[1] In a case where the Defendant was indicted for importing the domestically reproduced game software without filing a report with the head of a customs office, in which the Defendant was charged with importing the domestically reproduced game software by linking with the dS game machine manufactured by the Japanese company with the dS (DS) card in which the illegally reproduced game software was stored, the case affirming the judgment below which held that the above goods constituted a device that circumvents the technological protection measures that the victim company built in the game machine to protect the program copyright

[2] The meaning of "domestic wholesale price", which is the basis for calculating the amount additionally collected under the former Customs Act, and whether the calculation of the domestic wholesale price in accordance with the market price calculation table is lawful (affirmative with qualification)

[1] Articles 241(1) and 269(2)1 of the former Customs Act (Amended by Act No. 10424, Dec. 30, 2010) / [2] Article 282(2) and (3) of the former Customs Act (Amended by Act No. 10424, Dec. 30, 2010); Article 266 of the Enforcement Decree of the Customs Act

[2] Supreme Court Decision 2005Do4614 Decided September 30, 2005 Supreme Court Decision 2008Do325 Decided March 27, 2008, Supreme Court Decision 2008Do2269 Decided June 26, 2008 (Gong2008Ha, 1102)

Defendant

Defendant

Law Firm International Law Firm, Attorney Kim Dong-jin

Busan District Court Decision 2009No2506 Decided January 14, 2010

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the violation of the former Foreign Exchange Transactions Act

Article 28(1)2 of the former Foreign Exchange Transactions Act (amended by Act No. 9351 of Jan. 30, 2009) provides that a person who pays, etc. without filing a report under Article 16 of the same Act shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding 100 million won. Article 29 of the Foreign Exchange Transactions Act (amended by Act No. 9351 of Jan. 30, 2009) provides that a person who violates a duty to report under Article 16 of the same Act shall be punished by imprisonment with prison labor for not more than one year or by a fine not exceeding one hundred million won, and Article 3 of the Addenda to the Foreign Exchange Transactions Act (amended by Presidential Decree No. 401 of the same Act, Jan. 30, 2009) provides that "the former penal provision and fine for negligence prior to the enforcement of this Act shall apply."

Therefore, in the instant case where the amount of violation of duty to report reaches KRW 568,749,893, the Defendant’s act does not constitute a crime or when punishment is abolished due to the repeal or repeal of statutes. As such, punishment should be imposed under the former Foreign Exchange Transactions Act according to the transitional provision of the Addenda to the same Act. As such, the Supreme Court’s decision that points out in the grounds of appeal is different from the instant case, and thus is inappropriate to be invoked in the instant case. The allegation in the grounds of appeal on this part

2. As to the grounds of appeal on the violation of the former Computer Programs Protection Act and the violation of the former Customs Act

For the reasons indicated in its reasoning, the lower court: (a) determined that the instant chip is a device that circumvents the technical protection measures taken to protect the program copyright regarding the software for dS (DS) game that is not the victim, and that the subject of the instant non-reported act was the Defendant; and (b) affirmed the first instance judgment convicting all of the facts charged.

원심판결 및 원심이 적법하게 채택한 증거들에 비추어 살펴보면, 이 사건 물품을 ‘모드칩’이라고 부르든 ‘어댑터’라고 부르든 이 사건 물품은 이른바 ‘닥터툴’로서 닌텐도 디에스(DS) 게임기와 불법복제 게임소프트웨어가 저장된 메모리카드를 연결하여 불법복제 게임소프트웨어를 정품으로 인식하게 함으로써 위 게임기에 구축된 기술적 보호조치를 무력화시키는 장치에 해당함이 명백하므로, 같은 취지의 원심의 판단은 정당하고, 거기에 상고이유의 주장과 같이 채증법칙을 위반하고 자유심증주의의 한계를 벗어나거나 기술적 보호조치 무력화장치 및 미신고 수입행위의 주체에 관한 법리를 오해하는 등의 위법이 없다.

The remaining grounds of appeal in this part are not legitimate grounds of appeal, as alleged in the grounds of appeal by the defendant or by the court below that the defendant did not consider it as the grounds of appeal or as the subject of judgment ex officio.

3. As to the ground of appeal on collection

Article 282(3) of the former Customs Act provides that a domestic wholesale price of the goods that cannot be forfeited shall be additionally collected from an offender at the time of the offense. The domestic wholesale price under the former Customs Act refers to the price at which the goods arrive at the cost of arrival, including all taxes such as customs duties, customs procedures and expenses for customs clearance, and appropriate profits of enterprises. The calculation based on the “market price index”, one of the calculation methods of the domestic wholesale price, is calculated including all taxes such as customs duties, customs procedures and expenses for customs clearance, and appropriate profits of enterprises based on the price at the port of arrival or appraised value of the goods, unless there is any material evidence that the domestic wholesale price calculated by such method differs from the actual price of the domestic wholesale price, the calculation of the domestic wholesale price under this market price chart shall not be deemed unlawful (see Supreme Court Decision 2008Do2269, Jun. 26, 2008, etc.).

According to the reasoning of the judgment below, the court below determined that the domestic wholesale price calculated as above is not sufficient to recognize that the domestic wholesale price calculated as above differs from the actual price, and there is no other material supporting such difference, and the application of the reverse production rate in the market price table is just in light of the above legal principles and records. The above measures of the court below are just, and there are no errors in the misapprehension of legal principles as to the calculation of the amount of additional collection in accordance with the domestic wholesale price as asserted in the ground of appeal.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)