed by the defendant 1 and the defendant 5 to the bean (the list of crimes Nos. 8 through 20), the part on the violation of the Customs Act in the attached Form [the list of crimes] 8, 10, 17 or 20 concerning the violation of the Customs Act against the defendant 6 corporation shall be reversed, and the part on this part of the case shall be remanded to the court below for a new trial and determination, and the remaining appeal by the prosecutor shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)