The meaning of "taking" under Article 2 (1) of the Customs Act, and whether the act of bringing foreign vessels into Korea after acquiring ownership or right to dispose of them in a convenient manner constitutes import under the Customs Act (affirmative)

Article 2 (1) 1 of the Customs Act provides that goods which arrive in the Republic of Korea from a foreign country shall be taken in the form of only one import subject to customs duties. Here, taking in our country means taking goods into the status of domestic goods or free distribution after being de facto released from detention under the Customs Act. Since a ship has special characteristics such as entering or departing from a foreign country, the ship's entry into the territory of the Republic of Korea does not necessarily mean having been imported. However, if a person residing in our country acquires the actual ownership or disposal right of a ship located in a foreign country and another ship is offered for use in our country, it is reasonable to view that the ship falls under the import subject to customs duties in light of the principle of substantial taxation even if the ship has not yet acquired the nationality of the Republic of Korea. In light of the principle of substantial taxation, it is reasonable to deem that the ship falls under the import of the Republic of Korea, having a company formed only in a foreign country by means of convenience and registered the ship as its ownership in the foreign country and offered it to the Republic of Korea as above.

Article 2 (1) of the Customs Act

Supreme Court Decision 93Do2324 delivered on April 12, 1994 (Gong1994Sang, 1545) and Supreme Court Decision 93Do2324 delivered on April 12, 1994 (Gong1994Sang, 1545), Supreme Court Decision 93Do212 delivered on April 26, 1994 (Gong194Sang, 1561), Supreme Court Decision 97Do58 delivered on April 10, 1998 (Gong198Sang, 1395)

Defendant 1 and two others

Prosecutor

Law Firm Barun Law Office, Attorneys Cho Young-han et al.

Seoul High Court Decision 99No2297 delivered on December 29, 1999

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 2 (1) 1 of the Customs Act provides that goods arriving in the Republic of Korea from a foreign country shall be taken in the form of importation subject to customs duties. Here, the term "taking goods into Korea" means the de facto removal of goods from detention under the Customs Act, or entry into a free distribution status. Since a ship has special characteristics such as passage to and from a foreign country, it shall not be deemed that the ship entered the territory of the Republic of Korea. However, if a resident in the Republic of Korea acquires the actual ownership or disposal right of the ship located in a foreign country and the ship is offered for use in the Republic of Korea, it shall be deemed that the ship falls under the actual imposition of customs duties even if the ship has not yet acquired the nationality of the Republic of Korea. It is reasonable in light of the substance over form principle to regard that the ship falls under the importation subject to the imposition of customs duties even if the domestic resident acquired the ship in a foreign country only with documents in the foreign country and registered the ship in the foreign country and announced it to the foreign country as owner in the Republic of Korea.

2. According to the reasoning of the judgment below, the court below held that the ship owner or disposal authority of the ship of this case cannot be determined as Defendant 2 corporation based on all evidence submitted by the prosecutor, and that the ship of this case entered the port of leisure with the engine of the ship of this case due to fire-prevention caused by the loss of the ship of this case and the ship of this case entered the port of leisure to repair the ship of this case, and it cannot be viewed that the defendants entered the port of this case for the purpose of using the ship of this case for repair, and the defendants' act cannot be deemed as an import under Article 180 of the Customs Act, on the ground that it is difficult to view that the ship of this case again repaired the ship of this case and entered the port of this case for the purpose

In addition, if the facts are identical, in light of the above legal principles, Defendants’ act does not constitute a crime of attempted import of smuggling under the Customs Act, a crime of evading customs duties, or an attempt thereof. Thus, the lower court did not consider ex officio whether each of the above crimes was established, and it cannot be said that there was an unson’s error. The allegation in the grounds of appeal as to this point

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Cho Cho-Un (Presiding Justice)