In cases where a person subject to duty exemption under the Korea-U.S. Administrative Agreement takes over duty-free goods from the person subject to duty exemption, whether the crime of non-licensed import is constituted against the transferee.

In light of the provisions of Articles 8 and 9 of the Act on the Provisional Cases of Customs Duties, etc. in accordance with the Implementation of Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea, if a person who is or was exempted from duty transfers goods exempted from duty in the Republic of Korea without the approval of the head of a customs office in the Republic of Korea, the crime of unlicensed import is established. On the other hand, the transferee is deemed to have imported foreign goods at the time of the transfer, and the crime of evading customs duties is established when he evades customs duties by fraud or other improper means. Thus, the crime of unlicensed import is interpreted to be applied only to the person

Article 8, Article 9 of the Act on Special Cases of the Customs Duties, etc., Article 181, and Article 137 of the Customs Act (Act No. 1976), Article 137 of the Mutual Defense Treaty between the Republic of Korea and the United States of America regarding Facilities and Division and the Status of United States Armed Forces in the Republic of Korea

Defendant 1 and two others

Prosecutor and Defendants

Seoul Criminal Court of the first instance (74Gohap2)

The judgment of the court below is reversed.

Defendants shall be punished by imprisonment for two years and six months, and fine for 12,002,00 won.

When the above fine is not paid, the amount of 30,000 won shall be confined in the workhouse for the period converted into one day.

One hundred and fifty days of detention days prior to the pronouncement of the judgment of the court below shall be included in the above imprisonment of the Defendants: Provided, That the execution of the above imprisonment shall be postponed for five years from the date this judgment becomes final and conclusive.

Articles seized in the attached Form shall be confiscated from the Defendants.

The gist of the grounds for appeal by the prosecutor is that the form of the original judgment is too unreasonable because the method, method, and quantity of the crime of this case are estimated by the defendants, and the summary of the grounds for appeal by the defendant 1 is that the defendant 2 is responsible for the defendant 1 as he refuses to take advantage of several times of the instant case, and he merely refers to the defendant 2's refusal to take account of the theft, and thus there was no participation or execution in the conspiracy of theft, and even though there was no criminal intent for evading customs duties, the court below found the defendant guilty even though he did not have any criminal intent for evading customs duties, it was illegal that the court below erred in misconception of the facts by misleading the judgment of evidence, and even if it is not so, the form of the original judgment is too unreasonable, and the summary of the grounds for appeal by the defendant 3's state appointed defense counsel is unreasonable because the defendant 2's punishment of the original judgment against

The summary of the grounds for appeal by Defendant 2 is that Defendant 3 was the head of the Working Group on Goods Loading and Unloading in the above US military unit and supervised the order, and the defendant was at the end of the year, and the defendant 1 should be examined. In other words, the defendant 1 did not clearly answer, and he did not go back to the truth after completing the fact-finding process, and the defendant did not participate in the conspiracy or execution of larceny. Therefore, it is illegal for the court below to find the defendant guilty by misunderstanding the facts, and even if not, the court below's sentence is unreasonable.

Therefore, as to Defendant 1 and 2’s assertion of mistake of facts and omission of criminal intent, it shall be sufficient to acknowledge the crime of special larceny, which the original judgment was based on the evidence adopted by the court below after lawful examination of evidence. It shall be sufficient to view that the defendants had the intention of evading customs duties as long as they were acquired without permission from the customs house while they knew that the above goods were exempted from customs duties and brought into Korea. Therefore, the above grounds for appeal as to mistake of facts cannot be accepted.

Next, the court below, ex officio, recognized the whole facts charged by the prosecutor, and applied them to special larceny, customs evasion, and non-licensed concurrent crimes which fall under the provisions of the law.

Article 8 and Article 9 of the Act on the Provisional Special Cases of the Customs Duties, etc. in accordance with the Implementation of the Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea, if a person who is or was exempted from customs duties transfers goods to a person who is not exempted from customs duties without obtaining approval from the head of a customs office in the Republic of Korea, such act constitutes an offense of non-licensed import (Article 8) if such person is deemed to have imported foreign goods at the time of transfer and is deemed to have committed an offense of evading customs duties if the person who is or was the transferee of such goods only applies to the person who is the transferor or the person who was the duty exempted from customs duties in the Republic of Korea, and thus, it shall be interpreted that the act of non-licensed import does not constitute a crime of evading customs duties if the person had obtained the remaining goods from the person who was the duty exempted from customs duties in collusion with Nonindicted 3, 4, and 5, which are the United States governing warehouse.

Therefore, the judgment of the court below shall be reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the members thereof shall be decided again.

(Criminal Facts and Summary of Evidence)

The summary of the criminal facts and evidence of the defendant acknowledged as a party member is as follows: the defendant's statement of the facts constituting the crime at the end of the judgment of the court below and the omission of the entry without the customs collector's license is the same as the entry at the original time. Therefore, all of them are cited according to Article 369 of the Criminal Procedure

(Application of Acts and subordinate statutes)

Since the facts of special larceny in the judgment of the Defendants in the form of law are as follows: Article 331 (2) and (1) of the Criminal Act; Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America; Article 9 (1) of the Act on Special Cases of the Use of Facilities and Areas of the United States Armed Forces in the Republic of Korea; Article 6 (2) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 180 of the Customs Act; Article 30 of the Criminal Act provides that one act constitutes several crimes; Article 40 of the Criminal Act provides that the Defendants shall be punished for the crime of evading customs duties as stated in the judgment of the court below; Article 50 of the Criminal Act provides that the Defendants shall be sentenced to imprisonment with prison labor for the same five years; Article 53 (1) of the Criminal Act provides that the Defendants shall be sentenced to imprisonment with prison labor for the preceding five years; Article 60 of the same Act provides that the Defendants shall not be sentenced to imprisonment with prison labor for a limited period of up to 10 years; Article 6060 of the same Act provides that they shall be sentenced to imprisonment.

Of the facts charged, the defendants, as stated in the judgment of the reasons for appeal, that the defendants stolen the goods stated in the separate sheet as stated in the judgment of the customs collector and imported them without a license. As stated in the above judgment of the reasons for appeal, the defendants stolen the goods brought into the Republic of Korea by the United States Armed Forces under the Korea-U.S. Administrative Agreement. Since the defendants did not transfer them to the position of the person subject to duty exemption, such act does not constitute a crime of non-licensed import under Article 9 of the same Act and Article 181 of the Customs Act. Thus, the defendants should be acquitted under Article 325 of the Criminal Procedure Act. However, the above facts charged are prosecuted as a special larceny and customs evasion crime as stated in the judgment of the court below.

It is so decided as per Disposition for the above reasons.

Judges Shin Jae-chul (Presiding Judge)