[1] In a case where a foreign ship is sold to a national under the Civil Procedure Act, whether it constitutes an import subject to the imposition of customs duties (affirmative) and the requirements

[2] The purport of Article 25(1) and (2) of the former Customs Act

[3] The requirements for applying the long-term extinctive prescription of the right to impose customs duties where a foreign ship acquired a successful bid and did not complete an import declaration

[1] The case of a ship is characterized by the navigation between Korea and another country. Thus, the ship's entry into Korea's territory does not mean that it was imported by the ship, but it was offered for the acquisition and use of our country's nationality even without an import license. In the auction procedure under the Civil Procedure Act, the issue of whether it constitutes an import subject to the imposition of customs duties should be determined by the Customs Act. It is not determined by the Foreign Trade Act that differs from its legislative purpose or purpose, but rather by the Foreign Trade Act. Thus, even if there was no procedure provision on the import by the method of successful bid acquisition under the Foreign Trade Act, it cannot be concluded that it does not immediately constitute an import subject to the imposition of customs duties. Thus, if the ship acquired the nationality of Korea and provided for navigation of the above ship after receiving a decision of approval of successful bid in the auction procedure for a foreign-registered ship, the ship is an imported goods subject to the imposition of customs duties.

[2] According to Article 25(1) of the Customs Act, the extinctive prescription shall expire if the right to collect customs duties is not exercised for two years from the date on which it can be exercised. According to Article 25(2) of the Customs Act, the extinctive prescription shall expire if the right to collect customs duties is not exercised for five years from the date on which the right to collect customs duties is exercised by deceit or other unlawful means or from the date on which the right to collect customs duties can be exercised. This shall be deemed to include not only the period on which the right to collect customs duties, etc. can be exercised but also the period on which the right to impose duties can be exercised. Meanwhile, in the event that a claim for customs duties, such as customs duties, on imported goods is determined at a short term but also is evaded by fraudulent or other unlawful means as provided in Article 25(2) of the Customs Act, it is difficult to find that it is difficult to exercise the right to impose duties early, and in the event that the returned amount of customs duties or the amount of duty

[3] If the tax authority imposed customs duties on a foreign-registered ship because it did not file an import declaration while it acquired a foreign-registered ship and used it for navigation, the issue of whether there is justifiable reason for the successful bidder to not pay the tax amount which was not reported by the successful bidder under Article 25(2) of the Customs Act for the purpose of applying the long-term extinctive prescription period of Article 25(2) of the Customs Act with respect to the right to impose and collect customs duties is not likely to be an issue. It should be recognized that

[1] Article 2 (1) of the former Customs Act (amended by Act No. 4674 of Dec. 31, 1993) / [2] Article 25 (1) and (2) (see current Article 25-2 (1)) of the former Customs Act (amended by Act No. 4674 of Dec. 31, 1993) / [3] Article 25 (1) and (2) (see current Article 25-2 (1)) of the former Customs Act (amended by Act No. 4674 of Dec. 31, 1993)

[1] Supreme Court Decision 93Do2324 delivered on April 12, 1994 (Gong1994Sang, 1545) / [2/3] Supreme Court Decision 94Nu3308 delivered on November 22, 1994 (Gong195Sang, 128)

East Oil Tank Co., Ltd. (Attorney Jung-dong et al., Counsel for the plaintiff-appellant)

Head of Ulsan Customs Office

Busan High Court Decision 95Gu6632 delivered on June 5, 1996

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

The grounds of appeal are examined.

1. On the first ground for appeal

Article 2 (1) 1 of the former Customs Act (amended by Act No. 4674 of Dec. 31, 1993; hereinafter the same) provides that a foreign country's taking of goods arriving in the Republic of Korea from a foreign country into the Republic of Korea means taking goods into the Republic of Korea after being de facto released from detention under the Customs Act, or entering into the free distribution state. Since there are special characteristics such as a ship's taking of goods into the territory of the Republic of Korea, it shall not be deemed that the ship was imported only by entering the territory of the Republic of Korea, but it shall be deemed that a ship without an import license falls under the import under the Customs Act if it was offered for the acquisition and use of the nationality of the Republic of Korea (see Supreme Court Decision 93Do2324, Apr. 12, 1994).

In an auction procedure under the Civil Procedure Act, the issue of whether a foreign vessel is eligible for the imposition of customs duties should be determined by the Customs Act, and it should not be determined by the Foreign Trade Act, which differs from the legislative purpose and purpose. Thus, even though the Foreign Trade Act did not provide any procedure provision on the import by the method of successful bid acquisition under the Foreign Trade Act, it cannot be readily concluded that the case does not immediately constitute the import subject to the imposition of customs duties.

According to the reasoning of the judgment below and the records, the plaintiff and the non-party corporation corporation, from the Busan District Court's Busan District Court's subsidies on July 29, 1991, with regard to the auction procedure of the Japanese-registered Shoun Pol Polco (former name No. 15 interest station No. 15 interest station, hereinafter referred to as the "the ship of this case." The judgment of the court below appears to be a clerical error in the case of indication of "Molma nationality" in the court below), and the successful bid price was fully paid on September 20 of the same year, and the ship of this case was provided for operation of the above ship around January 10 of the same year after acquiring the nationality of our country and around January 10, 192. Thus, the ship of this case constitutes imported goods subject to the imposition of customs duties.

Therefore, the judgment below to the same purport is just, and the ground of appeal pointing this out is without merit.

2. On the second ground for appeal

The court below acknowledged the facts as stated in its reasoning based on the evidence of the court below. Since it is reasonable to view that the plaintiff et al. had justifiable grounds for failing to report the payment of customs duties under Article 17 (1) and (3) of the Customs Act and failing to pay customs duties, it is reasonable to deem that the extinctive prescription of the right to collect customs duties on the ship of this case was five years under Article 25 (2) of the Customs Act, since it is reasonable to deem that the plaintiff et al. had justifiable grounds for failing to report the payment of customs duties under Article 17 (1) and (3) of the Customs Act, since the extinctive prescription of the right to collect customs duties on the ship of this case was lawful since the plaintiff et al. was made on June 28, 195, which was the five-year period under Article 25 (2) of the Customs Act.

However, according to Article 25(1) of the former Customs Act, unless the right to collect customs duties is exercised for two years from the date on which it can be exercised, the extinctive prescription expires. According to Article 25(2) of the former Customs Act, where the right to collect customs duties is not exercised for five years from the date on which the right to collect customs duties has been evaded or refunded by deceit or other unlawful means, or where customs duties have not been paid without any justifiable reason, the right to collect customs duties shall expire unless it is exercised for five years from the date on which the right to exercise the right to collect customs duties can be exercised. Thus, in the case of the Customs Act with no provision on the period of exercise of the right to impose duties, the above provision shall be deemed to have set the period of exercise of the right to impose customs duties, etc. as well as the period of exercise of the right to collect customs duties, etc. on imported goods in a short term, but it is difficult to expect an early exercise of the right to impose duties on imported goods by deceit or other unlawful means, barring special circumstances.

As acknowledged by the court below, if the plaintiff's failure to file an import declaration while the plaintiff acquired the ship of this case for the operation of the ship of this case and used it for the operation of the ship of this case, and the defendant imposed customs duties, there is no room to issue whether the plaintiff's right to impose and collect customs duties has justifiable grounds for failing to pay the tax amount that was not declared by the plaintiff for the long-term extinctive prescription period under Article 25 (2) of the former Customs Act, and it should be recognized that the form of evasion of customs duties constitutes a case of fraud or other improper methods. In addition, the court below's determination that the act of evasion of customs duties constitutes a case of application of the above provision on the ground that there is no justifiable ground for failing to file a declaration and failing to pay customs duties that was not declared by the plaintiff, it is obvious that the court below erred in the misapprehension of legal principles as to

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the case.

Justices Jeong Jong-ho (Presiding Justice)