(a) In the case of the introduction of a ship by convenience loading, whether the conclusion of the ownership of the defendant differs depending on whether the payment of the purchase price of the ship has been made in full or whether the ship has taken the form of the ship introduced or used;

(b)whether the act of importing a ship, the import of which is not allowed, by convenience loading and falsely reported, has evaded customs duties by deceit or other unlawful means, and whether there is a criminal intent to evade customs duties in this case;

C. Whether confiscation of a ship in violation of the Customs Act violates the Constitution

A. The defendant purchased a ship from a Japanese company and paid the price for the ship in return for the profit from the operation of the ship, and registered as the owner of the Pakistan company, but in reality, the company is not only the defendant's representative, but also the company with no office or resident source, and all documents related to the ship are held by the defendant and the defendant is also the owner of the ship in accordance with the certificate of maritime ordinary trade permit. However, if the defendant is the owner of the ship by the method of convenience, and the formal nationality of the defendant becomes the owner of the ship, the ship of this case shall be deemed to be the owner of the ship of this case. The above conclusion shall not depend on whether the ship was fully paid the price for the ship or whether the introduction of the ship was made in the form of charter.

(b)an act of importing a ship, the importation of which is not permitted by the method of convenience storage, even though it is not unlawful, constitutes an act of evading customs duties by deceit or other wrongful means stipulated in Article 180(1) of the Customs Act, and a crime of evading customs duties is also committed insofar as the act of importing a ship, the importation of which is subject to the imposition of customs duties, without obtaining an import license, is recognized as an act of evading customs duties.

C. If the import of a ship using a method of convenience constitutes a crime of tariff evasion and a ship is subject to confiscation, it cannot be said that the confiscation of the ship is in violation of the constitutional provisions on the limitation of Defendant’s freedom of business to excessive extent and the guarantee of property rights.

(a) Article 2(1)(b) of the Customs Act; Article 180(1)(c) of the same Act; Article 183 of the same Act; Articles 15 and 23(1) of the Constitution;

A. (B) Supreme Court Decision 93Do2324 delivered on April 12, 1994 (Gong1994Sang, 1545). Supreme Court Decision 82Nu328 delivered on October 11, 1983 (Gong1983, 1666). Supreme Court Decision 84Do782 delivered on June 26, 1984 (Gong1984, 1381) (Gong1381 delivered on March 27, 1990) 93Do689 delivered on May 25, 1993

Defendant

Prosecutor

Busan High Court Decision 91No1359 delivered on December 30, 1992

The judgment below is reversed, and the case is remanded to Busan High Court.

We examine the prosecutor's grounds of appeal.

1. Summary of the reasoning of the judgment below

A. The facts established by the court below are as follows.

In other words, the defendant, around August 1985, purchased and operated one of the middle-class high-school vessels from Huyang City, the president of the New Airport Holdings (hereinafter only referred to as Japanese companies) located in Japan, and sold it around August 1987. In order to own the above vessels, the defendant established a company at around March 1985 (hereinafter referred to as "Pama company") with the location of Pama City. The president in the corporate register of the above Pama company was the defendant, and the vice president was the defendant, but the defendant had been permitted to make an overseas investment from the Bank of Korea in the establishment of the above Pama company, and the above Pama company was a company with documents without the actual office or main office.

After that, the Defendant received a recommendation from the Yan City City of the Yandong to purchase and operate the instant vessel built in Japan in 1975, and entered into a sales contract with the above Japanese company on June 23, 1990, on which the purchase and sale contract on the instant vessel was concluded with the above Japanese company, and the payment was agreed to pay for the profits the Defendant acquired by the operation of the said vessel. However, according to the notification of the Ministry of Trade, Industry and Energy and the Ministry of Trade, Industry and Energy pursuant to the Foreign Trade Act and the above, the import of the instant vessel for more than 10 years was not allowed.

On September 5, 1990, the defendant, as stated in the facts charged in the above contract, entered into Busan on October 5, 1990 and was detained on the 16th of the same month on the ground that the defendant illegally introduced a high-speed fishing vessel prohibited from import from Busan customs office, and was detained on the 16th of the same month, the defendant possessed a permit to transfer the vessel of this case, an export permit and an export permit, and a vessel nationality certificate, etc., and the ship owner was also the defendant in accordance with the international trade vessel's license, and the ship owner was also the defendant in accordance with the international trade vessel's international trade vessel's license, and the ship owner was also the defendant in accordance with the international trade vessel's domicile under the international trade vessel's license.

The defendant has repaired the above vessel by inserting a gold of seven million won, and the above vessel has been operated on July 3, 1991 for the purpose of the transportation of the giveer from the port of Cheongdo in China to the port of Cheongdo in China.

B. Furthermore, the court below found the Defendant not guilty on the grounds as follows, in lieu of the facts charged of the instant case where the Defendant evaded KRW 2,698,50, respectively, customs duties and defense taxes on the amount of KRW 166,317,410 in the market price of the said vessel by deceit or other unlawful means by reporting falsely as if the said vessel entered the port for repair purposes.

In other words, according to Article 2 (1) of the Customs Act, the term "import" means taking in Korea goods arriving in Korea from a foreign country. The term "humanization" refers to taking foreign goods out of the detention under the Customs Act and free distribution status as domestic goods. In particular, in the case of an ocean-going ship, it has international characteristics, regardless of the domestic shipping market, and it is unique in that the defendant has engaged in activities in international routes and international shipping markets, and if the defendant has a convenience in the case of the ship of this case, it cannot be deemed that the defendant intended to import the ship for free circulation or use in the domestic shipping market. Rather, it is reasonable to view that the defendant purchased the ship of this case from the above Japanese company or purchased it from the above Japanese shipbuilding station and received it from the above Japanese crew to board the ship, and it is more reasonable to view that the defendant had acquired ownership before the payment of the price of the ship was made, and it cannot be said that the defendant was aware that he had paid the customs duty imposed on the goods of this case without the entry into the port of this case.

In addition, the so-called "conform of convenience" system is recognized as international practices to secure the international competitiveness of the ship, and the convenience security system used by many small and medium shipping enterprises as the convenience law in order to secure the international competitiveness of the ship should not be punished by considering that it itself is an unlawful method or an illegal method that has no social reasonableness. When applying the crime of evading customs duties to the ship, it is necessary to confiscate the ship or to additionally collect the amount equivalent to the domestic wholesale price of the ship, and thus, the punishment of the defendant in the same case as the case in this case is likely to be exempted from criticism that excessive restriction of freedom or freedom of disposal and freedom of business in relation to the guarantee of property rights under the Constitution, and ultimately, even if the defendant takes a convenient method in the purchase of the ship in this case, it cannot be deemed that the so-called fraudulent or other unlawful method that interferes with social reasonableness under our legal system has been used.

2. Determination of party members

A. However, the ship of this case is the freezing of 79.9 tons built in Japan in 1975, and it is clear that at the time of this case, the ship of this case, the age of which is not less than 10 years, was not allowed to be imported;

B. According to the court below's determination, the defendant purchased the ship of this case from a Japanese company and paid the price for the ship in return for the profit from the operation of the ship. The ship of this case was registered as the owner of the ship of Pakistan with the nationality of Pakistan, but in fact, the above company is not only the representative of the defendant, but also the above company is merely the company on the documents that do not have any office or presence at all documents, and all documents related to the above ship are held by the defendant under the permit for maritime trade. The above defendant is the owner of the above ship. However, if the defendant is deemed as the owner of the above ship by the method of convenience, its formal nationality is the owner of the above ship, and if so, the above ship of this case shall be deemed as the actual ownership of the defendant, and if it is true, the above conclusion shall not be affected (see Supreme Court Decision 82Nu328, Oct. 11, 1983).

C. According to the judgment of the court below and the records, it is not difficult to recognize the fact that, while importing the ship of this case in which the defendant is practically unable to obtain import permission in a normal way, the ship of this case, which is owned by the defendant, was falsely reported as if the ship of this case was entered into a mere repair purpose. Thus, even if it is not illegal in the original convenience value itself, the act of importing the ship of this case, the import of which is not allowed by the convenience value method, and filing a false report constitutes evading customs duties by fraud or other wrongful means under Article 180(1) of the Customs Act (see Supreme Court Decision 89Do2587 delivered on March 27, 1990). Since it is recognized that the goods subject to the imposition of customs duties are imported without obtaining an import license, it shall be deemed that the criminal intent of tax evasion exists, and it shall not be deemed that the defendant accepted the ship of this case between China and Japan, and it shall not be deemed that the defendant accepted the ship of this case.

In addition, if the import of a ship using the defendant's method of convenience falls under the crime of tariff evasion and the ship is subject to confiscation, it cannot be said that the confiscation of the ship is in violation of the Constitution of the Republic of Korea to excessively limit the defendant's freedom of business and to guarantee property rights.

3. Conclusion

Therefore, the judgment of the court below is erroneous by misapprehending the legal principles on revenue under the Customs Act or the legal principles on the crime of evading customs duties, and the arguments pointing this out are with merit, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ansan-man (Presiding Justice)