Defendant 1 and one other

Defendants and Prosecutor

Republic of Korea (hereinafter referred to as "Korea")

Attorneys Han Han-chul et al.

Seoul District Court Decision 2003Gohap252 Delivered on July 30, 2003

1. The judgment below is reversed.

2. Defendant 1 is punished by a fine of KRW 30,00,000, and Defendant 2 is punished by a fine of KRW 10,000,00, respectively.

3. In a case where the Defendants did not pay the above fine, the Defendants shall be confined in a workhouse for the period calculated by converting the amount of KRW 50,000 into one day.

4. Number of detention days prior to the pronouncement of the lower judgment, twenty nine days for Defendant 1, and seven days for Defendant 2, respectively, shall be included in the period of detention in the workhouse.

5. The Defendants not guilty of the crime of smuggling among the facts charged in the instant case

1. As to the concept of return

Article 269(3)2 of the former Customs Act (amended by Act No. 6777, Dec. 18, 2002; hereinafter “former Customs Act”) provides that a person who reported the return of goods different from the returned goods and returned goods shall be punished by imprisonment for not more than three years or by a fine not exceeding the cost of the relevant goods. Article 2 of the former Customs Act defines the concept of “return” and does not stipulate the concept of “return.” However, under the interpretation of the Customs Act, the concept of “return” means sending goods from a foreign country to a foreign country without importing goods into the Korean bonded area. Accordingly, it cannot be seen that the Defendants’ assertion that “return” in the “Public Notice on Return Procedures”, which is a subordinate law of the former Customs Act, should not be construed as either a violation of the former Customs Act or a violation of the former Customs Act, which provides for “the return of foreign goods (except for the acceptance of export declaration) to a foreign country.” Thus, the Defendants’ assertion that the concept of “return of goods to the foreign country” can not be accepted.

2. As to the return declaration of the returned goods and other goods

A. This part of the facts charged

피고인들은 대만 등지로부터 품명을 “MOTOR GASOLINE”으로 허위기재하여 보세창고로 반입한 엠티비이(MTBE : Methyl Tertiary Butyl Ether)를 일본으로 반송신고함에 있어, 품명 허위기재 사실을 감추기 위하여 반입시 품명 그대로 “MOTOR GASOLINE”으로 기재하여 반송하기로 마음먹고, 2001. 7. 5. 수원세관 평택출장소에서 보세창고에 보관중이던 엠티비이 673,331킬로리터에 대해 일본으로 반송신고를 함에 있어, 품명을 “MOTOR GASOLINE”으로 기재하고 그와 같이 기재된 선하증권, 송품장, 사유서 등을 제출하여 반송신고 후, 같은 달 7. 평택항 출항 챌린져호에 적재시켜 일본으로 반송하는 등, 위 일자부터 2001. 12. 19.까지 같은 방법으로 원심판시 별지 범죄일람표 (Ⅱ) 기재와 같이 합계 23회에 걸쳐 엠티비이 합계 16,635.178킬로리터 물품원가 합계 5,222,927,520원 상당을 당해 반송 물품과 다른 물품으로 신고하는 방법으로 반송하였다.

B. The judgment of the court below

In filing a return declaration, the Defendants must report the original form and nature of goods stored in a bonded area at the time of filing the declaration. The Defendants’ filing a return of IM as gasoline for automobile use (MTR GAOSINE) with the Defendants when shipping IMF out of a bonded area constitutes a crime of smuggling export and import by being reported as different goods even if IMF is mixed with gasoline for automobile use in a ship after shipping IMF into a bonded warehouse.

C. The judgment of this Court

(1) The record of this case reveals the following facts.

(A) Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) is a company that completed the registration of incorporation on August 26, 1998 for the purpose of the export and import of petroleum products, the wholesale and retail business of petroleum products, etc., and Defendant 1’s representative director, and the division chief of the International Team. The oil refining company is equipped with 5-6 oil refining facilities, such as constant voltage and pressure identification facilities, and sulfur facilities, and may manufacture and manufacture various petroleum products and petrochemicals, such as gasoline and oil, etc., by refining and selling petroleum products or petrochemicals after importing petroleum half-finished products and selling them through multiple processes. Since the petroleum export and import company is a petroleum company, it is impossible for Nonindicted Co. 1 to sell petroleum products by importing and refining petroleum products or by importing petroleum half-finished products and manufacture and manufacture various petroleum products and petrochemicals, but it imports and sell them in the Republic of Korea, such as gasoline, diesel products, and finished products, such as gasoline, etc., which have been already manufactured from a foreign country.

MTTB contains a source of oxygen as a compound produced by reaction of Ethylethylene and Methol, and is used for gasoline blocks for the purpose of reducing the generation of nitrogen oxides, sulfur oxide, etc.

(B) From January 1, 200, the Ministry of Environment strengthened the oxygen content (MTBE content measurement) from “1.3 to “1.3-2.3” to “1.3” among the gasoline quality standards for automobiles under the Clean Air Conservation Act. From December 1, 2000, the Ministry of Commerce, Industry and Energy also strengthened the content of gasoline for automobiles to “0.5-2.3” and “1.3-2.3” to “1.3” to “1.3-2.3.” The oil companies imported crude oil and produced gasoline for automobiles meeting the above quality standards, or imported and sold it directly by mixing it with IM-free gasoline for automobiles that meet the above quality standards. At the time, Nonindicted Company 1 imported gasoline from 1600 and 300, and supplied it to 1600 and 3000, and supplied it to 50,0000,0000 among the domestic gasoline and 1.300.

The Defendants concealed the fact that Nonindicted Company 1, other than oil refining companies, added IMV to pseudo petroleum products as stipulated in Article 26 of the Petroleum Business Act and thus, did not violate the Petroleum Business Act. The Defendants brought IMV into luxan by Nonindicted Company 2 (Maritime Freight Brokers), etc., and entered IMV into the UNLED MDA MDA MAOS for customs clearance from Non-Party 2 (UNCLOS). Nonindicted Company 3, a subsidiary company of Nonindicted Company 1 (hereinafter “Non-Party 3”), filed a bill of lading entry report in accordance with Article 157 of the Customs Act, and filed a declaration in accordance with Article 157 of the Customs Act.

(C) From August 24, 200 to July 26, 2002, the Defendants, without obtaining permission from the head of a customs office, manufactured gasoline in conformity with the domestic quality standards, mixed with three different goods, such as gasoline, IMB, and yeast, stored in a bonded warehouse from August 24, 2000 to July 26, 200, and brought them into the Republic of Korea after filing an import declaration under Article 241(1) of the former Customs Act, along with a false bill of lading copy, invoice copy, etc.

(D) On the other hand, from July 2001, the Defendants made an export (Oily Mixure Inc.) of Austria, a non-indicted 4 corporation (Gaia Enigy Inc., Non-indicted 4 corporation) that imports the mixed bulk fuel into the Japanese market, which is a non-indicted 4 corporation. The Defendants demanded the non-indicted 1 corporation to submit the mixture ratio of each material and the manufacturing method to the non-indicted 1 corporation’s shipment to the non-indicted 4 corporation, which is used in Japan as a combination of two kinds of gasoline for automobiles used in Japan, to manufacture them (Oily Muxure Inc., No. ntha) and then to export them (the domestic goods are not returned abroad under the Customs Act because they were not transported strictly). The non-indicted 1 corporation was able to mix the same with the mixture of alcohol tank to the non-indicted 1 corporation’s ethyl storage tank in the non-indicted 4 commercial bonded area, which was separated from the shipment tank in the non-indicted 1 corporation.

As examined in the above paragraph (b) above, Nonindicted Company 1 reported MTER GASINE as “MTASINE” in order to conceal the fact that MTF is imported. As such, Nonindicted Company 1 reported MTF to Nonindicted Company 4 on the return declaration to the office of Pyeongtaek, while exporting the Gu residents to the Gu residents, and filed a return declaration to the office of Pyeongtaek.

(E) Nonindicted Company 1 entered the name name in the commercial invoice as rush rush (UNFCCC 308 pages) (in the investigation record, referring to the return declaration document attached to not more than one right 308 pages and two copies attached to three copies of the trial records). Nonindicted Company 4 entered the name of the foreigner in the import license in Japan (see, e.g., evidence 19 attached to the investigation record in Japan). Nonindicted Company 1 did not have any fact that the MT was exported (return) only to Japan.

(F) From April 5, 2002 to March 3, 2011, Nonindicted Company 1 obtained a license for the establishment of a bonded factory in which he/she produces petroleum products (standings of MGGAS and MOTR GTRGGINE) by using gasoline semi-finished products, double propopopoppy, and double-ethyl alcohol. Nonindicted Company 1 is exporting (return) to Japan after mixing luxin in the above bonded factory rush by mixing luxin with IM, double-py alcohol, and double-ethyl alcohol. Since the period was set from April 5, 2002 to March 3, 201, the period was set by the head of Pyeongtaek-si, Nonindicted Company 1 was returned to Japan by using materials, such as gasoline-finished products, double-site alcohol, and double-ethyl alcohol. Since there was no name of lux in the customs classification table, Nonindicted Company 1 returned to Korea.

(2) In a case where an operator of a bonded area intends to ship goods into a bonded area, he/she shall file a declaration of shipment with the declaration stating the name, port of entry, port of entry, port of loading, port of loading, port of loading, port of loading, port of loading, port of loading, port of loading, port of loading number of bills of lading or air waybill number, port of loading and port of loading, port of loading and port of loading, port of loading and port of loading, port of loading and port of loading, port of loading and port of loading, port of loading and port of loading, port of loading and port of loading, port of loading and port of loading, number of shipment and location of the goods. In addition, as mentioned above, a person who violates Article 157(1) of the former Customs Act shall file a declaration of shipment with the declaration number, date and time of shipment, type of shipment and base number of shipment, shipment number, number of shipment and weight of shipment pursuant to Article 157(1) of the former Customs Act.

(2) Where an owner of goods or a licensed customs broker, etc. intends to return goods, he/she, etc. shall file a return declaration in a manner of filing a return declaration stating the kind, number, number, etc. of packages and the name, standard, quantity, and price of the relevant goods in accordance with Articles 241 (1), 242 (Declaration on Export, Import, Return, etc.) and 243 (Requirements for Declaration) and 245 (Declaration on Export, Import, Return, etc.) and Article 246 (Declaration on Export, Import, or Return) of the former Enforcement Decree of the Customs Act only where the relevant goods are stored in a storage place prescribed by the Customs Act. The detailed procedure for the return declaration shall be governed by the "Publication on Procedure for Return," published for the purpose of providing for the guidelines for the customs control of goods returned to a foreign country after shipping them into a Korean bonded area. Article 15 of the Public Notice on Procedure for Return shall apply mutatis mutandis to matters not prescribed in the Public Notice on Procedure for the Return of Goods.

Article 269(3)2 of the former Customs Act provides that a person who exports or returns goods different from those on which a declaration is filed under Article 241(1) and (2) of the former Customs Act shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding the cost of the relevant goods. In certain cases, Article 6(3) and (6)3 of the Act on the Aggravated Punishment, etc. of Specific Crimes is subject to aggravated punishment under Article 241(1) of the former Customs Act. Meanwhile, in filing a declaration under Article 241 or 244 of the former Customs Act, a person who fails to report or files a false declaration shall be punished by a fine not exceeding the higher amount between the cost of the relevant goods or the cost of the relevant goods pursuant to Article 276(1)4 of the former Customs Act (Crime of False Declaration, etc.).

(3) As seen earlier, it is difficult to view that Nonindicted Co. 1 entered into an export contract with Nonindicted Co. 4 as the crime of return of the goods (i.e., e., e., e., e., g., e., e., e., e., g., e., g., e., e., g., e., e., g., e., e., g., e., g., e., e., g., e., g., e., e., g., e., g., e., g., e., g., e., g., e., g., e., g., g., e., g., e., g., g., e., g., e. g.)., g. g., e.).

(4) Article 243(2) of the former Customs Act provides that “The declaration of return under Article 241(1) may be filed only when the relevant goods are stored in a storage place prescribed by this Act.” It is reasonable to interpret that the time of the declaration of return is the same as the time of the declaration. A prosecutor asserts that the declaration of return must be filed in terms of the nature and nature of the goods stored in the bonded area at the time of the declaration for the management of the goods in the bonded area. However, since the declaration of shipment under Article 157(1) of the former Customs Act is for the management of the goods in the bonded area, the declaration of shipment is filed based on the nature and nature of the goods in the bonded area. However, since Article 269(3)2 of the former Customs Act imposes criminal punishment for the act of returning goods different from the goods actually returned, it is reasonable to determine the elements

(5) In conclusion, the Defendants, upon obtaining a license for the establishment and operation of a bonded factory from the head of a customs office, exported Austrias by mixing them with the luxane alcohol and ethyl alcohol in a bonded factory, without obtaining a license for the establishment and operation of a bonded factory, even though they are required to return them, and without obtaining a license for the establishment and operation of a bonded factory. The reprimand against such unlawful mixing cannot be punished on the ground that the returned goods were reported as different goods. The judgment below convicting this part of the judgment below is unreasonable.

3. Amendment of provisions for concurrent crimes;

Article 37 of the Criminal Act, which applies to Defendant 1, was amended into “a crime for which judgment has become final and conclusive” and “a crime for which judgment to be sentenced to imprisonment without prison labor or more severe punishment has become final and conclusive.” The judgment of the original court that sentenced two punishments by applying the previous provisions before

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided including the grounds for appeal on unreasonable sentencing by the Defendants and the prosecutor.

The contents to be explained by this court are the same as the contents of each relevant column except for revision of the criminal facts and the summary of evidence of the judgment below as follows. Thus, they are quoted as they are in accordance with Article 369 of the Criminal Procedure Act.

(1) On December 11, 200, Ulsan District Court issued a summary order of a fine of 500,000 won due to a violation of the Labor Union and Labor Relations Adjustment Act at the Ulsan District Court on December 11, 200 and deleted the above summary order on January 23, 201 and the first head of the Eleventh reduction.

(2) Attached Table 1 (I) shall be changed to “the list of crimes”.

(3) Paragraphs (2) and attached Table (Ⅱ) of the facts of the crime shall be deleted.

(4) In the summary of evidence, “1. Criminal records of Defendant 1 and records of investigation report (the confirmation of the fixed date)” shall be deleted.

1. Article applicable to criminal facts;

o Change of the original form of goods stored in each bonded area as stated in the separate sheet Nos. 1 and 2 of the Defendants’ list of crimes: Articles 188(3)2, 69-2(2) and (1) of the former Customs Act (wholly amended by Act No. 6305 of Dec. 29, 200), Article 30 of the Criminal Act

o Change of the original form of goods stored in each bonded area as stated in the separate sheet Nos. 3 through 13 by the Defendants: Articles 276(3)3, 159(2) and (1) of the former Customs Act (amended by Act No. 6777 of Dec. 18, 202); Article 30 of the Criminal Act

1. Aggravation of concurrent crimes;

The sum of fines prescribed for each crime under Article 194(1) of the former Customs Act (wholly amended by Act No. 6305 of Dec. 29, 2000) and Article 278(1) of the former Customs Act (wholly amended by Act No. 6777 of Dec. 18, 2002)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Code

1. Calculation in the number of detention days before sentencing;

Article 57 of the Criminal Code

The facts charged as to the crime of smuggling against the Defendants are as stated in Paragraph (a) above 2. However, the above facts charged constitute a case where there is no proof of crime as seen earlier, and thus, the Defendants are acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Judges Cho Jong-dae (Presiding Judge)