[1] Whether the crime of free import under the Customs Act is established in a case where the owner imports goods without filing an import declaration and without having the employees go through customs inspection in the manner of leading each owner to go through customs inspection in the quantity of personal effects of each owner (affirmative)

[2] The number of crimes of non-reported import under the Customs Act and the specific method of facts charged in a case where several acts of non-reported import are prosecuted as concurrent crimes

[3] The number of crimes of acquiring and keeping smugglings under the Customs Act, and the specific method of the facts charged in the case where the act of acquiring and keeping several smugglings is prosecuted as concurrent crimes

[1] The import of goods by the owner of the goods through the method of customs clearance in order to hire many persons without filing an import declaration while importing the goods and enable them to do so in disguise their personal effects constitutes a crime of non-reported import under Article 269 (2) 1 of the Customs Act.

[2] The crime of non-reported import under Article 269 (2) 1 of the Customs Act is the legal interest of securing fair customs duties on imported goods. Thus, in the case of importing imported goods without filing a declaration, one crime is established at each time of import since the legal interest of securing legitimate customs duties on the imported goods is infringed and the elements of the crime are separately satisfied at each time of import. In the case where several non-reported import acts are charged as concurrent crimes, the facts charged should be stated in order to specify the facts by specifying the date, time, place and method of each act.

[3] When a crime of acquiring or keeping smuggling pursuant to Article 274 (1) 1 of the Customs Act is established for each act of acquisition or custody, one crime is established for each act of acquisition or custody, and several acts of acquiring or keeping smuggling are prosecuted for concurrent crimes, the facts charged shall be stated for each act in order to specify the facts by specifying the date, time, place, and method.

[1] Article 269(2)1 of the Customs Act / [2] Article 269(2)1 of the Customs Act, Article 254(4) of the Criminal Procedure Act / [3] Article 274(1)1 of the Customs Act, Article 254(4) of the Criminal Procedure Act

[1] Supreme Court Decision 2001Do2820 Decided August 27, 2002 / [2] Supreme Court Decision 2000Do1338 Decided May 26, 200 (Gong2000Ha, 1581) Supreme Court Decision 99Do782 Decided November 10, 200 (Gong2001Sang, 74) Supreme Court Decision 2000Do2903 Decided January 30, 2001 / [3] Supreme Court Decision 98Do1480 Decided January 26, 199

Defendant 1 and one other

Defendants and Prosecutor

Attorney Kim Jae- Jae

Seoul Central District Court Decision 2004No1346 delivered on June 11, 2004

The part of the judgment of the court below against Defendant 2 is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court. The prosecutor's appeal against Defendant 1, such as Defendant 1, is dismissed.

1. Judgment on the Defendants’ grounds of appeal

The import of goods by the owner of goods without filing an import declaration and having many persons employ the goods in the form of customs clearance in the quantity of their personal effects, shall be deemed to constitute an offense of non-declaration under Article 269(2)1 of the Customs Act (see Supreme Court Decision 2001Do2820, Aug. 27, 2002, etc.).

The court below's decision is justified in accordance with the above legal principles, and it is not erroneous in the misapprehension of legal principles as to the crime of non-reported import, and there is no error in the misapprehension of legal principles as to non-reported import. The court below's decision did not err in the misapprehension of legal principles as to non-reported import.

In addition, examining the reasoning of the judgment below in light of the records, it is proper that the court below calculated the additional collection amount against Defendant 1 as KRW 16.7 million, and there is no error of law such as misunderstanding of legal principles as otherwise alleged in the ground of appeal.

In addition, the court below decided that Defendant 2 engaged in the mail order business without reporting it to the competent Mayor/Do governor in collusion with Defendant 1 by taking account of the adopted evidence, and recognized that Defendant 2 engaged in the mail order business without reporting it to the competent Mayor/Do governor. In light of the records, it is just and acceptable to take such measures by the court below, and there is no error in the misapprehension of legal principles as to the crime of acquiring smuggling or the crime of co-principal.

2. Determination on the prosecutor's grounds of appeal on Defendant 1

Article 269 (2) 1 of the Customs Act provides that a person shall secure customs duties on imported goods without filing an import declaration. Thus, in the case of importing goods without filing an import declaration, one crime is established at each time of import since the legal interest of securing customs duties on the imported goods is infringed separately and the elements of such act are satisfied separately at each time of import (see Supreme Court Decisions 200Do1338, May 26, 200; 9Do782, Nov. 10, 200; 200Do2903, Nov. 30, 200; 200Do2903, Jan. 30, 200; etc.). In the case of filing a prosecution for multiple non-reported import acts, the facts charged shall be stated in each act in order to specify the facts by specifying the date, time, place, and method thereof.

Of the facts charged against Defendant 1, the court below rejected the charges that the same Defendant imported 19,928,460 won from 19,99,928,460 won from 201 to 30,00 won from 202 to 30,00 won from 30,000 won from 9,529 and 160,673,000 won from 202 to 40,000 won from 30,000 won from 30,000 won from 200,000 won from 23,000,000 and 500,000 won from 20,000 to 5,000 won from 200, on the ground that the remainder of the facts charged were not stated on the date and time of import, item, quantity, etc., and thus, the court below did not err by misapprehending the legal principles as to the charges under Article 27 of the Criminal Procedure Act.

3. We examine the prosecutor’s grounds of appeal on Defendant 2 ex officio prior to the judgment.

The summary of the facts charged against Defendant 2 is as follows: “On July 8, 2002, Defendant 2 was found to have been guilty of having been not guilty of KRW 3,250,000 from 0 to 2,000,000 for the above 2,000,000,000,000,000 won for the above 2,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,000,00,00,00,00,00,00.

However, the crime of acquiring and keeping smuggling under Article 274(1)1 of the Customs Act also constitutes one crime for each acquisition or storage (see Supreme Court Decision 98Do1480, Jan. 26, 199, etc.). When several smuggling are prosecuted for concurrent crimes, the facts charged should be stated in each act specifying the date, time, place, and method thereof (see Supreme Court Decision 98Do1480, Jan. 26, 199, etc.).

Therefore, if the facts charged are not specified in the above facts charged, since the institution of a public prosecution is null and void in violation of the law, it shall be dismissed pursuant to Article 327 subparagraph 2 of the Criminal Procedure Act. With respect to the specified part of the facts charged, it shall be determined through a trial and the order shall be sentenced accordingly (as to the part of the facts charged, from September 2001 to July 8, 2002, Defendant 2 sold the goods of this case on a door-to-door 2,973 occasions, the court below seems to be not prosecuted separately, but it seems that this part is not prosecuted as a violation of the Customs Act. However, there is room to regard the above part as being prosecuted as "transfer" under Article 274 (1) of the Customs Act, and therefore, it is necessary to clarify this point more).

In addition, we cannot agree with the judgment of the court below that it constitutes a case where there is no evidence to confirm that the facts charged for the acquisition and storage of smuggling for the remaining goods except for the goods for which the crime of free import was approved by Defendant 1.

According to the records, Defendant 2 only sold cerebral ginseng, etc. imported by Defendant 1 through the Internet site, and there is no evidence to deem that Defendant 1 acquired cerebral ginseng, etc. from other persons. In full view of the fact that Defendant 1 imported cerebral ginseng, etc. without filing an import declaration, and Defendant 2’s acquisition and storage of cerebral ginseng, etc. also appears to be a part of the fact, Defendant 2, etc., even though the date, time, place, etc. of the import are not specified, it is sufficiently shown as smuggling imported without filing a report pursuant to Article 249(1)4 of the Criminal Procedure Act. The crime of non-reported import under the Customs Act is five years in accordance with the statute of limitations under Article 249(1)4 of the Criminal Procedure Act. Defendant 1 stated that Defendant 2 imported cerebral ginseng, etc. from the court of first instance in 201 through the court of first instance, and thus, it is not likely that the statute of limitations for this crime has expired (the summary order against Defendant 2 was filed on November 1, 201 and 2.).

Therefore, the judgment of the court below not guilty on the ground that the above long-term brain ginseng, etc. was closely imported at any time and on the ground that it was not confirmed that he was closely imported by anyone constitutes an unlawful act of misconceptioning the facts by misapprehending the legal principles on the acquisition and storage of smuggling (see Supreme Court Decision 94Do477 delivered on May 12, 195, etc.).

Therefore, the part of the judgment of the court below which acquitted Defendant 2 as to the violation of the Customs Act against the defendant 2 should be reversed, and since this part and the violation of the remaining Customs Act and the Act on the Consumer Protection in Electronic Commerce, Etc. should be sentenced to a single punishment as concurrent crimes under the former part of Article 37 of the Criminal Act, the part on the defendant 2 shall

4. Conclusion

Therefore, the part of the judgment below against Defendant 2 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The prosecutor's appeal against Defendant 1, such as Defendant 1's appeal, is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)