(영문) 서울행정법원 2013.2.1.선고 2011구합7076 판결

1. The imposition of each duty and value-added tax as stated in the separate disposition No. 1 dated September 4, 2008 and the imposition of each duty and value-added tax as stated in the separate disposition No. 2 dated September 1, 2009 and September 21, 2009 shall be revoked by the head of the Seoul Customs Office against the Plaintiff Kitty Co., Ltd.

2. The imposition of each duty and value-added tax on September 4, 2008 by the head of Seoul Customs Office against the Plaintiff Samsung Heavy Heavy Spot Exchange on September 4, 2008 shall be revoked.

3. The head of defendant Daegu customs office shall revoke both the imposition of customs duties and value-added taxes as stated in the separate disposition No. 4 dated September 2, 2008; the imposition of each customs duties and value-added taxes stated in the separate disposition No. 5 dated March 23, 2009; and the imposition of each customs duties and value-added taxes stated in the separate disposition No. 6 dated July 29, 2009.

4. The head of the Daegu Customs Office fully revokes the imposition of each duty and value-added tax as stated in the separate disposition No. 7 dated September 2, 2008 and the imposition of each duty and value-added tax as stated in the separate disposition No. 8 dated August 24, 2009 against the Plaintiff Belgium Co., Ltd.

Reasons

1. Details of the disposition;

A. The Plaintiff K-si, Inc. (1) took a disposition against the Plaintiff K-si Co., Ltd. (hereinafter referred to as “Plaintiff K-si”) (1) on September 4, 2008, and Plaintiff K-si, from November 8, 2006 to November 19, 2007, 35 times as indicated in the separate disposition No. 1, as the exporter’s entry in the 35-Hate (hereinafter referred to as “Agor-Haeus”; hereinafter referred to as “Igor”), and the customs authority applied the above separate tariff rate of 70% for the purpose of examining the origin declaration to the Plaintiff’s 10-si and the 3rd K-si Bank (hereinafter referred to as “Sk”), and applied the aforementioned separate tariff rate of 90% to the Plaintiff’s 20-U.S. Free Trade Agreement, respectively, for the purpose of examining the origin declaration of the Plaintiff’s 70-U.S. Free Trade Agreement.

C. On December 2, 2010, the Tax Tribunal rendered a decision that the tax amount should be excluded from additional tax and that the remainder of the claims should be dismissed (hereinafter referred to as the "disposition 1 of this case") on December 2, 2010, the Plaintiff case filed an appeal with the Tax Tribunal on November 1, 2008.

(2) On September 1, 2009 and September 21, 2009, Plaintiff K-si, as indicated in the separate disposition No. 2 from March 9, 2007 to January 21, 2008, 18, the exporter, Mituus Bussn Plouses, hereinafter “Mituseson”) and MN 20 S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. 10% of its origin declaration was applied to each of the above 20.0-month 20.07 E.S. S. S.M. 10.M. 20.M.M. 207 E.M.M. 10.M.M. 20.M.M. 20.M. 20.M.M.M. and 201.M.M.M.M.M.M.M. 201.M.M.

C. On October 20, 2009, Plaintiff Kit City filed an appeal with the Tax Tribunal on October 20, 2009. On December 2, 2012, 2010, the Tax Tribunal rendered a decision that the amount of tax should be excluded from additional tax and dismissed the remaining claims (hereinafter “instant disposition”).

B. Disposition against the Plaintiff Samsung Samsung Heavy Heavy Heavy Exchange (hereinafter “Plaintiff Samsung Samsung Heavy”)

A) From April 5, 2007 to June 11, 2007, Plaintiff Samsung Heavy Co., Ltd. imported gold bars produced by Switzerland, an exporter, on three occasions, as shown in attached Form 3, and filed an import declaration by attaching an origin declaration issued by the above exporter pursuant to the FTA and applying 0% of the agreed tariff rates, and the head of the Incheon Airport Co., Ltd. accepted it. on September 4, 2008, the head of the Seoul Customs Office excluded the Plaintiff Samsung Heavy Heavy Co., Ltd. from the imposition of additional tax on the Plaintiff Samsung Heavy Heavy Co., Ltd. 2, 2007 upon request of the Switzerland customs authority for verification of origin (the Switzerland customs duty rate of 0.0% on March 7, 2008, 2007). The Plaintiff Co., Ltd., Ltd., 200 and 30.0% of the additional tax return were written in attached Form 37 of the Agreement.

In addition to the origin declaration issued by the above exporters, the import declaration was filed by applying 0% of the conventional tariff rate, and the head of the Incheon Airport customs office accepted it.

(B) On September 2, 2008, the head of the defendant Daegu Customs Office requested the Switzerland customs authority to verify the origin of the gold bullion in order to examine whether it is appropriate to apply the conventional tariff rate under the FTA on September 7, 2007, and on March 7, 2008, the Switzerland issued a reply to the purport that the above origin declaration was issued wrong because the origin of the gold bullion was not Switzerland." On the ground that "the above origin declaration was not the Switzerland," it excluded the application of the conventional tariff rate in accordance with Article 24 (7) of Annex I to the FTA, and applied the basic tariff rate of 3% to impose additional tax of 5,964,930 won on the gold bullion. Accordingly, the plaintiff Samsung filed a request for a judgment on November 29, 2008, and the remaining tax Tribunal rejected the request for a judgment on November 29, 2008, and the tax Tribunal rejected the request for a judgment on December 21, 2008.

(2) On March 23, 2009, the Plaintiff Samchion imported gold produced by the Plaintiff, the exporter, from April 25, 2007 to May 3, 2007, on four occasions, as shown in the Disposition No. 5, from April 25, 2007 to May 3, 2007, and filed an import declaration by attaching an origin declaration issued by the said exporter pursuant to the FTA and applying 0% of the agreed tariff rate to the origin declaration issued by the said exporter, and the head of the Incheon Airport accepted it.

B) On March 23, 2009, in order to examine whether it is appropriate to apply the conventional tariff rate to the Plaintiff Samsan on the basis of the instant FTA on June 11, 2008, the head of the Daegu Customs Office requested the Switzerland customs office to verify the origin of the gold, but no response was made within ten months after the response deadline." Accordingly, he issued a disposition to impose a total of 26,640,330 won of the customs duties, value-added tax, and additional tax on the gold stated in attached Table 5 by excluding the application of the conventional tariff rate pursuant to Article 24(7) of Annex I of the instant FTA and applying the basic tariff rate of 3%.

C. On June 19, 2009, the plaintiff Samsung Samsung Heavy Heavy filed an appeal with the Tax Tribunal on June 19, 2009. On December 2, 2012, 2010, the Tax Tribunal made a decision that the tax amount should be excluded from additional tax and dismissed the remaining claims (hereinafter "the disposition imposing customs duties and value-added tax on each of the disposition stated in attached Form 5").

(3) From May 9, 2007 to August 3, 2007, the Plaintiff Samhan imported gold produced by the exporter from Mestan, Messon, producer from Messon, Messon, etc. on 27 occasions, such as the statement in the Disposition No. 6, from May 9, 2007 to August 3, 2007, and filed an import declaration by attaching an origin declaration issued by the above exporter pursuant to the FTA and applying 0% of the agreed tariff rate to the above exporter, and the head of Incheon Airport accepted the import declaration by applying 0% of the agreed tariff rate. On July 29, 2009, the head of the Defendant Daegu customs office in Korea requested on June 11, 2008 to verify the origin of the above gold bullion, but did not apply the basic tariff rate No. 275% of the Agreement and the additional tax rate No. 276% of the Agreement within 10 months.

C) On October 26, 2009, Plaintiff Samsung Heavy Heavy filed an appeal with the Tax Tribunal. On October 26, 2009, the Tax Tribunal rendered a decision that the amount of tax would be excluded from additional tax among the dispositions under the preceding paragraph on December 2, 2010 and dismissed the remainder of the claims (hereinafter “instant disposition on imposition of customs duties and value-added tax” as stated in the attached disposition 6).

D. Plaintiff 1) Belgium 2 (the disposition of Sep. 2, 2008) received an import declaration by attaching the origin declaration issued by the above exporter pursuant to the FTA and applying 0% of the agreed tariff rate to 12 times from Switzerland 2007 to 3 April 2007, and the head of Incheon Airport 2000. The head of the Korea Customs Office excluded Plaintiff 2 from the additional tax rate of 0.0% on September 2, 2008, on the grounds that it is reasonable to exclude the Plaintiff 2 from the additional tax rate of 9.7% on the grounds that it is reasonable to exclude the Plaintiff 2 from the additional tax rate of 9.7% on September 7, 2007, the additional tax rate of 19.7% on each of the above orders of 0.0% on the origin declaration.

(2) On August 24, 2009, Plaintiff Belgium demanded the customs authority to verify the origin of the gold bullion on two occasions from January 14, 2008 to January 21, 2008, as indicated in the attached disposition No. 8, and upon importing gold bullion produced by the exporter who is the producer, the Plaintiff made an import declaration by attaching an origin declaration issued by the above exporter pursuant to the FTA agreement of this case and applying 0% of the conventional Airport tariff rate, and the head of the Incheon Airport customs office accepted the import declaration by applying 0% of the conventional tariff rate. In addition, on August 24, 2009, the head of the Defendant Daegu customshouse requested on June 11, 2008 to verify the origin of the gold bullion, but the head of the customs office did not request for the verification of the origin of the customs authority to assess whether it is reasonable to apply the conventional tariff rate pursuant to the FTA of this case, on the grounds that there was no additional tax reply within 10 months after the reply deadline for the application of the attached tariff rate No.374.

(C) On November 9, 2009, Plaintiff Samsung Samsung Heavy Heavy filed an appeal with the Tax Tribunal on November 9, 2009. On December 2, 2012, 2010, the Tax Tribunal rendered a decision that the amount of tax should be excluded from additional taxes and dismissed the remainder of claims (hereinafter “instant disposition 8” and “the instant disposition” combined with the instant dispositions 1 through 8).

E. In addition, Switzerland customs authority added that "the reply was not sent within 10 months from the date of the request for origin verification of the instant disposition by the Korea Customs Service from the date of the request for the Korea Customs Service for the origin verification of the instant disposition," and that "the reply sent by the Switzerland customs authority after the above response deadline is not sufficient information to determine the authenticity of the relevant documents or the origin of the goods" is not included in the reply sent by the above response deadline, and the additional reasons for the disposition are the same as the existing reasons for the disposition and the basic facts leading to the instant disposition, and the plaintiffs did not raise any objection to the addition of such disposition).

[Ground of Recognition] Unsatisfy, each entry of Gap evidence 2 to 14 (including each number)

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

(1) The Swiss customs authority responded to part of the initial period of determining origin only based on the producer’s statements that recognized errors with respect to the Korea Customs Service’s request for verification, and the Switzerland’s export gold bars exported to Korea were not the Switzerland. However, immediately thereafter, the Switzerland customs authority, upon filing a lawsuit with the Switzerland domestic court against the determination of origin by the Switzerland customs authority, provided that the said producer had again filed a domestic lawsuit against the same issue pertaining to the same industry and product group, sought an understanding with the Korea Customs Service on the grounds that the lawsuit was filed again, the Switzerland customs authority sought an explanation, relevant information, and the position of the Switzerland customs authority, and then responded to the final result by conducting an actual verification of origin during the process of the above procedure. Accordingly, the aforementioned circumstance at which the Switzerland customs authority was faced with the Switzerland customs authority’s response was unlawful in the instant case, and thus, the Defendants’ measure was unlawful in the instant case’s other premise.

(2) After the request for verification by the Korea Customs Service for the verification, the Swiss customs authority constantly explained the reasons and progress of the verification, and the final reply that all gold bars, in turn, did not regard the origin as the Switzerland, provided a detailed explanation about the manufacturing process of the subject of verification and the process of determination, etc. of the subject of verification, and provided a detailed explanation about the process of verification and the origin of the goods. Therefore, the instant disposition by the Defendants on a different premise is unlawful.

(b) Related statutes;

Attached Form 9 shall be as listed in attached Table 9.

(i)request the Korea Customs Service to verify the origin;

(A) Since the entry into force of the FTA on September 1, 2006, the total amount of gold revenue of the Republic of Korea increased to 29.3%, and among them, the amount of gold revenue from Switzerland has increased to 29.3%. However, in the case of Switzerland, it was necessary to verify whether the origin of gold revenue from Switzerland is appropriate because the amount of output is low. Accordingly, the Korea Customs Service requested the Korea Customs Service to verify the authenticity of the origin declaration and the accuracy of information contained in the origin declaration in accordance with Article 24(1) through (3) of Annex I of the FTA.

1) The Korea Customs Service around September 7, 2007 and around December 27 of the same year requested the verification of the origin of the instant Agreement (hereinafter referred to as the “request for the primary verification”) with respect to gold bars subject to the import declaration stated in the details of each disposition in the attached Form 1, 3, 4 (not less than September 7, 2007 but not less than September 7, 2007), attached hereto, 1, 3, 5, 7 (not less than December 27, 2007, and the origin declaration in question, whether they meet the origin criteria of the instant Agreement (a change in HS 6 tariff classification) and whether they are authentic in the relevant origin declaration (hereinafter referred to as “request for the primary verification”).

2) Furthermore, around June 11, 2008, the Korea Customs Service requested the verification of origin regarding the gold bullion, which is the subject of an import declaration stated in the attached Forms 2, 6, and 8 of the Agreement, made by Mussers, Cambodia, Russ, and Pampers, etc., to verify the origin of the instant origin declaration (hereinafter referred to as “the second request for verification of origin”) and the authenticity of the relevant origin declaration (hereinafter referred to as “the second request for verification”).

(2) The response of the Switzerland customs authority

(A) As to the request for the above verification by the Korea Customs Service, whether and the result thereof by the Swiss customs authority are as follows:

A person shall be appointed.

The main contents of the replies of the Switzerland Customs Authority and documents issued by the Korea Customs Service and the Switzerland Customs Authority related thereto, measures taken by the Korea Customs Service are as follows:

1) The Swiss customs authority's response on March 7, 2008: it is judged that the gold bars subject to import declarations listed in Appendix 1, 3, 4, and 7 are no longer restrictive and that in the case of Cambodia, the exporters are voluntarily notified of the fact that the rules of origin of the instant FTA are no more restrictive and do not meet the provisions listed in Appendix 2 of Annex I and the verification is underway in the case of Muss.

2) On May 16, 2008, the Switzerland customs authority's notice of May 16, 2008: in relation to the response of March 7, 2008 above, ① filed a lawsuit with the Switzerland domestic court against the Switzerland's decision of "conformity with the origin requirements" of the Switzerland customs authority; ② deliver the documents on the operation and process of export goods for which Switzerland and Cambodia wish to provide to the Korean customs authority.

3) Notification made on June 6, 2008 by the Korea Customs Service of the Republic of Korea on May 16, 2008: (i) the detailed reasons for the response made on March 7, 2008 and the provision of evidential data, and (ii) the progress of the litigation filed by Algn and Cambodia and the submission of documents, etc. in relation to the notification made on May 16, 2008.

4) On or around June 2008, notification by the Swiss customs authority on May 16, 2008: ① concrete reasons are explained in the reply of March 7, 2008 with respect to the notification made on May 16, 2008, and ② The objection procedures are in progress in the federal court, and when the objection procedures are in progress in the future.

5) Results of verification by the Korea Customs Service around July 2, 2008: It presented a provisional view that, as a result of verification of origin conducted with respect to Mussler, the customs office does not meet the origin criteria (based on a change in tariff classification) using Dore money, which is the HS tariff classification code, as the result of a verification of origin, because originating materials and non-originating materials used in the production of Muss are not distinguished from originating materials and non-originating materials.

6) Notification made on December 9, 2008 by the Korea Customs Service on the Republic of Korea on December 9, 2008: The first verification was not made, but the reasons for the delay and the timing of response should be notified.

7) On January 5, 2009 of the Swiss customs authority's notice: The case of an Switzerland with respect to the first verification request is being tried by the Federal Administrative Court, and the case of an objection to the decision of the Republic of Korea Customs Service in the Switzerland is currently being tried by the main office of the Switzerland customs authority.

is the same.

8) On February 24, 2009, the notice issued by the Korea Customs Service on February 24, 2009: The Switzerland customs authority replys to the result of verification of origin after the completion of the Switzerland domestic litigation, but it is not desirable to delay replies for reasons of domestic litigation. Therefore, the Korea Customs Service wishes to respond within the time limit stipulated in the FTA.

9) On March 3, 2009, the Swiss customs authority's notice of March 3, 2009: The Switzerland customs authority is waiting for the decision of the administrative court of the Switzerland, and it is not a position to respond to the issues for which the verification of origin has not been completed, and it is considered that these matters are exceptional cases provided for in Annex I Article 24 (7) of the FTA.

10) The Swiss Customs Authority’s reply on January 12, 2011: With respect to the gold bars subject to import declarations listed in Appendix 1 and 3 and gold bars subject to import declarations listed in Appendix 6, 7, the Switzerland’s products meet the origin requirements and the certificate of origin was issued in a correct manner.

11) The Swiss Customs Authority's response on February 4, 2011: With respect to the leader subject to an import declaration stated in Annex 4 and the gold leader subject to an import declaration stated in Annex 7, the third country is deemed to be an origin and the certificate of origin of Cambodia's cost is issued mistakenly.

12) The Swiss customs authority's reply on March 29, 2011: the gold bars subject to an import declaration as shown in Appendix 2, which are manufactured by Cambodia, are considered to be the origin of a third country, and the certificate of the Cambodia's origin is issued mistakenly.

13) Notice issued on May 5, 2011 by the Korea Customs Service: the Korea Customs Service of Korea filed an administrative appeal and administrative litigation against the determination of lack of origin; the claims were all dismissed; and thereafter, the Switzerland Customs Service of the Federal Appellate Court becomes aware that the lawsuit was voluntarily withdrawn during the proceeding of the Federal Appellate Court. ① The reasons why the Switzerland Customs Authority voluntarily voluntarily withdraws the lawsuit after winning the lower court; ② the reasons why the re-verification was made after the withdrawal of the lawsuit; ③ the reasons why the initial decision was reversed; ③ whether the Switzerland Customs Authority voluntarily voluntarily withdraws the lawsuit after winning the lower court; ③ the explanation of the case; ⑤ the reasons why the response was remarkably exceeded the time limit for response under the FTA; ⑤ whether there were grounds under the Switzerland domestic law to postpone the response of origin verification until the litigation procedure is completed; ⑤ whether there were the definitions or guidelines under the Switzerland domestic law regarding exceptional cases under the FTA of this case; and ③ the explanation of raw materials and manufacturing processes used to determine the origin; and ③ the court’s request for the provision of judgment.

14) Switzerland customs authority’s notice of May 27, 2011: the exporter voluntarily made a reply to the same content as that the certificate of origin was issued due to the failure of the exporter to meet the criteria for the instant FTA agreement, and the exporter was also dissatisfied with the Federal Administrative Court. The Switzerland customs authority, along with the lawsuit, informed that the verification of other Switzerland producers was conducted, and that certain production processes in this process affect pride in the status of origin of gold ing. The response to the notification to the Korea Customs Service under the preceding paragraph was known. (1) If the exporter applied the same production process, the determination of the Federal Administrative Court is without merit and the exporter should have won in favor of the same Appellate Court. (8) The exporter’s initial disposition was reversed by recognizing that the exporter’s gold ing of the result of verification was originating in favor of the Federal Appellate Court, and thus, the exporter’s final decision was not subject to the guidelines for determination on the origin of gold ing. (5) The court’s final decision on the origin of the exporter’s domestic law and its final decision was not acceptable.

15) Switzerland customs authority’s response 1, 17th 2012: the products of mers, excluding a part of the results of the previous verification, have satisfied the origin requirements on the basis of the response to the production process obtained in the course of a lawsuit by the Federal Administrative Court.

(3) Progress of the Switzerland appeal procedure

(A) As to the first verification request, on March 7, 2008, the Swiss customs authority respondeded to the Korea Customs Service of Korea on the 25th of the same month that Switzerland failed to meet the origin requirements, and notified Switzerland on the 20th of the same month, Switzerland filed an objection with the Switzerland customs authority on April 2008, 205, and on October 23, 2008, Switzerland dismissed the objection, the Switzerland filed a lawsuit with the Federal Administrative Court on December 1, 2008.

(B) On September 8, 2009, Switzerland's Federal Administrative Court dismissed its claim to the effect that "I was confirmed to have failed to meet the conditions for production of finished products using only the same Switzerland No, HS No, and that I did not prove that the finished products were managed in inventory through the separate accounting method." In the process, I appealed the previous decision by the Switzerland customs authority on May 31, 2010, and decided that I would meet the origin conditions, the Court of Appeals concluded the case only by the decision on the cost of litigation on July 5, 2010, without deciding whether I would meet the origin conditions, and the Switzerland's Federal Administrative Court rendered a judgment on August 10, 2010 (5).

(4) The methods of origin verification by FTA concluded by Korea are as follows.

A person shall be appointed.

(5) Recognizing that the amendment of the rules of origin under the FTA of this case was not processed on January 21, 2010, or that it is impossible for gold bars exporters of HS 7106, 7108, or 7110 in the form of primary products to receive preferential tariff treatment under the FTA (it is impossible to meet the HS6 unit change criteria), the Parties adopted a decision of the Joint Commission that introduces criteria for origin determination (if the amendment was made with pre-sea, heat, chemical separation process and precious metal or non-metallic metal between precious metals or 7100).

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 1 through 11, Gap evidence Nos. 14, 15, Eul evidence Nos. 1 through 22, Eul evidence Nos. 29, 30, 33, 36 (including various numbers), the purport of the whole pleadings

D. Determination

(1) Article 24 of Annex I to the FTA provides that the customs authority of the importing Party may at any time request verification of the authenticity of the Certificate of Origin, the origin status of the good in question, etc. at any time (Paragraph 2), and the importing Party that requested verification shall be provided with all documentary evidence of the exporter, including the results and facts of the investigation by the customs authority of the exporting Party and, if not, within 10 months from the date of the request for verification or if the response does not contain sufficient information to determine the origin of the good, the authority of the customs authority of the importing country to directly verify the origin of the good in question may be excluded from the requirement of preferential tariff treatment, provided that the customs authority of the exporting Party, at any time, has no authority to directly verify the origin of the goods and to directly carry out its supervisory functions (Paragraph 4), provided that the customs authority of the exporting Party that has requested verification has no authority to directly verify the origin of the goods within the date of the request for verification, and that the customs authority of the importing country may, if not, within the date of the request for verification.

Therefore, the parties to the FTA agree with regard to the contents and scope of the information and data to be included in the reply to the verification request, taking into account the stability in the operation of the system and the possibility of the fulfillment of the mutual cooperation obligation. The FTA agreements adopted the method of indirect verification, like the FTA agreements between Korea and the EU, provide for a relatively longer reply (10 months) to other FTA agreements that adopted the method of direct verification or mixed verification, taking into account the reasonable time required for the customs authority of the exporting country to perform the verification duty and to notify the customs authority of the importing country.

B. However, Article 24(7) of Annex I to the FTA of this case provides that the preferential tariff treatment shall be maintained in exceptional cases where it is deemed as a specific situation in which preferential tariff treatment cannot be excluded even if the ten months period of time provided for in the reply to a request for origin verification or the relevant documents are not included in the reply or sufficient information to determine the authenticity of the relevant documents or the origin of the goods. In light of the purport of the above provision, this means a specific situation in which the customs authority of the exporting country is unable to control the producer, exporter, and the customs authority of the exporting country because the origin verification system proposed by the FTA of this case fails to properly operate the verification system, and thus it means a specific situation in which it is impossible for the customs authority of the exporting country to postpone verification or reply or to control the defect in its content. However, unless the FTA of this case has specific provisions on this, the determination is inevitable in light of the purport, content, procedure, method, etc. of the FTA of this case and the origin verification system.

C) In light of the following circumstances, in light of the contents of the instant FTA agreement, the above facts of recognition, and the purport of the entire pleadings, it cannot be deemed that the Switzerland customs authority’s failure to reply to a request for verification by the Korea Customs Service within 10 months, a reply made pursuant to Article 24(7) of Annex I of the instant FTA agreement, or failure to make a final reply within the above reply period after reserving the result of the existing reply that it did not meet the origin requirements.

1) In light of the recent increase in the import of gold bars originating from Switzerland following the entry into force of the instant FTA, the Korea Customs Service made a reasonable doubt as to whether it is appropriate in granting the status of origin of gold bars imported from Switzerland, and requested the Switzerland customs authority to verify the status of origin. The Switzerland customs authority sent a reply to the request for the first verification of the Korea Customs Service on March 7, 2008 that gold bars subject to import declaration as shown in [Attachment 1, 3, 4, and 7] failed to meet the origin requirements, and that the Defendants failed to respond to the request for the first verification of the Korea Customs Service. In addition, the Switzerland Customs Service did not have any special circumstance other than the above reply from the Switzerland Customs Authority’s verification of the Switzerland, which was observed by the Korea Customs Service, and the Defendants could not respond to the request for the second verification of the Switzerland customs duty return within the same time as the materials used in the manufacture, and thus, failed to meet the requirements of the HS.

2) The FTA agreement of this case provides that the customs authority of the exporting Party shall conduct a verification directly upon the request of the customs authority of the importing country, and for this purpose, the customs authority of the exporting Party shall require the exporter or the producer to provide all evidence, have the right to inspect the account books or to exercise appropriate supervision (Article 24(4)), the exporter or the producer of the exported product shall, upon the request of the customs authority of the exporting Party, provide all documents supporting the originating status of all the products for which the origin declaration is used (Article 15(7)), and the exporter or producer who prepares the origin declaration shall have the duty to keep the above documents for a maximum of five years (Article 21(1)), and the subject of direct verification shall be the customs authority of the exporting Party, and the customs authority of the importing country shall be the customs authority of the importing country, and shall have the right to receive all information and data necessary for the substantive and effective verification (Article 24(1) and (4)). On the other hand, the customs authority of the Swiss customs authority shall not be deemed to have any provision or authority to postpone domestic law.

3) In addition, the Switzerland customs authority issued a reply on March 7, 2008, based only on the above producers’ statements without conducting substantial verification of origin, and then filed a lawsuit seeking revocation of the Switzerland Customs Authority’s decision on lack of origin. On the grounds of the continuation of the above lawsuit, the Switzerland customs authority did not provide for verification of origin or verification of other gold bars in this case other than the price subject to import declaration stated in Appendix 1, 3, 4, and 7, as well as the Switzerland’s submission of origin requirements (the determination of origin is limited only to the modification of the HS No. 3). However, the parties did not respond to any specific measure of the Party, including the instant FTA, inasmuch as the aforementioned producers’ position changed and the Switzerland’s position did not change, and thus did not provide for specific measures of the Party’s submission of the Switzerland Customs Authority or verification result.

4) According to the principles of reciprocity under international law and the necessity of mutual assistance and cooperation under the FTA are merely reversed, taking into account the area of origin determination and verification, it cannot be deemed that the Switzerland’s reservation of reply to a final disposition in accordance with the purport of the ruling constitutes exceptional cases as provided by Article XXIV(7) of the Agreement, and that the final response by the customs authority of the Switzerland reflects the Switzerland’s administrative litigation process. In other words, the ruling of the Switzerland Administrative Court on the issue of the instant case was confirmed to have failed to produce finished products using the same Switzerland tariff classification and to have failed to meet the production conditions of the Switzerland and to have its original Switzerland’s request for a new 10th administrative court ruling on the grounds that it did not recognize the originating status of Switzerland and that it did not constitute an exceptional case as provided by the Switzerland’s first 2nd administrative court ruling on the Switzerland’s request for a new verification of the origin of the products, and that the Switzerland’s request for a new 2nd administrative court ruling on the origin of the products was rejected.

5) Ultimately, the Switzerland’s authority, without conducting the actual verification scheduled for the instant FTA, notifies the Korea Customs Service of the fact that the requirements for origin were not satisfied on March 7, 2008, based only on the statements of its exporters and producers, and on the grounds that it failed to establish the criteria for recognition of origin or the criteria for evaluation of materials management and production processes of its producers, thereby resulting in the delay, return, etc. of replies by determining the status of origin by applying the criteria different from those of the previous Federal Administrative Court of the Republic of Korea, which did not comply with the purport of the judgment of its own Federal Administrative Court, at the latest later, and by determining the status of origin by applying the criteria different from those of the previous verification. Therefore, it cannot be said that the Switzerland’s authority filed a lawsuit for delaying or re-consting the reply with respect to the request for verification by the Korea Customs Service of the Republic of Korea Customs Service

6) 한편 2010. 1. 21. 채택된 한국-EFTA 공동위원회의 결정에서는 '가공되지 않거나 일차제품의 형태의 HS7106, 7108, 7110호인 금과 관련한 이 사건 FTA 협정의 규정으로 인해 그러한 상품의 수출자들이 협정상의 특혜관세대우를 받는 것이 불가능하다는 것을 인식(Recognizing that the rules regarding silver, gold and platinum in unwrought or in semimanufactured forms, or in powder form, make it impossible for exporters of those products to benefit from preferential treatment under the Agreement)하였음'을 전제로 원산지결정기준에 스위스 생산자들이 주로 담당하는 금의 순도를 높이기 위한 전해, 열, 화학적 분리 공정 등이 이루어진 경우를 추가함으로써, 개정 전 규정에 따를 때 스위스 생산자가 생산한 금괴에 스위스 원산지 지위를 인정하는 것이 불가능에 가까웠음을 시사한 점, 아래에서 살펴보듯 스위스 관세당국이 기존 회신을 번복 또는 회신기한을 경과하여 원고들이 수입 금괴의 전부 또는 일부가 원산지 요건을 충족한다는 취지의 회신을 보냈으나 자신의 설명 및 주장 이 외에 이를 뒷받침할 수 있는 어떠한 증빙자료도 송부하지 않았던 점 등을 고려하면, 대한민국 관세청이 사후적으로 회신기한 도과의 예외를 인정하고 스위스 과세당국의 최종적인 회신 내용을 그대로 받아들여 이 사건 처분을 취소 · 경정할 여지도 없었다고 봄이 상당하다.

(2) Even if the final reply of the Switzerland customs authority contains “the authenticity of the relevant document or sufficient information to determine the origin of the good” as stipulated in Annex I Article 24(7) of the Free Trade Agreement, the Korea Customs Service may exclude preferential tariff treatment if it does not include “the document authenticity or sufficient information to determine the origin of the good” if the circumstances that the Switzerland customs authority did not reply to a request for verification by the Korea Customs Service within 10 months of the response deadline, or that the final reply was not made within the response deadline after the withdrawal of the existing reply that did not meet the origin requirements, and if it does not include “the exceptional cases prescribed in the above provision,” the Korea Customs Service’s reply does not include “the authenticity of the relevant document or sufficient information to determine the origin of the good.”

B. In light of the following circumstances, it cannot be deemed that the Switzerland customs authority included the authenticity of the proof of origin attached to the Plaintiffs’ import declaration or sufficient information to determine the origin of the relevant gold bars, in light of the contents of the FTA, the above fact of recognition, and the purport of the entire pleadings.

1) Article 24(6) of the Free Trade Agreement provides that “the customs authority requesting a verification shall receive the result of the verification, including findings and facts, and, as far as possible, all documentary evidence of the exporter.” Since the verification results provide that “the document authenticity, whether the product in question can be considered as the product originating in the Republic of Korea or the EFTA, and whether the other requirements of this Annex are satisfied,” the Switzerland customs authority shall send documentary evidence to the Korea Customs Service in support of the determination of origin and shall explain the details of the determination of origin in detail on the basis thereof. The Korea Customs Service has a duty to explain the determination of origin in addition to the first and second verification request, the second verification request, the June 6, 2008, and the May 18, 2011, even though the Korea Customs Service requested to provide the producers with the documentary evidence of origin, it did not provide the producer’s written opinion attached to the notification made on May 16, 2008, as well as the brief submission of Cambodia and the production process.

2) The Switzerland customs authority, through its notification dated 5,27, 2011, notified the producers that they cannot provide data on the list of raw materials and manufacturing processes used in the determination of origin on the ground that they fall under the producer’s trade secrets. Article 26 of the FTA provides that “Each Party shall maintain confidentiality acquired in the course of origin declarations, verification, etc., and if the other Party considers that the confidentiality of information is not maintained by the other Party, the Party may request consultations in writing to the other Party for the purpose of agreement on appropriate measures.” Thus, even if it is a confidential material, it is premised on the fact that each Party bears the duty of confidentiality, as long as it can be provided as it is subject to the duty of confidentiality. Thus, failure to provide all documentary evidence on the determination of origin solely on the ground that the customs authority falls under the business secrets is inappropriate measures contrary to the provisions of Articles 24(6) and 26 of the FTA.

3) Furthermore, Switzerland customs authorities have reconvened their existing replies and made a final reply that they may be granted originating status by applying new criteria related to a specific process that does not conform with the purport of the judgment of the Federal Administrative Court of Korea. As such, the detailed explanation that support such a conclusion and the presentation of evidentiary materials was more necessary, and no objective data other than the response to which their arguments were presented was not sent.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges

Awards and decorations for judges;

Judges Cho Hon-ho

Judges Kim Tae-hee

Note tin

1) Switzerland, The Principality of Principality, Norway, Norway, and the Republic of Korea is a Member.

2) In the briefs dated November 6, 2012, the argument that the addition of the reasons for such disposition is not allowed was withdrawn.

3) The answer to a request for verification by the Korea Customs Service is called as 'recontest', 'the dispatch and reply of other documents'.

4) However, the documents mentioned and transmitted in the above notice are written opinion of the Cambodia’s expenses (it conforms to the origin standard, considering the method of separation of accounts).

It is only a simple flow of production procedure.

5) On September 8, 2009, the Swiss Federal Administrative Court rendered a ruling on September 8, 2009 with respect to a lawsuit brought by Cambodia, and the Federal Appeal Court rendered a ruling on November 11, 2010.

The decision to the effect that the issuance of the Certificate of Origin was wrong because the specific content is not confirmed, but it is not possible to determine the origin.

There is no dispute between the parties as to a declaration.

6) Data published on the web pages of the Ministry of Foreign Affairs and Trade (www.Mofat.go.go).

7) Article 3 of the Act on Special Cases Concerning the Free Trade Agreements provides that if the Act on Special Cases Concerning the Free Trade Agreements conflicts with the FTA agreements, the agreement shall take precedence over others.

We examine the provisions of the FTA.

8) In Swisss, it is known that the final process is primarily responsible for the enhancement of the net level of materials such as Dore.

19) Switzerland’s notification to the Switzerland customs authority on May 27, 2011.

10) In addition to the leader subject to import declarations set out in Appendix 1, 3, 4, and 7 subject to determination on the adequacy of originating status in the administrative litigation filed in Switzerland

It is more so true with respect to other gold bars at issue in this case.

11) Notwithstanding the repeated request of the Korea Customs Service, the Swiss customs authority shall change the response to the initial response to the Switzerland to meet its response.

No information was provided on the ‘specific fairness that has a positive impact on the status of origin’ as a critical reason.

Attached Form

A person shall be appointed.

심급 사건

서울행정법원 2013.2.1.선고 2011구합7076

-서울고등법원 2014.1.22.선고 2013누8969

-대법원 2016.8.24.선고 2014두4290

유사 판례

-서울고등법원 2014.1.22.선고 2013누8969 판결

-서울행정법원 2013.02.01 2011구합7076

-대법원 2016. 8. 24. 선고 2014두5644 판결

-대법원 2016.8.24.선고 2014두8391 판결

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