Relation between the crime of evading customs duties under Article 180 of the Customs Act and the crime of unlicensed or removed goods from the bonded storage facility under Article 186-3 of the Customs Act.

Article 186-3 of the Customs Act provides that goods stored in a bonded storage facility or a place where a license for storage is granted shall be deemed to have been filed from the beginning with the intention of filing an export and import declaration, and a punishment is mitigated for the export, entry, or return thereof without a license. In a case where goods stored in a bonded storage facility, etc. have been shipped out without obtaining an import license, the act of evading customs duties shall be deemed to constitute a crime of evading customs duties under Article 180(1) of the Customs Act as long as the purpose of the proviso of Article 180(1) of the Customs Act is to be exempted from liability for the crime of evading customs duties in such a case. Thus, if the goods were sold without undergoing a bonded storage work, the said scrap metal board cannot be deemed to have obtained an import declaration under Article 186-3 of the Customs Act, and it does not constitute a crime of evading customs duties under the proviso of Article 186-3(1) of the Customs Act, and thus, it does not constitute a punishment under the proviso of Article 186(1) of the Customs Act.

Articles 180, 186-3, 69-2, and 137 of the Tax Evasion Act

Supreme Court Decision 84Do782 Decided June 26, 1984 (Article 180(73), Article 654-1 of the Customs Act, Article 32No765Gong735, 1381)

Defendant

Prosecutor

Busan District Court (87 High Court Decision 1031)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

The thirty-five days of detention days prior to the pronouncement of the judgment below shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for four years from the date this judgment becomes final and conclusive.

The sentence of a fine against the accused shall be suspended.

Any 150,440 kilograms (Evidence 1) seized shall be confiscated.

30,677,715 won shall be additionally collected from the defendant.

The first summary of the grounds for appeal by the prosecutor is that the court below separately imposed a penal provision as to the act of taking goods stored in the bonded storage room, etc. out of the customs collector without obtaining an import license under Article 186-3 (1) of the Customs Act, and the interpretation of the current Customs Act is not punishable in accordance with any of the items of Article 180 of the Customs Act. However, the court below found the defendant not guilty of the primary facts charged on the ground that the defendant's primary charges of this case cannot be punished in accordance with any of the items of Article 180 of the Customs Act. However, as in the primary facts charged of this case, if the defendant evades customs duties by intentionally concealing heat scrap metal from the beginning or falsely filing a false declaration as to the fact that it is said that the act falling under Article 186-3 (1) of the Customs Act cannot be applied, and thus, the court below found the defendant not guilty of the primary facts charged. The court below erred by misapprehending the legal principles as to the ancillary facts of this case, which affected the judgment, and the second summary of the judgment below is too unfair.

First of all, the first point of appeal is to examine the facts cited by the court below in recognizing the conjunctive charges, and the defendant could not be punished as a crime of evading customs duties under Article 180 of the Customs Act, since the court below stated that the defendant could not be punished as a crime of evading customs duties under Article 180 of the Customs Act, on the grounds that the defendant's act, such as the above recognition, is provided in Article 186-3 of the Customs Act that punishs non-licensed import, etc. of goods stored in bonded storage facilities, and the above provision is provided in the proviso of Article 180 (1) of the Customs Act.

Article 186-3 and Article 180 of the Customs Act provides that "any person who exports, imports, or returns any goods permitted or approved by the Acts and subordinate statutes in accordance with the provisions of this Act" among the bonded storage facilities shall be punished under the provisions of the Act and subordinate statutes. The purport of the provision is that the first declaration of export and import of the goods stored in the place permitted by the provisions of Article 137 shall be deemed to have been made, and the punishment shall be mitigated. However, if the goods stored in the bonded storage facility or the place permitted by the provisions of Article 186-3 and Article 180 are removed without permission, they shall not be punished under the provisions of Article 180 (1) of the Customs Act for removal of the goods without permission (see Supreme Court Decision 84Do782, Jun. 26, 1984) and the defendant shall not be punished under the provisions of Article 180 (1) of the Customs Act for removal of the goods without permission from the date of the import declaration of the goods.

Furthermore, according to the facts acknowledged by the court below, it can be deemed that the defendant had an intention to dismantle the said scrap metal with another scrap metal mixed with the original scrap metal and separate it from the other scrap metal, and there is no criminal intent to evade customs duties until it is placed in the original scrap metal. However, if the said scrap metal is disposed of and taken out thereafter, it cannot be deemed that there was a criminal intent to evade customs duties equivalent to the difference between the value and the tax rate of the said scrap metal and the scrap metal. In addition, this act of the defendant constitutes a case of evading customs duties by the "illegal method" as stipulated in the main sentence of Article 180 (1) of the Customs Act, and the act of the defendant in this case constitutes a crime of evading customs duties as stipulated in the above provision. Accordingly, the prosecutor's appeal is justified.

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act without examining the remaining grounds for appeal, and it is again decided as follows.

The defendant was a person in charge of sales and accounting as a general manager of the Pyeongtaek-dong ship dismantling yard operated by non-indicted 1 located in Busan-gu (the name of the company omitted) in Busan-gu (the name of the company omitted). On July 8, 1987, the above (the name of the company omitted) company obtained permission for import of 1,826,640 kilograms from Japan's company and 313,820 kilograms of thermal combustion metal market price of 72,935,050 kilograms in combination with the above scrap metal 23th on the 2th day of the same month, and brought them into Busan-do port on the second day of the same month, and brought them into the Busan-dong ship dismantling yard located in Gangseo-dong, Busan-dong, Busan-dong, Busan-dong, and sold them to non-indicted 158,380 kilograms and 25% of customs duties at the rate of 15% on the remaining 30% of customs duties rate of 25% on the 20th day of the same month without undergoing customs clearance.

The summary of the evidence of the above facts charged is the same as the judgment of the court below on the conjunctive facts charged, and this is cited in accordance with Article 369 of the Criminal Procedure Act.

The defendant's act of judgment falls under Article 6 (2) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Crimes"), Article 180 (1) of the Customs Act, and Article 6 (3) of the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Act"), and the defendant has no particular criminal records and circumstances leading to the crime of this case, and there are reasons to be taken into account. Thus, the above imprisonment with prison labor under Articles 53 and 55 (1) 3 of the Criminal Act shall be reduced to two years and six months and a fine to 40,000 won, if the above fine is not paid, the defendant shall be confined to the old house for the period of 10,000 won converted from 10,000 won, and the remaining amount of imprisonment with prison labor or the remaining amount of imprisonment with prison labor for 35 days after the sentence of Article 57 of the Customs Act shall be deferred from 30 days after the sentence of the above Article 98 (2 of the Customs Act).

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

Judges Kim Jong-tae (Presiding Judge)