[1] The distinction between non-licensed export and import crimes under Article 181 of the former Customs Act and illegal export and import crimes under Article 181-2 subparagraph 1 of the former Customs Act

[2] The purpose of type approval by the Administrator of Small and Medium Business Administration

[3] Whether a license for import is void automatically where a type approval was issued to a public official that does not coincide with the rated voltage of the goods to be actually imported and the import license was issued

[1] Article 181 of the former Customs Act (amended by Act No. 4982 of Dec. 6, 1995) provides that "the export, import, or return of goods without obtaining a license under Article 137" as an element of an offense of export or import without obtaining a license. The export or import license under Article 137 (1) of the former Customs Act is a disposition having the nature of an import or export license to cancel the general prohibition of export or import of goods brought into a bonded area by the head of the relevant customs office if the export or import declaration is filed. Since the subject of such a license is the goods stated in the export declaration or the similar goods. Thus, for the establishment of an offense of export or import without obtaining a license under Article 181 of the former Customs Act, it is established when the export or import declaration was made by making a false entry of other goods which are not identical to the goods actually brought into the bonded area and the goods entered in the import declaration form a license, recommendation, certification, or other unlawful means to constitute the import declaration under Article 181 of the former Customs Act.

[2] The Minister of Trade, Industry and Energy's type approval under Article 9 of the Electric Appliances Safety Control Act is aimed at examining which specific electrical appliances meet the technical standards under the Electric Appliances Safety Control Act, and thus, it shall not affect the judgment on the identity of the goods.

[3] Even if an import license was issued with a type approval form that does not coincide with the rated voltage of the electric shock machine that actually intended to import to obtain an import license by unlawful means and attached it to the import report, and even if the import license was granted upon illegal solicitation to a customs official with the knowledge of such content, such fact alone cannot be deemed as a significant and apparent defect and thus the import license becomes void as a matter of course.

[1] Articles 137, 181, and 181-2 of the former Customs Act (amended by Act No. 4982 of Dec. 6, 1995) / [2] Article 9 of the Electric Appliances Safety Control Act, Article 26-2 of the Enforcement Rule of the Electric Appliances Safety Control Act / [3] Article 137 of the former Customs Act (amended by Act No. 4982 of Dec. 6, 1995)

[1] [3] Supreme Court Decision 89Do149 delivered on March 28, 1989 (Gong1989, 711) / [1] Supreme Court en banc Decision 83Do2193 delivered on December 13, 1983 (Gong1984, 219), Supreme Court Decision 92Do2685 delivered on February 9, 1993 (Gong193Sang, 1028), Supreme Court Decision 93Do1165 delivered on August 13, 1993 (Gong193Ha, 2485)

Defendant 1 and one other

Defendants

Attorney Jeon Byung-hoon

Seoul High Court Decision 95No885 delivered on August 18, 1995

All the judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal by the state appointed defense counsel and the Defendants are also examined.

1. The summary of the facts charged in this case against Defendant 1 was found to have been aware that, on October 31, 1994, the same Defendant had intended to clear 300 governance governance of the Pakistan trademark that he had to import from Singapore, but the voltage type was a multiple-use type that can be converted from 110 V to 240 V, and thus, it cannot obtain the type approval of the Administrator of the Small and Medium Business Administration necessary for obtaining the import license. The court below found that Defendant 1 had already obtained the type approval as if he had already obtained the type approval, made a false import declaration as if he had already received the type approval 220 V corporate governance, which is a public official in charge of customs clearance of the Incheon Customs, and received the import license for the above combined-use corporate governance 220 V in response to the Defendant, who was the public official in charge of customs clearance of the Incheon Customs, and then imported it without the license of the head of Incheon Customs Office. The summary of the facts charged in this case against Defendant 2 constitutes the above act as to Defendant 181 as to the above.

2. Article 181 of the Customs Act provides that "the export, import, or return of goods without obtaining a license under Article 137 of the Customs Act" is an element of an offense of export and import without obtaining a license. Article 137 (1) of the Customs Act provides that if an export and import declaration is filed, a license for import and export of goods entered in a bonded area by the customs collector is a disposition having the nature of an import and import license to release the general prohibition of export and import of goods brought in to the bonded area by the customs collector to the person who has declared the export and import, and the subject of the license is recognized as identical to the goods entered in the export declaration or other goods recognized as identical to them. Thus, for the establishment of an offense of export and import without a license under Article 181 of the Customs Act, it shall be established where the import declaration person has obtained a license with a false entry of other goods which are not identical to the goods actually entered in the bonded area and cleared the goods in the bonded area (see Supreme Court Decision 83Do2193 delivered on December 13, 1983).

According to the records, even if Defendant 1 obtained the approval of import under Article 19(1) of the Foreign Trade Act (see the import approval attached to No. 221 of investigation records) on the condition that the code of the HS’s no. 21 May 21, 1994 set forth in the HS’s no. 8527.31-1300, “it shall obtain the approval of import” (see, e.g., the import approval attached to No. 221 of investigation records) on the condition that Defendant 1 obtained the approval of import under Article 19(1) of the Foreign Trade Act, and as such, it cannot obtain the approval of the Minister of Trade, Industry and Energy since the corporate governance in which he intends to import is combined with 110 V to 240 volts, the first type approval of the first type approval form after submitting it to the Industrial Promotion Agency as a sample for the import approval of this case, Defendant 1 could not obtain the same approval of import under Article 19(1) of the same Act.

3. (1) According to the records, Defendant 1 stated "(1) name and standard column of the import declaration submitted by it to the Incheon Customs Office for obtaining an import license" in the item number column of the HS and stated "85271-1300" in the import declaration as stated in the above import declaration, and the voltage was not stated in the import declaration because it was not certain to indicate it. The above Defendant obtained an import license as stated in the import declaration, and the goods which were brought into the bonded area and cleared customs are identical to the indication of the goods stated in the import declaration and the import declaration letter. Thus, the goods that were the object of the import license and the actual goods cleared through customs shall be deemed the same goods.

(2) Meanwhile, Article 9(3) of the Electric Appliances Safety Control Act provides that a person who intends to import and sell Class 1 electric appliances shall obtain type approval for the type of the first-class electric appliances by type classification, by manufacturer classification, and Article 9(4) of the same Act provides that the Minister of Trade, Industry and Energy shall grant type approval only when the electric appliances meet the technical standards as determined by the Minister of Trade, Industry and Energy. According to Article 9(3) and (4) of the Electric Appliances Safety Control Act and Article 26-2(1)4 of the Enforcement Rule of the Electric Appliances Safety Control Act, a notice issued by the Administrator of Small and Medium Business Administration under each of the above provisions of Article 9(1) of the Electric Appliances Safety Control Act and Article 26-2(1)4 of the Enforcement Rule of the Electric Appliances Safety Control Act, “the operating guidelines for the technical standards for the second-class electric shock machines with a fixed voltage of 110 V and 220 V combined electric appliances cannot obtain type approval from January 1, 1994 and the existing type approval becomes void.

(3) Therefore, it shall be deemed that the goods cleared by the Defendant were subject to the import license of this case, and even if Defendant 1 obtained a type approval form that does not coincide with the rated voltage of the electric shock machine to be actually imported for the purpose of obtaining the import license by unlawful means, and attached it to the import report, and even if Defendant 1 received an illegal solicitation and obtained an import license, such fact alone cannot be deemed as a significant and obvious defect and thus the import license becomes void as a matter of course.

(4) If so, it can be seen that Defendant 1’s act constitutes a crime of illegal import under Article 181-2 subparag. 1 of the Customs Act, but it cannot be deemed that the act constitutes a crime of unauthorized Import under Article 181 of the Customs Act. However, the court below erred in the misapprehension of legal principles as to the crime of unauthorized Import, and there is a reason to point this out.

4. Therefore, the judgment of the court below which found the Defendants guilty of the crime of non-licensed import cannot be reversed because it cannot be maintained as it is. Since the above criminal facts against Defendant 1 and the crime of offering of a bribe which the court below found the Defendants guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, the whole judgment of the court below against the Defendants is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent

Justices Jeong Jong-ho (Presiding Justice)