Whether the provisional payment of Article 239(2) of the former Customs Act is subject to the application of customs duties

Article 239(2) of the former Customs Act is clear that the fine and additional collection charge to be paid by a customs offender are not related to the provisional payment of customs duties, etc.

Article 239 of the Customs Act

Plaintiff 1 and one other (Attorney Choi Jae-sik, Counsel for the plaintiff-appellant)

Korea

may 29, 1970

Seoul Civil District Court Decision 68Do9332 delivered on May 14, 1969

1. Of the original judgment, the part dismissing Plaintiff 1’s claim for monetary payment of KRW 609,242, KRW 394,020 from July 15, 1967 to KRW 100 from each of them shall be revoked, respectively.

2. The defendant shall pay the above Paragraph (1) to the plaintiffs respectively.

3. The plaintiffs' remaining appeals are dismissed.

4. The costs of the lawsuit are divided into two parts through the first and second trials, and one of them is the plaintiffs, the other is the defendant, and the other is the defendant.

The plaintiffs' attorney shall revoke the original judgment. With respect to 1,154,650 won and 609,242 won from July 14, 1967 to 609,242 won, the defendant will pay to plaintiffs 1 the amount calculated by applying the rate of five preceding times to 100 won, and with respect to 697,026 won to plaintiffs 2 and 394,020 won among them, the amount calculated by applying the rate of five preceding times to 100 won from July 14, 1967 to 394,020 won.

The judgment that the costs of lawsuit shall be borne by the defendant in both the first and second trials and the declaration of provisional execution are sought.

(1) The defendant's defense, as in this case, that a lawsuit that leads to the legitimacy of an administrative disposition should be conducted by an administrative litigation, or that it should not be based on a civil litigation. However, this case is obvious by the plaintiff's assertion that the defendant is seeking the return of the amount of unjust enrichment based on an invalidated administrative disposition on the premise that the administrative disposition is null and void as a matter of course, and that such a lawsuit can be brought in a civil lawsuit immediately without undergoing an administrative litigation. Thus, the defendant's defense is groundless.

(2) On July 14, 1967, the head of the Sinsan Customs Office purchased 272,704 won as fine from Plaintiff 1; 272,704 won as surcharge; 190,893 won as customs duties; 1,160,560 won as special duties; 1,154,650 won as fine; 151,503 won as fine; 151,503 won as customs duties; 106,051 won as customs duties; 198,769, 697,026 won as special duties; 200 won as customs duties; 3.6 billion won as customs duties; 3.6 billion won as customs duties; 3.6 billion won as customs duties; and 4.6 billion won as customs duties as customs duties; and 4.6 billion won as customs duties as customs duties as customs duties as customs duties as customs duty-free; and 19.6 billion won as customs duties-free goods imported by the Plaintiffs.

However, the defendant asserted that on August 30, 1967, the defendant notified the plaintiffs of the above disposition by serving the notice and the notice on the 31st day following the date of the imposition of fine and surcharge, customs duties, goods taxes, and special duties, but since the plaintiffs acknowledged the official portion, it is insufficient to recognize that the defendant sent the above notice and the notice on the 6th day of August 31, 1967 to the plaintiffs by serving the above notice and the notice on the 31st day after the date of imposition of fine and surcharge, the above notice and the notice are not yet served on the plaintiffs. Therefore, the defendant's assertion is without merit.

Therefore, the disposition of a fine and a surcharge that should lead to the provisional payment and the disposition of a tax imposition shall not take effect because it is not served on the other party of the disposition.

(iii)decision on customs duties and special duties;

Article 239(2) of the Customs Act, which is a basis provision for the Defendant’s provisional payment of various taxes, is clear in light of the above provision that the Defendant’s provisional payment of the taxes is not related to a fine and a surcharge to be paid by a customs offender, and otherwise, the Defendant did not assert the grounds for the Defendant’s provisional payment of the taxes. As such, the Defendant’s provisional payment of each tax is nothing more than a legal basis, and as seen above, it cannot be deemed that the Defendant’s possession of each tax from the Plaintiffs is an benefit without any legal ground in the instant case where there is no validity of the provisional payment of the taxes against the Plaintiffs. Accordingly, the Defendant is obligated to return the amount of each tax paid to the Plaintiffs.

(4) Determination on fines and additional charges.

In importing raw materials for processing and export, the plaintiffs were imported after recognizing the volume of average loss from the process of manufacturing products including the quantity of raw materials that inevitably occurred in addition to the actual quantity necessary for the implementation of corresponding export. Thus, the non-party 1 corporation prepared all counter-exports and sold them to the plaintiffs. Since the above non-party 1 corporation was exempt from customs duties, it was incorporated into the above company, its representative director, and non-party 5 who were actually detained by the plaintiffs under the former Customs Act, and the defendant did not have any effect of the notification disposition against the above company, its representative director, and its representative director, and the non-party 4 who was its representative director, and the defendant did not have any effect of the notification disposition against the plaintiffs. Fifth, the defendant did not have any effect of the notification disposition against the plaintiffs since it did not go against the law, and it did not have any effect of the notification disposition against the defendant's duty under the Seoul Customs Act. Fifth, the defendant's act was not a violation of the law of notification disposition against the plaintiffs.

First of all, Article 239 of the Customs Act, which was in force at the time of this case, provides that the customs collector may specify the reason for the notification in respect of the Customs Act and notify the customs collector of the payment of the amount equivalent to the goods subject to confiscation of the amount equivalent to the fine or a minor fine or the amount equivalent to the additional collection charge. Paragraph 2 of this Article provides that if the person subject to the notification as referred to in paragraph (1) intends to make the provisional payment for the amount equivalent to the fine or the additional collection charge, the customs collector may make the provisional payment. Thus, if the person subject to the notification as a customs offender intends to make the provisional payment for the amount equivalent to the fine or the additional collection charge, he can make the provisional payment available.

Then, as to the plaintiffs' first and second arguments, it is difficult to believe that part of the testimony of the non-party 6 witness non-party 4 by the witness non-party 7 of the court below, as shown in the above arguments, was received in light of the testimony of the non-party 7 of the party witness non-party 7, and there is no evidence to prove that the plaintiffs entered a customs offender as a clerical error in order to receive bonus at the Seoul Customs Office or the plaintiffs were forced to make a provisional payment on the condition of the plaintiffs' release. Furthermore, if the testimony of non-party 7 of the party witness and the record verification results of the party members' testimony and the whole purport of the parties' arguments are combined, the fact that the plaintiffs purchased non-party 7's imported raw materials from the non-party 1 corporation, the importer of raw materials free from customs duty, and the defendant's testimony was completed in the hotel according to their wishes and received it according to the plaintiffs' request for a fine and the amount equivalent to the above provisional payment, and thus, the court's assertion that the above judgment should not be justified.

The plaintiffs' fourth assertion that the notification disposition against the plaintiffs by the head of Seoul Customs office has not yet been served as seen above, and therefore, the decision is omitted as to the fifth argument premised on the fact that the notification disposition was served on the plaintiffs who are the counter-party to the disposition, and as the fifth argument, the application of the Customs Act to the strike is invalid because it violates the Trade Business Act, but the issue of whether it is a strike or a strike is a matter of fact-finding, which can not be asserted for the reason that the administrative disposition is void as a matter of fact-finding. Therefore, the argument is groundless.

Ultimately, after the plaintiffs received the investigation of violation of the Customs Act from the Seoul Customs office, they paid the amount equivalent to a fine and a surcharge by themselves to the head of Seoul Customs office pursuant to Article 239(2) of the Customs Act, and later, the Seoul Customs office issued a notice disposition from the plaintiffs pursuant to Article 239(1) of the Customs Act to the plaintiffs in the situation where the notice disposition has not yet been served. Accordingly, since the notice disposition was not served lawfully, it cannot be asserted that the validity of the provisional payment has not yet come into force as seen above, and therefore, the plaintiffs' claim for the return of unjust enrichment equivalent to a fine and a surcharge against the defendant is groundless without further decision.

Finally, even if the above assertion is groundless, the plaintiffs claim that the provisional payment constitutes a deposit under the Civil Act, and thus, they return the money. However, the provisional payment under the above case is in accordance with Article 239 (2) of the Customs Act, and it cannot be viewed as a deposit under the Civil Act. Thus, it is difficult to receive such argument.

(4) Conclusion

Therefore, the defendant is obligated to pay 609,242 won and 394,020 won and 100 won from July 15, 1967 to the full payment system pursuant to Article 100 of the National Tax Collection Act, which are the following day after the provisional payment was made to the plaintiff 1 as taxes. Thus, the plaintiff's claim for this case is justified within the above recognized limit and justified, and the remaining claims shall be dismissed. Accordingly, the court below's decision partially different from this conclusion is erroneous, and therefore, the judgment on this part is revoked in accordance with Article 366 of the Civil Procedure Act, and the plaintiffs' appeal on the remaining part is dismissed in accordance with Article 384 of the same Act, since there is no reason to do so, it is dismissed in accordance with Articles 96, 95, 99, and 92 of the same Act. With respect to the bearing of litigation costs, Articles 98, and 99 of the same Act and Articles 384 of the same Act are applied.

Judges Man-Operation (Presiding Judge) Kim Sal-type Kim-hee