Whether the act of a manager of X-EX sells duty-free goods to a person subject to tax exemption constitutes a crime of evasion of customs duties and defense cells.

In full view of the provisions of Articles 9(1) and (2), 8(1), and 8(4) of the Act on Special Cases of the Provisional Cases of the Customs Duties, etc. Following the Implementation of Agreement under Article IV of the Mutual Defense Treaty between the Republic of Korea and the United States of America, the manager of X-EX shall be recognized and regulated by the military authorities of the United States of America. The act of selling duty-free goods to non-tax-free persons shall not constitute crimes under Article 9 of the Act or Articles 180 of the Customs Act and Articles 13(1) and 5(1) of the former Defense Tax Act.

Article 180 of the Customs Act, Article 13 of the Defense Tax Act (Abolition), Article 5 of the same Act, Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America, Article 8 of the Act on Special Cases Concerning the Provisional Cases of Customs Duties, etc. following the Implementation of Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America, Article 9 of the

Defendant

Defendant

Government Branch of Seoul District Court (89 High Court Decision 349 delivered on January 1, 200)

The judgment of the court below is reversed.

The defendant shall be innocent.

The gist of the defendant's appeal Nos. 1 is that even if the defendant sold tax-free goods to a non-tax-free person, the court below found the defendant guilty despite the violation of the U.S.A. X-ray management regulations and it cannot be seen as a violation of the Customs Act or the Defense Tax Act. Thus, the judgment of the court below is erroneous in the misapprehension of legal principles which affected the conclusion of the judgment. The second point is that all the counter-party who sold the defendant's duty-free goods are foreign tourists visiting the military unit, and there is no domestic tourists, and the defendant deposits all the sales proceeds into the military authorities of the U.S., so it does not evade customs duties and defense taxes, and even if it is not so, half of the sales proceeds of the defendant's goods are sold to the foreign tourists who sold the duty-free goods, the court below recognized the total sales proceeds of the above goods to be sold to the non-tax-free person, and found the defendant guilty by evading customs duties and defense taxes without evidence, which affected the judgment of the court below.

First, according to the reasoning of appeal No. 1, the court below found the defendant guilty as to the charges of this case by taking into account the following facts: (a) from June 1, 1983 to July 10, 1986, the defendant worked as a ec.x manager from the eckp kp (P.X) camp of 2 US Forces No. Kawon-gun in Gangwon-do; (b) from April 1986 to June 10, 1986, the above XE only sold goods to foreign tourists, who are non-tax-exempt persons, but have been selling goods to the above ec.g., non-tax-free persons; and (c) keeping the nb loan card in cash register as if they sold other goods which do not require the nb lending card; and (d) applying the tax-free ec.g., the price of the ec., the ec., five Kate radio and 33 Do 27,169,920 won.

However, to establish a crime of evading customs duties and taxes prescribed in the above provision of this Act, a person who is not a taxpayer of duty or a taxpayer of duty payment shall be the case where he evades all or part of the customs duties and defense taxes in collusion with the taxpayer by deceit or other unlawful means. According to the Act on Special Cases Concerning Facilities and Areas of United States Armed Forces in the Republic of Korea and the Implementation of Agreement between the Republic of Korea and United States Armed Forces, the non-tax-exempt goods are exempted from customs duties (including the goods manufactured by using the goods concerned or by-products thereof) within the Republic of Korea (including those which are carried by the taxpayer of duty exemption or delivery for the purpose of arranging such transfer; hereinafter the same shall apply) by a person who is not a taxpayer of duty exemption and who is not a taxpayer of duty exemption and customs duties pursuant to the above provision of Article 8 (1) of the Customs Duties Act shall be deemed to be exempted from customs duties and the provisions of Article 8 (1) of the Customs Duties Act, and if such goods are acquired by a person who is not a taxpayer of duty exemption and customs duty exemption, the same shall not apply.

Therefore, the court below which found the defendant guilty of the facts charged of this case has affected the judgment by misunderstanding the legal principles, and therefore, it is reasonable to discuss the remaining grounds for appeal without having to determine the remaining grounds for appeal, and thus, it reverses the judgment of the court below under Article 364 (6) of the Criminal Procedure Act

The summary of the facts charged in the instant case is as seen earlier, but as determined in the grounds for reversal, it constitutes a case where the duty and defense tax are not committed, and thus, the Defendant is acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

Judges Kim Jong-soo (Presiding Judge)