A. The meaning and nature of the "tariff-off" under Article 2 (6) of the Act on Special Cases concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export

(b) Whether an act of offsetting customs duties by improper means constitutes a crime of unlawfully reducing or exempting customs duties under Article 180(2) of the Customs Act;

(c) In a case of violation of Article 6 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, whether a corporation may be punished under Article 180 of the Customs Act

(d) Article 197 of the Customs Act, the purposes of which are immunity provisions;

(e) Where mitigation of self-denunciation is applied to the criminal responsibility of a corporation under the joint penal provisions;

A. 'Offset of customs duties' under Article 2(6) of the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export refers to the amount of customs duties imposed on raw materials for export on the condition that the raw materials for export should be re-exported for the purpose of export, etc. on the condition that they should be collected within a specified period of time, and the customs duties to be refunded if the raw materials for export were supplied for the purpose of export, etc. under the above conditions, without being deferred from the payment of customs duties, etc., for which the notice of tax payment has been postponed, and the customs duties to be refunded if the raw materials for export were paid. This constitutes an exemption of customs duties

B. The act of unlawfully receiving a set-off of customs duties in a way that pretends as if there were actual exports even if there were no actual exports by using the export paper attached to the offset application, which had already been used, constitutes a crime of denying or exempting customs duties under Article 180(2) of the Customs Act.

C. Article 6(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes is a provision on aggravated punishment where the evaded customs duty amount is at least 20 million won among violations of Article 180 of the Customs Act, and it is natural to punish a corporation by Article 180 of the Customs Act, which is a general provision, unless there is a joint penal provision for the same corporation under Article 196 of the Customs Act.

D. According to Article 197 of the Customs Act, even if a corporation is punished by Article 196 of the same Act, if it proves that the corporation did not prevent the act of violation as its employee or officer, the corporation is exempted from liability, which is the purpose of imposing the burden of proof on the corporation, which is to force the presumption of negligence on the business entity by imposing the burden of proof even if it is not strict liability on the corporation.

(e) In a case where a corporation is punished by joint penal provisions for committing a violation by an employee or employee of a corporation, the corporation is limited to the case where the director or other representative of the corporation surrenders himself to a government agency responsible for investigation in order to apply the provisions of Article 52(1) of the Criminal Act concerning mitigation of self-denunciation to a corporation, and the case where the employee or employee who committed the violation voluntarily surrenders to a government agency with the responsibility

(a) Article 2(6) of the Act on Special Cases concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export; Article 180 of the Customs Act; Article 6(2)(d) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 196 of the Customs Act; Article 197 of the Customs Act;

D. Supreme Court Decision 80Do138 delivered on March 11, 1980 (Gong1980, 12717)

Defendant corporation

Defendant

Attorney Lee Jong-chul et al.

Daejeon High Court Decision 94No675 delivered on January 20, 1995

The appeal is dismissed.

We examine the grounds of appeal.

1. On the first ground for appeal:

"Offset" of customs duties prescribed in Article 2 (6) of the Act on Special Cases concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export means that when a person who imports raw materials for export and is designated by the Commissioner of the Korea Customs Service imports raw materials for export again for the purpose of export, and has received a deferment of duty payment from the head of a customs office with respect to customs duties to be collected on raw materials for export subject to the condition that the raw materials for export should be supplied for the purpose of export, etc. within a certain period of time, the customs duties, etc. to be refunded if the raw materials for export were paid without being deferred for the payment of customs duties, etc. under the above condition, which constitutes an exemption of customs duties, as a system for the confirmation

In the same purport, the court below's decision that held the so-called offset against customs duties under Article 180 (2) of the Customs Act is just, and there is no error in the misapprehension of legal principles, such as the theory of lawsuit, as otherwise alleged in the ground for appeal. It does not err in the misapprehension of legal principles, as otherwise alleged in the ground for appeal.

2. On the second ground for appeal:

Article 6 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes is an aggravated provision for a case where the evaded customs duty amount is at least 20 million won among violations of Article 180 of the Customs Act. Thus, unless there is a joint provision for corporations like Article 196 of the Customs Act, the above Act shall not be subject to aggravated punishment. However, it is natural to punish a corporation by Article 180 of the Customs Act, which is a general provision.

The theory of the lawsuit is not accepted as it criticizes the original court that applied Article 180 of the Customs Act to the defendant company. There is no reason for the argument.

3. On the third ground for appeal

In light of the records, the court below's finding of facts that the act of offsetting the customs duties of this case by the defendant at the court below was deemed to have been conducted by the active or passive implied consent of the non-indicted, and there is no violation of the rules of evidence or incomplete deliberation such as the theory of lawsuit.

According to Article 197 of the Customs Act, even if a corporation is punished pursuant to Article 196 of the same Act, if it proves that there was no attempt to prevent the violation of its employee or officer as the principal, it shall be exempted. This purpose is to impose the burden of proof on the corporation even if it is not strict liability (see Supreme Court Decision 80Do130, Mar. 11, 1980) to force the presumption of negligence on the business entity by imposing the burden of proof (see Supreme Court Decision 80Do130, Mar. 11, 1980). Thus, the court below held that the fact that the court below committed the act of wrongful offsetting in this case without notifying the non-indicted who is the actual representative of the defendant company, does not fall under the case of grounds for exemption under the provision of the same Act. There is no error in the misapprehension of legal principles, such as the theory of lawsuit.

4. On the fourth ground for appeal:

In a case where a corporation is punished by joint penal provisions for committing a violation, the directors or other representatives of the corporation shall apply the provisions of Article 52 (1) of the Criminal Act concerning mitigation of self-denunciation to the corporation, only when the directors or other representatives of the corporation voluntarily surrenders to the government agencies who have the responsibility for investigation, and the fact that the employees or employees who have committed the violation voluntarily surrenders to the government agencies that have the responsibility for investigation shall not be able to reduce the punishment pursuant to the above provisions. The decision of the court below to the same purport is proper

5. On the fifth ground for appeal:

In a case where a fine is imposed on a person who violates the penal provisions prescribed in the Customs Act, the application of Article 38(1)2 of the Criminal Act is excluded in accordance with Article 194 of the Customs Act, so the imposition of a fine shall be made for each of the crimes for which judgment has not become final and conclusive, as well as the disposition of the judgment does not necessarily require the imposition of a fine for each of the crimes. However, since each of the so-called crimes in the judgment of the court below against the defendant company is determined by a fine for each of the crimes, and the decision of a fine equivalent to the sum of the fines determined in the order is justifiable. There is no reason to argue that the judgment of the court below was erroneous

6. On the sixth ground for appeal:

The court below is just in holding that the first instance court's sentence against the defendant company was a fine of KRW 377,600,000, and there is no error of law as pointed out in the theory of lawsuit. The argument is without merit.

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

Justices Lee Jae-soo (Presiding Justice)