[1] The meaning of "the principle of clarity" derived from the principle of no punishment without law and the method of determining whether legal norms violate the principle of clarity

[2] Whether Article 246 (1) 5 of the Enforcement Decree of the former Customs Act, which provides for "the business registration number and customs clearance code" as the declaration item at the time of import of goods, requires a taxpayer to report his/her business registration number, etc. (affirmative)

[1] The principle of clarity, which is derived from the principle of no crime without the law, means that anyone can anticipate what is the act in order to punish and what punishment is, and therefore clearly define the elements of a crime so that anyone can determine his act. However, even though the elements of a punishment law must be clear, it does not require a simple descriptive concept, and even if a person who has a sound common sense and ordinary legal sentiment by ordinary interpretation methods uses the concept that requires a supplementary interpretation of judge, if he uses it, he would be able to understand the protected legal interest of the punishment law in question, and the kind and degree of the act prohibited from the punishment and the punishment, it does not go against the clarity of the punishment law. In addition, whether a certain legal norm is clear or not, it can be reasonably determined by the legislative purpose or method of interpreting and executing the law, and the meaning of the law can be reasonably determined by the legislative purpose or method of reasonably considering the contents of the law as well as the legislative purpose or method of interpreting and executing the law.

[2] Article 246(1)5 of the former Enforcement Decree of the Customs Act (amended by Presidential Decree No. 24373, Feb. 15, 2013) provides for "business registration number and customs clearance code" as the declaration at the time of import of goods. In general, in a case where there is a difference between the person who declared the import of goods and the person who actually bears the duty to pay for the import of goods due to the lease of the name of the import declaration, it is reasonable to view that the person who actually imports the goods, i.e., the person who actually imports the goods, separate from the person who made the declaration in form, in order to ensure the proper imposition and collection of customs duties and customs clearance of the imported goods and secure the import of customs duties. Accordingly, the above provision of the Enforcement Decree provides for the person who is the owner of goods to report the business registration number, etc. for the specific purpose of the person liable for duty payment on the premise of such duty to report. Such interpretation can reasonably grasp the meaning by means of ordinary interpretation, and it cannot be construed as violating the principle

[1] Article 12(1) of the Constitution, Article 1(1) of the Criminal Act / [2] Article 12(1) of the Constitution, Article 1(1) of the Criminal Act, Article 19(1)1, Articles 241(1), 242, 269, 270, and 276(1)4 of the former Customs Act (Amended by Act No. 11602, Jan. 1, 2013); Article 246(1)5 of the former Enforcement Decree of the Customs Act (Amended by Presidential Decree No. 24373, Feb. 15, 2013)

[1] Supreme Court Decision 2006Do920 Decided May 11, 2006 (Gong2006Sang, 1097) Supreme Court Decision 2012Do4637 Decided September 27, 2012 (Gong2012Ha, 1772)

Defendant 1 and one other

Defendant 1 and Prosecutor

Law Firm East Asia SPS, Attorneys Lee Gyeong-soo

Busan District Court Decision 2013No1938 Decided October 11, 2013

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

Examining the record in light of the relevant legal principles, it is justifiable for the lower court to have found Defendant 1 guilty of violating the Customs Act due to the evasion of dispositions on default among the facts charged in the instant case against Defendant 1 on its grounds as stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors of misapprehending the legal principles on the evasion of dispositions on default under

2. As to the Prosecutor’s Grounds of Appeal

A. The principle of clarity, derived from the principle of no crime without the law, means that anyone can predict what the law intends to punish and what punishment is, and that clearly prescribes the elements of a crime so that anyone can determine his/her act accordingly. However, even though the elements of a punishment law must be clear, it does not require a simple descriptive concept, and even if a person who has a sound common sense and ordinary legal sentiment by ordinary interpretation methods uses the concept that requires complementary interpretation of judges, if he/she uses the concept that requires a broad range of interpretation, it does not go against the clarity of the punishment law if he/she allows him/her to know the protected legal interests of the punishment law in question and the kinds and degree of prohibited acts and punishment. In addition, whether a certain legal norm is clear or not, it can be reasonably determined by the legislative purpose or method of interpreting and executing the law in a way that allows him/her to know the meaning of the law, and the meaning of the law can be reasonably determined by the legislative purpose or method of interpreting and executing the law (see, e.g., whether it can be determined by the legislative purpose or method of interpreting the law.

B. As to the facts charged in the instant case against the Defendants, the lower court determined that: (a) the Defendants conspired with Defendant 1 and Defendant 2, a director of the “○○○○○○,” and Defendant 1 filed an import declaration with the Busan Customs Office over 34 times, despite the fact that Defendant 1 was the actual owner of the Han River imported from China; and (b) reported the business registration number to the “○○○○○○,” and that “the business registration number was falsely reported to the “○○○○,”” the lower court acquitted Defendant 1 of the facts charged; (c) Article 241(1) of the former Customs Act (amended by Act No. 11602, Jan. 1, 2013; hereinafter the same) and Article 246(1) of the Enforcement Decree of the former Customs Act (amended by Presidential Decree No. 24373, Feb. 15, 2013; hereinafter the same) on the grounds that it did not explicitly state “taxpayer subject to tax reporting” and interpreted it as a person’s provision on the grounds for punishment.

C. However, the above judgment of the court below is not acceptable.

The former Customs Act provides that a person who imports goods without filing an import declaration shall be punished for smuggling (Article 269), and a person who files a false declaration on matters that affect the determination of the amount of customs duties, tax rates, etc. even when filing an import declaration, shall be punished by imprisonment with labor or a fine for the crime of evading customs duties (Article 270). On the other hand, a person who files a false declaration on incidental matters, etc. that do not affect the determination of the amount of customs duties shall be punished by fines (Article 276). The legislative system of penal provisions under the former Customs Act is understood as having the intent to punish a false declaration on the reported matters under the Customs Act even if the person files a false declaration on important matters that affect the determination of the amount of customs duties or the determination of the amount of customs duties.

Meanwhile, Article 246(1)5 of the former Enforcement Decree of the Customs Act, which provides for matters to be reported at the time of the import of goods by delegation of Article 241(1) of the former Customs Act, stipulates that “the business registration number and customs clearance clearance code” shall be reported under subparagraph 5 of Article 246(1) of the former Enforcement Decree of the Customs Act. However, the same does not stipulate the business registration number and

However, Article 242 of the former Customs Act provides that "the declaration under Article 241 shall be filed in the name of the owner of goods or a licensed customs broker, etc." and Article 242 of the former Customs Act provides that "any person who falls under any of the following subparagraphs shall be liable to pay customs duties" under Article 19 (1) 1 of the former Customs Act provides that "the owner of goods who imports the goods shall be the owner of the goods who imports the goods." Here, "the owner of the goods who imports the goods" refers to the actual owner of the goods, and the determination of whether the goods are the actual owner of the goods shall be made by taking into account the following circumstances: the method of participating in the import procedure such as negotiation with the exporter, the method of disposal and sale of the imported goods in the Republic of Korea, the actual status of the imported goods, and the ownership of profits accrued therefrom, and Article 19 (1) 1 of the former Customs Act provides that "the owner of the goods shall be a person liable to pay customs duties" under Article 19 (1) of the former Customs Act.

In full view of the aforementioned legal principles and the aforementioned legislative structure, Article 246(1)5 of the Enforcement Decree of the Customs Act provides for “business registration number and customs clearance code” as the declaration at the time of import of goods in substitution for different cases where there is a difference between the person who has filed an import declaration for the goods and the person who has actually been liable for the payment of customs duties due to the lease of the name of import declaration, etc. as in this case, it is reasonable to view that the said Enforcement Decree provides for the duty to report the person who has actually imported the goods, i.e., the person who has actually been the owner of the goods, separate from the person who has filed an import declaration in form, to ensure the proper imposition and collection of customs duties and customs clearance of the imported goods and to secure customs income. Accordingly, the said provision provides for the duty to report the person who is the owner of the goods on the premise of such duty to report. Such interpretation can reasonably grasp the meaning by means of ordinary interpretation, and it cannot be said that it goes against the principle of clarity of the

Meanwhile, the Korea Customs Service’s “Public Notice on the Handling of Import Clearance Affairs” (Public Notice No. 2011-44, Oct. 31, 2011) and [Attachment No. 1-2] Article 2-1-7(4) and [Attachment No. 1-2] of the Korea Customs Service provide that the Guidelines for the Preparation of Import Declaration shall be separately entered in the import declaration by distinguishing between the importer and the person liable for duty payment from the case where the importer and the person liable for duty payment are different from the case where the importer are identical. It is also deemed that the Korea Customs Service’s provision that the importer and the person liable for duty payment shall enter the customs clearance code (in case of an individual, omitted) designated by the Commissioner of the Korea Customs Service along with his/her name and address

Supreme Court Decision 78Do201 Decided April 11, 1978 cited by the court below is a precedent prior to the amendment of the Customs Act and the Enforcement Decree of the former Customs Act as seen above, and it is not appropriate to invoke it in this case.

Nevertheless, the judgment of the court below which acquitted this part of the facts charged is erroneous in the misapprehension of legal principles as to false declaration under the Customs Act, and thereby adversely affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

D. Therefore, the part of the judgment of the court below on Defendant 1’s acquittal and the part on Defendant 2 should be reversed in its entirety. Meanwhile, as the judgment of the court below that the appeal on Defendant 1’s conviction was groundless, the part on Defendant 1’s conviction and each of the crimes that the court below found Defendant 1 guilty guilty are concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the part on Defendant 1’s conviction should be reversed together with the part on

3. Conclusion

Therefore, the entire judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)