Application for 208 early 117 unconstitutionality Proposal

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Busan Location

Representative Director ○ Kim0

Doing Law Firm, Attorneys Park Young-chul

Busan High Court Decision 2008No18 Violation of the Customs Act

March 27, 2008

The motion to propose the unconstitutionality of this case is dismissed.

The adjudication on the constitutionality of Article 282(4) of the Customs Act shall be presented to the Constitutional Court.

1. Legal provisions applicable to the application and related provisions;

The contents of Article 282(4) and related provisions of the Customs Act, which are the subject of the motion for unconstitutionality of the case, are as follows.

Customs Act Article 282 (Confiscation and Additional Collection)

(1) In cases falling under Article 269 (1), the goods concerned shall be forfeited.

(2) In cases falling under Article 269 (2) and (3) or 274 (1) 1, the possession or possession of any offender shall be carried out.

(1) The goods concerned shall be forfeited: Provided, That in the case of Article 269(2), the goods falling under any of the following subparagraphs:

Goods shall be excluded.

1. Foreign goods shipped into a bonded area referred to in Article 154 after reporting in accordance with Article 157; and

2. A foreign country stored in a place other than a bonded area with permission from the head of a customs office in accordance with Article 156.

Goods;

(3) When it is impossible to confiscate all or part of the goods to be confiscated under paragraphs (1) and (2) above.

an amount equivalent to the domestic wholesale price of the goods that cannot be forfeited at the time of the offense from the offender.

The penalty shall be collected additionally.

(4) In the application of paragraphs (1) through (3), the person referred to in Article 279 and the corporation referred to in Article 280 shall apply.

corporation shall be deemed an offender.

Article 280 (Punishment of a Juristic Person)

Any officer, employee or employee of a corporation in violation of the penal provisions of this Act in connection with the business of the corporation

When an act is committed, a corporation shall also be punished in addition to punishing the offender: Provided, That a corporation falling under Article 277 shall be punished.

this provision shall not apply.

Article 48 (Confiscation and Additional Collection)

(1) Any person other than a criminal who does not belong to the criminal or who knowingly acquires it after the crime is committed.

all or part of the following articles may be confiscated:

1. Articles which have been provided or intended to be provided for criminal acts;

2. A thing produced by or acquired by means of criminal conduct; and

3. Articles acquired in return for the preceding two years.

(2) If it is impossible to confiscate the goods mentioned in the preceding paragraph, the value thereof shall be collected additionally.

(3) Where part of any special media records or securities, such as documents, drawing and painting, fall under the confiscation.

Part shall be discarded.

2. Summary of reasons for the application;

Confiscation is an additional property type with the aim to prevent a crime from repeating or to deprive the property related to the crime for the purpose of prohibiting the benefit of the crime. The property related to the criminal act refers to the property used in or obtained by the criminal act with the intention of the crime. Therefore, in principle, the subject of confiscation is limited to the property intentionally used in the criminal act or the property acquired by the criminal act.

On the other hand, the applicant's liability for a violation of the Customs Act is not due to the applicant's conspiracy of, or participation in, the violation of the Customs Act, but due to the applicant's gross negligence of management and reduction of, the management of the employee of the applicant. Thus, the applicant's violation of the Customs Act shall be limited to negligence. Therefore, even if the applicant's employee committed a violation of the Customs Act with confiscation or collection of additional penalty, the forfeiture or collection of additional penalty shall not be added to the applicant.

However, Article 282 (4) of the Customs Act provides that the scope of liability shall be the same as that of confiscation and collection, instead of asking for intentional crime or negligent crime. This also goes against the above principle that it is impossible to confiscate in the case of negligent crime, as well as the principle of proportionality of responsibility and punishment.

Therefore, the above provision of the Customs Act is in violation of Article 37 (2) of the Constitution, which regulates the statutory penalty in proportion to the degree of responsibility and the principle of excessive prohibition.

3. Determination

A. The premise of the judgment

Inasmuch as the conclusion on additional collection is different depending on whether the provision of the law subject to the application becomes invalid or not, the determination of the unconstitutionality of the provision of the law subject to the application is the premise of the judgment of the above case.

B. Determination as to the unconstitutionality

(1) When an officer, employee, or employee of a corporation commits an act in violation of the penal provisions prescribed in the Customs Act with respect to the business of the corporation, the provisions of Article 280 of the Customs Act, which provides that the corporation shall be punished in addition to punishing the offender, except for the cases falling under Article 277 of the Customs Act. In the case of a corporation, the corporation shall be punished in addition to punishing the offender, who is an employee, etc., as well as punishing the corporation. In this case, the corporation shall be presumed to have negligence even if it is not strict liability, and the burden of proof is also imposed on the corporation to prevent the invalidation of the joint penal provisions (see, e.g., Supreme Court Decision 201Do595, Jan. 25, 20

(2) Meanwhile, the provision on confiscation and collection under the Customs Act is a special provision on confiscation and collection under the general provisions of the Criminal Act, which are the general provisions of the Customs Act, and the above confiscation and collection under the Customs Act are included in the necessary confiscation and collection. Meanwhile, according to the legislative purpose and purport of the Customs Act, the destruction of the public goods or the purpose of the punishment can also be seen as a criminal policy aspect that aims to thoroughly prevent the serious and preventive violation of the Customs Act (see, e.g., Supreme Court en banc Decision 73Do2625, Jun. 22, 1976; Supreme Court Decision 91Do1192, Sept. 13, 191).

(3) As seen above, either the principal or the legal person punished by the joint penal provisions of the Customs Act is naturally premised on the offender's negligence. Confiscation and additional collection under the Customs Act are not limited to the deprivation of unjust profits by the special provisions of the Criminal Act, but has a punitive character as a sanction against the offender. Meanwhile, the Customs Act provides that a person who acquired, transferred, transported, stored, or appraised the smuggling shall be sentenced to confiscation and additional collection as necessary. As such, the joint penal provisions of Article 282 of the Customs Act does not limit the scope of the legal person subject to confiscation and additional collection to the juristic person who is an employee's smuggling, and it appears that the scope of the legal person subject to confiscation and additional collection should be included in the juristic person who has become an employee's agent due to the smuggling of the employee, and the thorough imposition and additional collection under the Customs Act are not in violation of the principle of proportionality as well as the principle of proportionality under Article 282 of the Customs Act.

4. Conclusion

Therefore, the applicant's motion for proposal of the unconstitutionality of this case is dismissed as it is without merit, and it is so decided as per Disposition.

March 27, 2008

Maternity Only (Presiding Judge)

Lee Young-young

Type 1