[1] Whether it constitutes “import” under Article 241(1) of the former Customs Act in a case where a person acquired a foreign country’s temporary nationality and provided it for use in the Republic of Korea after having acquired a foreign country’s foreign country’s temporary nationality by convenience (affirmative)

[2] Whether a duty-free good constitutes an offense of free import under the former Customs Act where the good is cleared through customs without due process for import declaration (affirmative)

[3] In a case where Defendant B’s director of Defendant A Co., Ltd. purchased a Chinese-registered ship to Chinese marine transportation company, changed the name of the ship, acquired a Cambodian nationality, and brought in the Republic of Korea with a false report as if the foreign-registered ship entered the port for repair, and imported smuggling, the case affirming the judgment below that the Defendants’ act constitutes a crime of non-reported import under the former Customs Act

[4] In a case where the defendant who purchased a Chinese-registered ship did not report charterage that he would rent the ship to the Minister of Finance and Economy and offset it against the purchase price of the ship, the case affirming the judgment below that the above act constitutes a violation of the former Foreign Exchange Transactions Act

[1] In a case where a domestic resident acquires a foreign ship in his/her name by registering the ship in his/her own name in a convenience and acquired a foreign country’s temporary nationality, and carries it into the Republic of Korea for use, it constitutes “import” under Article 241(1) of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010).

[2] Even if a customs duty-free good is imported after lawful procedures prescribed by relevant statutes, such as the former Customs Act (amended by Act No. 10424, Dec. 30, 2010; hereinafter “former Customs Act”), it constitutes a breach of the former Customs Act due to an import without filing a declaration, if the customs duty is cleared without lawful procedures.

[3] The case affirming the judgment below holding that the defendants' act constitutes a crime of non-reported import under the former Customs Act (amended by Act No. 10424, Dec. 30, 2010) in case where the defendant Eul's director Eul purchased China's Chinese sea transportation company's heavy cargo vessels for the purpose of using them in the ship operation business at home and abroad, after changing the name of the ship, acquired Cambodia's temporary nationality, and brought them into Korea with a false report as if the foreign ocean-going vessels entered Korea for repair at home.

[4] In a case where the defendant who purchased a Chinese-registered ship did not report charterage to the Minister of Finance and Economy to rent the ship to a seller Chinese marine transportation company and offset it against the purchase price, the case affirming the judgment below that the above act constitutes Article 28 (1) 2 of the former Foreign Exchange Transactions Act in violation of Article 16 subparagraph 1 of the former Foreign Exchange Transactions Act (amended by Act No. 8863 of Feb. 29, 2008)

[1] Articles 2 subparag. 1 and 241(1) of the former Customs Act (Amended by Act No. 10424, Dec. 30, 2010) / [2] Articles 241(1) and 269(2)1 of the former Customs Act (Amended by Act No. 10424, Dec. 30, 2010) / [3] Articles 241(1) and 269(2)1 of the former Customs Act (Amended by Act No. 10424, Dec. 30, 2010); Article 280 (see current Article 279(1) of the former Customs Act (Amended by Act No. 9261, Dec. 26, 2008); Article 280 (3) of the former Customs Act (Amended by Act No. 10424, Dec. 26, 2010) / [4] Article 208(1) of the former Foreign Exchange Transactions Act (Amended by Act No. 28 subparag. 163)

[1] [2] Supreme Court Decision 2003Do8014 Decided March 26, 2004 (Gong2004Sang, 764) / [1] Supreme Court Decision 2000Do354 Decided May 12, 200 (Gong2000Ha, 1460) / [2] Supreme Court Decision 2000Do3581 Decided December 6, 2002 (Gong2003Sang, 406)

Defendant 1 and one other

Defendants

Law Firm Sejong, Attorney Lee Jong-han

Seoul Central District Court Decision 2010No4166 Decided January 26, 2011

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the defendants' violation of the Customs Act

Even if a domestic resident acquires a foreign vessel in his/her name in a convenient manner, registers the vessel in his/her own name in a foreign country, obtains the foreign country's temporary nationality, and brings it into the Republic of Korea for use, it constitutes importation under Article 241 (1) of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010; hereinafter the "former Customs Act"). In cases where a foreign vessel is imported through lawful procedures prescribed by relevant Acts and subordinate statutes, such as the former Customs Act, and customs duties are not imposed, it constitutes a violation of the former Customs Act resulting from non-reported import (see Supreme Court Decision 2003Do8014, Mar. 26, 2004, etc.).

According to the reasoning of the judgment below, after compiling the evidence duly adopted, the court below acknowledged the facts as stated in its reasoning. At around 15:00 on March 22, 2008, Defendant 1 purchased ○○○○○○○○○○○○,000 Chinese nationality from the Gwangju New Shipping Corporation (hereinafter “instant vessel”) for the purpose of using it for the navigational services at home and abroad. After changing the name of the vessel to △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, the foreign vessel was imported by making a false report as to the business of Defendant 2, and the Defendants’ act constitutes a violation of the former Customs Act. Examining the above legal principles in light of the legal principles, the judgment of the court below is just and acceptable, and it did not err by misapprehending the legal principles as to the principle of free evaluation of evidence or exceeding the bounds of the principle of free evaluation of evidence.

2. As to Defendant 1’s violation of the Foreign Exchange Transactions Act

A. According to the reasoning of the judgment below, the court below, based on the evidence duly admitted, acknowledged facts as stated in its reasoning. The court below, from around December 21, 2007 to December 27 of the same year, it set off USD 162,162 equivalent to the charterage 1,200,000, which the seller agreed to lease the ship of this case to the Gwangju New Stock Co., Ltd. for two months from around December 21, 2007, without reporting in advance to the Minister of Finance and Economy, and determined that such act by Defendant 1 constitutes a violation of the former Foreign Exchange Transactions Act. The court below's aforementioned determination is just and acceptable, and it did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the violation of the former Foreign Exchange Transactions Act.

B. Article 16 of the Criminal Act provides that an act of misunderstanding that one's act does not constitute a crime under the law shall not be punishable only when there is a justifiable ground for misunderstanding. However, it is generally accepted that his act is a crime that is permitted under the law, but it does not constitute a crime in his own special circumstances, and if there is a justifiable reason for misunderstanding, it shall not be punishable. Whether there exists a justifiable reason or not should be determined depending on whether the actor was unable to recognize the illegality of his act as a result of his failure, even though there was a possibility that he would have been able to recognize the illegality of his act if he did not sufficiently endeavor to avoid it, and the degree of effort necessary for recognizing the illegality should be determined differently depending on the situation of his act, the ability of the actor to recognize the identity of the person, and the social group to which the actor belongs (see Supreme Court Decision 2005Do3717, Mar. 24, 2006, etc.).

According to the reasoning of the judgment below, the court below determined that Defendant 1’s aforementioned determination is just and acceptable, and it did not err by misapprehending the legal principles as to the mistake of law under Article 16 of the Criminal Act, even if Defendant 1 reported the payment of the purchase price of the instant ship to the Bank of Korea in the course of reporting the payment of the purchase price of the instant ship to the Bank of Korea via the Nonindicted Party, and there was no evidence to deem that Defendant 1 reported it to the Bank of Korea in accordance with the instruction by the person in charge of the foreign exchange bank. Even if he reported it as it was in accordance with the instruction by the person in charge of the foreign exchange bank, it cannot be said that Defendant 1 was mistaken for misunderstanding that his act was not a crime or there was any justifiable ground for misunderstanding. In light of the aforementioned legal principles

3. Conclusion

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

Justices Park Si-hwan (Presiding Justice)