(a) The meaning of "a person who has obtained the approval or alteration approval under Article 19 (1) by deceit or fraudulent means" under Article 68 subparagraph 5 of the Foreign Trade Act;

(b) Whether Article 68 subparagraph 5 of the Foreign Trade Act (negative) is applicable in case where the person who has received the recommendation of an agency which has no authority to obtain the recommendation has submitted to the bank with authority to obtain the approval of import by entering his name in the column of the person who has received the recommendation of import (negative

(a) “A person who has obtained approval or approval of modification pursuant to Article 19(1) through deception or other unlawful means” under Article 68 subparag. 5 of the Foreign Trade Act means a person who has obtained such approval through a deceptive scheme or other unlawful act which is considered to be unfair by social norms, even though approval of import is not possible through normal procedures.

B. In the event that salt is imported as raw materials for foreign exchange earnings, the Defendant obtained a recommendation for import from the above bank staff who believed to have obtained a legitimate recommendation for import approval in the column for the applicant for import approval after obtaining a recommendation from the “Korea leather Industry Cooperative” without the authority to obtain such recommendation, and received such a recommendation from the bank with the authority to obtain import approval by entering the same in the column for the applicant for import approval, the Defendant’s act cannot be deemed to have committed a reasonable fraudulent act to the extent that the approval authority would normally have obtained the approval authority. Thus, even if the person in charge of such approval obtained the approval by mistake due to the failure, negligence, etc. in the course of performing the approved duties, it cannot be said that the Defendant’s act constitutes “a person who obtained the approval or approval for modification under Article 19(1) by fraud or other improper means” under Article 68 subparag. 5 of the Foreign Trade Act.

Articles 19(1) and 68 subparag. 5 of the Foreign Trade Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Defendant 1 and two others

Prosecutor

Seoul Criminal Court Decision 89No4347 delivered on November 30, 1989

The appeal is dismissed.

As to the Prosecutor’s Grounds of Appeal

In light of the summary of the facts charged as to Defendant 1 and 2, where the above Defendants jointly conspired to import salt as raw materials for the use of foreign currency, they would not obtain a recommendation on import from the "Korea Lather Industries Cooperatives" despite having no authority to obtain a recommendation on import, and could be confused with the above cooperatives on the outside, the above Defendants merely obtained an application for approval on import of raw materials for foreign currency exchange purposes with the letter of promise to sell the raw materials to the Seoul Branch of the Gwangju Bank, which was entrusted with the authority to obtain approval on import from the Minister of Trade, Industry and Energy, and it would be believed that the above Defendants 3 were users of the above facts charged, and the court below should have determined that the above Defendants 1 and 2 did not obtain a recommendation on import from the "Korea Lather Industries Cooperatives" but did not have a legitimate authority to obtain a recommendation on import from the above Busan Bank, and therefore, it is clear that the above Defendants 1 and 2 did not have a legitimate application for approval on import because they did not have a legitimate authority to obtain a recommendation on import from the Busan Industrial Cooperative.

First, even if based on the health stand for Defendant 2 and Defendant 3, and all evidence submitted by the Prosecutor, it cannot be recognized that Defendant 2 committed the instant crime in collaboration with Defendant 1, and therefore, without any need to determine the grounds of appeal by the Prosecutor, the lower court’s sentence of innocence against the said Defendants is justifiable in its conclusion.

As to the following defendant 1:

Article 68 subparagraph 5 of the Foreign Trade Act "a person who has obtained approval or approval of change under the provisions of Article 19 (1) by deceit or other unlawful means" refers to a person who has obtained approval of import through a deceptive scheme or other unlawful means despite the fact that it is impossible to obtain approval of import through normal procedures (see Supreme Court Decision 84Do341 delivered on June 26, 1984). Thus, if the above defendant's act was normal and has not committed considerable misconduct to the extent that the approval authority could have obtained approval of the above act, it cannot be deemed that the above act was conducted by the person in charge due to the failure to obtain approval of the person in charge, negligence, etc. In light of the above legal principles, the judgment below against the above defendant is justifiable in light of the above legal principles.

The theory of the lawsuit is not only likely to be mistaken for the organization to which the right to import is delegated by the Korean leather Industry Cooperatives, but also for the above Busan Feather Industry Cooperative itself, because the above Busan Feather Industry Cooperative is considered to be an affiliate or unit association of the Korea Heathere Industry Cooperative, which is the person with the right to recommend the external examination. However, it is nothing more than an independent argument.

In addition, the banks in charge of import approval do not focus on reviewing whether or not the person having authority to recommend import approval is authorized in the course of performing their duties, but have an interest in examining the item name of the person having authority to request import approval, import restriction item, post-management bank confirmation, and documents attached thereto, and if the person having authority to request import approval has been entered, it is thought that the person has ordinary authority to recommend, and there is no interest in whether or not the person having authority to recommend the person having authority to do so.

The issue is groundless.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Young-young (Presiding Justice)