[1] Legislative intent of the main text and proviso of Article 21(1)1 of the former Customs Act, and whether the “illegal means” under Article 21(1)1 of the former Customs Act includes any unlawful means committed by a taxpayer’s agent or performance assistant (affirmative in principle)

[2] In a case where Gap corporation entered into a maritime oil supply service contract with Eul corporation for the supply of oil for overseas navigation vessels, and Eul corporation entered into a charter contract with Byung corporation for the supply of oil for overseas navigation vessels, and Eul corporation entered into a charter contract with Byung corporation for the supply of oil for the supply of oil for overseas navigation vessels, and forged a receipt for the supply of oil for the supply of oil for the supply of oil for the supply of oil for the supply of which the representative of Byung corporation was supplied unlawfully and normally supplied to the Republic of Korea, and Gap corporation entered into a refund of customs duties, etc. paid at the time of the import of oil for the import of oil for this reason, and the head of the competent customs office imposed customs duties, etc. in accordance with Article 21(1)3 of the former Act on Special Cases concerning the Refund of Customs Duties,

[1] The main text and proviso of Article 21(1)1 of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010) and its legislative purport are to shorten the exclusion period to two years for the purpose of early determination of the customs-related legal relationship, but it is difficult for the tax authority to find out that there is any illegal act such as making it difficult to detect the taxation-related fact or forging or withdrawing the fact requiring refund, and thus, it is difficult for the tax authority to expect early exercise of the imposition right. Thus, the "illegal method" mentioned above includes not only the unlawful method done by the taxpayer himself/herself, but also the unlawful method by which the taxpayer's agent or performing assistant of the taxpayer who obtains the benefit of expanding the scope of the act by entrusting him/her with the management of related business, barring any special circumstances.

[2] In a case where Gap corporation, which sells petroleum products, entered into a maritime oil supply service contract with Eul corporation for the supply of oil for overseas navigation vessels, and Eul corporation entered into a charter contract with Byung corporation for the supply of oil for overseas navigation vessels, Eul corporation's representative Byung, forged a receipt to the effect that Eul corporation's oil supplied to Gap corporation was supplied with the oil for the supply of oil for overseas navigation vessels, and then supplied Gap corporation with a certificate of carrying-in of exported goods for refund; Gap corporation was entitled to refund customs duties, etc. paid upon the import of oil on its basis; and the head of the competent customs office imposed customs duties, etc. on Gap corporation pursuant to Article 21 (1) 3 of the former Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export (amended by Act No. 8233 of Jan. 11, 2007). Thus, although Eul corporation's representative did not know or did not participate directly in any unlawful act, the exclusion period for imposition of customs duties prior to 2014.

[1] Article 21(1) of the former Customs Act (Amended by Act No. 10424, Dec. 30, 2010) / [2] Articles 21(1) and 47(1) of the former Customs Act (Amended by Act No. 10424, Dec. 30, 2010); Articles 4 subparag. 4 and 21(1)3 of the former Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export (Amended by Act No. 8233, Jan. 11, 2007); Article 2(4)1 of the former Enforcement Rule of the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export (Amended by Ordinance of the Ministry of Strategy and Finance No. 555, Apr. 23, 2007)

EEE Energy Co., Ltd. (Law Firm Rate, Attorneys So-young et al., Counsel for the plaintiff-appellant)

Head of Ulsan Customs Office (Attorney Seo-young et al., Counsel for the defendant-appellant)

Busan High Court Decision 2009Nu942 decided July 24, 2009

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Article 4 Subparag. 4 of the former Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export (amended by Act No. 8233 of Jan. 11, 2007; hereinafter “the Refund Special Act”) and Article 2(4)1 of the former Enforcement Rule of the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export (amended by Ordinance of the Ministry of Strategy and Finance No. 555 of Apr. 23, 2007; hereinafter “Enforcement Rule of the Refund Special Act”) stipulate the refund amount as one of the “export for which customs duties, etc. levied on raw materials for export can be refunded” and Article 2(4)3 of the former Enforcement Rule of the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export can be collected from a person who has received a refund of customs duties, etc. under Article 47(1)3 of the Customs Act.

Meanwhile, Article 21(1) of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010) provides that “Customs duties shall not be imposed after the lapse of two years from the date on which the relevant customs duties may be imposed: Provided, That in cases falling under any of the following subparagraphs, no customs duties shall be imposed after the lapse of five years from the date on which the customs duties may be imposed,” and subparagraph 1 provides that “where customs duties are evaded or refunded by illegal means.”

B. In full view of the evidence of employment, the lower court acknowledged that: (a) the Plaintiff entered into a maritime oil supply service contract with the ocean oil supplier, etc. (hereinafter “shore oil, etc.”) to supply oil to an overseas navigation vessel; (b) the Plaintiff entered into a charter contract with Nonparty 1, a vessel oil supplier to supply oil to an overseas navigation vessel; and (c) Nonparty 2, a representative of Nonparty 1, supplied the Plaintiff with oil more than the actual oil supply volume to an overseas navigation vessel; and (d) sold the instant oil to the Republic of Korea from September 25, 2002 to June 7, 2004; and (e) issued a certificate of special exemption from the head of Busan Customs Office to the Plaintiff on the grounds that the Plaintiff received from the Plaintiff on the grounds that the Plaintiff’s aforementioned special exemption from customs duties under Article 14 of the Enforcement Rule of the International Navigation Act was forged to the effect that the instant oil was normally supplied to an overseas navigation vessel; and (e) issued a certificate of special exemption from customs duties under Article 204 of the International Navigation Act to June 14, etc.

Based on the aforementioned factual basis, the lower court determined that each of the dispositions of the instant case was unlawful since the Plaintiff did not know that Nonparty 2 illegally shipped the instant oil into the Republic of Korea and forged the receipt of the instant oil and the certificate of bringing-in, and that the Plaintiff was not involved in the Nonparty 2’s unlawful act. Thus, the Plaintiff cannot be deemed to have received customs duties, etc. on the instant oil as “illegal method” under Article 21(1)1 of the Customs Act, and therefore, the period for exclusion of customs duties, etc. on the instant oil is not five years but two years, respectively, on the ground that the period for exclusion of customs duties, etc. on the instant oil is not its original two years.

C. However, we cannot accept the judgment of the court below for the following reasons.

The main text and proviso of Article 21(1)1 of the Customs Act, and the legislative intent thereof, in order to determine the legal relationship of customs duties early, in cases where there is an unlawful act such as reducing the exclusion period of customs duties to two years, making it difficult to detect the fact of taxation, or forging the fact of refund requirements, etc., and it is difficult to expect an early exercise of the imposition right as it is difficult for the tax authority to find out the fact of omission, and thus, it is difficult to expect an early exercise of the imposition right. Thus, the "illegal method" in this context includes not only the unlawful method done by the taxpayer himself/herself but also the unlawful method committed by the taxpayer, such as the agent or performance assistant, etc. who obtains the benefit of expanding the scope of the relevant act by entrusting him/her with the management of the relevant

According to the reasoning of the judgment below and the records, since the plaintiff requested oil supply services to the oil station, etc. to the oil station, and accordingly, the oil station oil supply service again to the non-party 1 corporation, the non-party 1 corporation can be deemed as the plaintiff's performance assistant. Thus, in the process of supplying the oil of this case to the oil station, the non-party 1 corporation did not know of, or did not directly participate in, the illegal act in the judgment of the court below in the process of receiving a receipt and a certificate of entry, the non-party 1 corporation's imposition period of customs duties, etc. to recover the oil of this case shall be five years pursuant to Article 21 (1) 1 of the Customs Act, unless there are other special circumstances.

Nevertheless, the lower court, without examining and determining whether Nonparty 1 was the Plaintiff’s performance assistant, concluded that the exclusion period for each of the dispositions of this case was two years solely for the reasons indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on Article 21(1)1 proviso of the Customs Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

2. Conclusion

Therefore, without examining the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)