[1] Whether an act of bringing a foreign vessel into the Republic of Korea after acquiring the foreign vessel's nationality in a convenient way constitutes import under the Customs Act (affirmative)

[2] Whether a duty-free good constitutes a crime of non-reported import under the Customs Act where the good is cleared through customs without due process for import declaration (affirmative)

[3] Whether the confiscation provision under Article 282(2) of the Customs Act constitutes a necessary confiscation (affirmative), and whether the confiscation provision should be forfeited to the goods possessed by the criminal regardless of the owner or possessor’s good faith or bad faith (affirmative)

[1] The case where a domestic resident acquires a foreign ship, thereby creating a company only in a document form in a foreign country with convenience and registration of the ship owned by that company, and subsequently carries it into the country and provides it for use, it constitutes import under the Customs Duties Act.

[2] Where imported through lawful procedures prescribed by the relevant statutes, such as the Customs Act, and customs duties are not imposed, it constitutes a violation of the Customs Act resulting from import without filing an import declaration, even if the imported goods are cleared through customs without filing an import declaration.

[3] The confiscation stipulated in Article 282(2) of the Customs Act is a special provision for confiscation of the general provisions of the Criminal Act, and is a provision for necessary confiscation. In the case of Articles 269(2) and (3) and 274(1)1 of the same Act, as provided in Article 269(2) of the same Act that the goods owned or possessed by the offender are confiscated, it shall be interpreted that the goods possessed by the offender should be confiscated in relation to the offender, regardless of who is the owner's good faith or bad faith, regardless of who is the owner's possession.

[1] Article 2 subparag. 1 and Article 241(1) of the Customs Act / [2] Article 241(1) and Article 269(2) subparag. 1 of the Customs Act / [3] Article 282(2) of the Customs Act

[1] Supreme Court Decision 200Do354 decided May 12, 200 (Gong2000Ha, 1460) / [2] Supreme Court Decision 2000Do3581 decided December 6, 2002 (Gong2003Sang, 406) / [3] Supreme Court Order 92Mo22 decided September 18, 1992 (Gong192, 3178)

Defendant 1 and one other

Defendants

Incheon District Court Decision 2003No980 Delivered on November 27, 2003

All appeals are dismissed.

We examine the grounds of appeal.

1. In a case where a domestic resident acquires a foreign ship only in a document form in a foreign country with convenience, registers the ship owned by that foreign company, and brings it into Korea for use, it constitutes import under the Customs Act (see Supreme Court Decision 2000Do354, May 12, 2000). In a case where a foreign ship is imported through lawful procedures prescribed in the relevant Acts and subordinate statutes, such as the Customs Act, and where a customs clearance is conducted without any lawful import declaration procedure, it constitutes a violation of the Customs Act resulting from an import without declaration (see Supreme Court Decision 200Do3581, Dec. 6, 2002).

According to the facts duly established by the court below and the records, Defendant 1, who purchased the instant vessel from a company located in Japan and created only on a document for convenience storage in the Republic of Korea, shall obtain the nationality of Cambodia, which is a company M. J. J. SHIPING S. DER.L., and entered the instant vessel into Korea and used it for transportation such as active fallens, etc. imported from China, and Defendant 1 shall, when he files an import declaration of the instant vessel with the head of the customs office of the case where the length of which is 30 meters or more, make it impossible to use the instant vessel for transportation such as active falls, etc. imported from China due to the regulations on navigation zones prescribed by the Ship Safety Act (limited to vessels which are 30 meters or more for navigation in coastal areas) and did not file such import declaration. Accordingly, the act of Defendant 1 shall be clear that it constitutes a violation of the Customs Act due to non-reported import, and its criminal intent shall also be recognized.

In the same purport, the court below is just in finding the defendants guilty of violating the Customs Act due to the non-reported import of the ship of this case, and there is no error in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles as to the violation of the Customs Act due to non-reported import.

2. The confiscation stipulated in Article 282 (2) of the Customs Act is a special provision for confiscation of the general provisions of the Criminal Act, and is a provision for necessary confiscation. In the case of Articles 269 (2) and (3) and 274 (1) 1 of the same Act, as provided in the same provision that goods owned or possessed by a criminal are confiscated, it shall be interpreted that the goods possessed by the criminal should be confiscated in relation to the criminal who is tried on trial without being in bad faith regardless of who is the owner's possession (see Supreme Court Order 92Mo22 delivered on September 18, 192). The records reveal that the defendants occupied the ship of this case. Thus, the ship of this case should be confiscated from the defendants, who are criminal offenders of the crime of violating the Customs Act resulting from the non-reported import of the ship of this case, between whom the ship of this case belongs.

Although the reasoning of this part of the judgment of the court below is somewhat inappropriate, the conclusion that maintained the judgment of the court of first instance confiscated by the defendants is justifiable. Thus, it cannot be deemed that the judgment of the court below erred by misapprehending the rules of evidence or by misapprehending the legal principles on confiscation under Article 282 (2) of the Customs Act.

3. As to the judgment of the court of first instance, the Defendants failed to make mistake of facts or misapprehension of legal principles on the violation of the Customs Act due to the non-import of the vessel of this case as the grounds for appeal, and in other cases, the Defendants cannot assert as the grounds for appeal any mistake of facts or misapprehension of legal principles on the remainder of the violation of the Customs Act other than the violation of the Customs Act due to the non-import of the vessel of this case. Furthermore, in light of the records, the evidence of the judgment of the court of first instance maintained by the court below, the court below is justified in finding the Defendants guilty all of the remaining violation of the Customs Act other than the violation of the Customs Act due to the non-import of the vessel of this case, and there is no error in the misapprehension of legal principles as alleged in the grounds for appeal.

4. In this case where the suspended sentence of imprisonment or a fine is imposed on the Defendants, the grounds that the sentencing of the lower court is excessive shall not be a legitimate ground for appeal.

5. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)