Where the failure to export was determined at the time of retirement of the representative director, whether the retired director is responsible for failure to export

In cases where the goods for which the effective date of the credit has already arrived at January 8, 1983 at the time of retirement of December 3, 1982 are confirmed to be impossible to perform export within the said date, the representative director shall be held liable for the failure to perform export as stipulated in Article 33 subparag. 5 and Article 29 subparag. 2 of the Trade Act for the above goods for which the effective date of the credit has already arrived after retirement of the representative director

Article 29 subparag. 2, and Article 33 subparag. 5 of the Trading Business Act

Defendant 1 and one other

Defendants

Seoul Criminal Court Decision 83No4013 delivered on November 3, 1983

All appeals are dismissed.

The number of detention days after an appeal shall be included in each original sentence for 70 days.

1. Defendant 1’s ground of appeal is examined.

(1) Fraud

Upon examining the evidence cited by the court below in light of the records, the defendant, as the representative director of the non-indicted 1 corporation, who is the exporter and importer company, in collusion with the non-indicted 2, who is the vice-director of the trade department of the company, opened a local letter of credit in the name of the non-indicted 1 corporation, and prepared a false certificate of acceptance that he received raw materials from the non-indicted 2 corporation, and let the company sell the bill of exchange to the non-indicted 1 corporation with the above certificate of acceptance attached to the joint branch of the Seoul Trust Bank, and the above certificate of acceptance was just, and the above certificate of acceptance was borrowed from the new staff of the above joint branch of the above bank to the non-indicted 1 corporation, and therefore, it is sufficiently recognized that the fact that the above bill of exchange was settled

The issue is that lending of funds for purchase of raw materials for export to the local letter of credit to the extent of credit guarantee regardless of whether it is false or not the above certificate of acquisition of goods is common customs, and the defendant is guilty despite the fact that there is an error of law by misunderstanding the legal principles on trade customs, trade law, and criminal intent of fraud, and in violation of the principle of equality. However, even after examining the record, there is no evidence to prove that commercial customs such as theory has been established. Therefore, the theory of lawsuit is merely an error of the determination of facts by the court below, and it is not reasonable to find the illegality such as theory of lawsuit.

(2) Violation of the Trading Business Act

According to the facts duly established by the court below, at the time of the defendant's retirement of the representative director of non-indicted 1 corporation on December 3, 1982, the goods for which the effective date of the credit comes in January 8, 1983 also became final and conclusive as an impossible export performance within the designated date. Thus, the court below's decision is just in holding that the defendant is liable for non-export obligations under Article 33 subparagraph 5 and subparagraph 2 of Article 29 of the Trade Act as to the above goods for which the effective date of the credit comes after the retirement of

(3) In the instant case where the lower court’s sentencing is excessive, or where a sentence less than 10 years’ imprisonment is imposed, an unreasonable sentencing sentence cannot be deemed a legitimate ground for appeal in light of the provisions of Article 383 subparag. 4 of the Criminal Procedure Act, and thus, the said argument is groundless.

2. Defendant 2’s ground of appeal is examined.

According to the evidence cited by the court below, the credit which the defendant received from the non-indicted 1 as the representative director of the non-indicted 1 corporation and received from the non-indicted 1 corporation, is not able to sell the export bill of exchange prior to collection to the bank due to the defects such as the contents of the credit, and it is sufficiently recognized that the non-indicted 1 Corporation employees of the non-indicted 1 Business Co., Ltd., knew that they would sell the export bill of exchange under the above credit prior to collection to the bank and deceiving them as if they would be paid the price, and that they had taken over the goods and acquired them by fraud. There is no error in the course of the evidence preparation, and there is no error in the misapprehension of legal principles such as the theory of lawsuit.

In addition, according to the facts duly established by the court below as to the violation of the Trading Act, the defendant was the representative director of the existing trade company, which is an exporter or importer, and failed to perform export within the effective date of each credit, so the court below's decision that applied Article 33 subparagraph 5 and Article 29 subparagraph 2 of the Trading Business Act to the above so-called "the defendant is just and there is no ground to argue that the above credit was unilaterally established by the importer.

3. Therefore, all appeals by the Defendants are dismissed, and 70 days of detention days prior to the imposition of judgment shall be included in each original sentence. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)