Whether Article 215 of the former Customs Act is unconstitutional

Article 215 of the former Customs Act (amended by Act No. 4674 of Dec. 31, 1993) is suspected of violating the principle of equality under the Constitution, the principle of guaranteeing property rights, the principle of presumption of innocence, and the principle of prohibition of excessive prohibition.

Article 215 of the former Customs Act (amended by Act No. 4674 of December 31, 1993); Articles 11(1), 23(1), 27(4), 37(2), and 107(1) of the Constitution of the Republic of Korea; Article 41(1) of the Constitutional Court Act

Yellow Papon (Law Firm International Law Office, Attorney Lee Won-chul, Counsel for the plaintiff-appellant)

Korea

With respect to the above case, a judgment on the constitutionality of Article 215 of the former Customs Act (amended by Act No. 4674 of Dec. 31, 1993) is requested.

1. Provisions of Article 215 of the former Customs Act (amended by Act No. 4674 of Dec. 31, 1993; hereinafter the same)

Article 215 of the former Customs Act provides that "in case where goods which are deemed to be confiscated in accordance with the provisions of Articles 179 through 181, and Articles 183 through 186 of the same Act are seized, the said goods shall revert to the National Treasury when four months have passed from the date on which the offender fails to leave the relevant government agencies or the offender has fled and has confiscated the goods."

2. Summary of this case

A. (1) On February 21, 1992, the Plaintiff, who was engaged in the trade business in the name of Korea-China Trade Corporation, was to import rate of 30t US dollars 48,000. On February 21, 1992, the Plaintiff opened a letter of credit with approval for import from the East Bank on the 28th of the same month, and on April 13 of the same year, roasting from China arrived at the port of Busan.

(2) On February 20, 1992, the Plaintiff also declared that roasting 30t of China will be imported into US$ 42,000. On the 28th of the same month, roasting roasting 30t of China arrived at the port of Busan, roasting 30t of China arrived at the port of Busan.

B. The head of Busan Customs Office, under the Defendant’s jurisdiction, entered the Plaintiff as a violation of the Customs Act on the grounds that there was a suspicion of the Plaintiff’s act of importing non-processed fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluorous fluor, and seized the above fluor 30t on May 18, 19

C. On the other hand, the plaintiff was indicted for violating the Customs Act on August 4, 1994, but on June 1, 1995, the appellate court rendered a judgment of innocence on the grounds that the criminal intention is not recognized by the Busan High Court, which was the appellate court, and the judgment of innocence became final and conclusive on August 11 of the same year by being sentenced by the Supreme Court to dismiss the prosecutor's appeal.

D. After the judgment of innocence became final and conclusive, the Plaintiff demanded the head of Busan Customs Office to return the proceeds from the realization of the Republic of Korea, but the head of Busan Customs Office rejected the return on the ground of Article 215 of the former Customs Act, and the Plaintiff filed a lawsuit claiming the return

3. Reasons for requesting an adjudication on constitutionality;

A. The premise of the judgment

In this case where the Plaintiff’s claim against the Defendant Republic of Korea was accepted, the benefits accrued from the disposition to revert the proceeds derived from the realization of the said proceeds to the National Treasury ought to be realized without legal grounds. Since Article 215 of the former Customs Act is based on Article 215 of the former Customs Act, if Article 215 of the same Act is constitutional, the above disposition is not based on the above provision of the Act, and thus, it is highly likely that the Plaintiff’s claim of this case may be dismissed. On the other hand, if Article 215 of the former Customs Act is unconstitutional, the above disposition to revert to the National Treasury is deemed to have been made based on the provision that is null and void, and there is no legal ground to accept the Plaintiff’

As such, the disposition to revert the proceeds from the sale of seized articles, which the Defendant Republic of Korea benefits in this case, to the National Treasury, is based on Article 215 of the former Customs Act, and thus the unconstitutionality of the above Article, and the 'unfair benefits that the Republic of Korea gains according to the unconstitutionality of the above Article,' has an impact on the conclusion of the judgment in this case. Thus, the issue of the above Article is the premise of the judgment in this case, which

B. Grounds for doubt of unconstitutionality

(1) Regarding the guarantee of property rights

Article 23(1) of the Constitution provides that "All citizens' property rights shall be guaranteed." Accordingly, the contents and limitations of the people's property rights shall be determined by Act, and even in cases where the property rights are restricted by Act, such Act shall follow the constitutional principles (Article 10, Article 11, etc. of the Constitution) and restrictions.

Article 215 of the former Customs Act provides, however, that with respect to the goods confiscated in accordance with Articles 179 through 181, and Articles 183 through 186 of the same Act, regardless of whether or not the suspect was prosecuted and found guilty, and whether or not there was a declaration of forfeiture of seized goods, it is doubtful whether or not the suspect would infringe upon his property right without any reasonable grounds by depriving the National Treasury of the suspect’s ownership of the goods in question, provided that the objective requirements are satisfied that the suspect did not leave the relevant government office or that four months have passed since they escaped.

Furthermore, Article 215 of the former Customs Act provides that a suspect who violates the Customs Act shall revert seized goods to the National Treasury immediately if he/she does not appear in an investigator for a period of four months, and does not have any provision regarding the revocation of the reversion of seized goods to the National Treasury in cases where the suspect was found not guilty, and it is suspected that the suspect’s permanent deprivation of ownership of seized goods and the fundamental infringement of his/her property right is concerned

(2) As to the presumption of innocence

Article 27(4) of the Constitution of the Republic of Korea provides the principle of presumption of innocence that "the accused shall be presumed innocent until a judgment of conviction becomes final and conclusive." This means the principle that not only the accused who has not yet instituted a public prosecution but also the accused who has instituted a public prosecution shall be treated as if the accused were not guilty, in principle, until a judgment of conviction becomes final and conclusive. The disadvantage of the accused shall be limited to the minimum extent. Therefore, it is interpreted that the principle of presumption of innocence under the Constitution applies to the accused.

However, it is doubtful that Article 215 of the former Customs Act does not infringe on the principle of presumption of innocence by providing that the ownership of a criminal suspect shall revert to the National Treasury only to the objective requirement that the criminal suspect should be more strongly protected than the criminal defendant, regardless of whether or not the judgment of conviction is finalized, by providing that the ownership of the goods shall revert to the National Treasury for a certain period of time, regardless of whether or not the criminal suspect is absent in the investigator's statement

(3) As to the principle of equality

Article 11 (1) of the Constitution provides for the principle of equality in advance of the law, "All citizens shall be equal before the law," and "equality in front of the law" is interpreted as including not only the equality in applying the law but also the equality of the law contents.

However, in general, while Article 215 of the former Customs Act provides that the owner of an article in violation of the Customs Act shall belong to the National Treasury even before the sentence of forfeiture becomes final and conclusive, so that he/she may deprive him/her of his/her ownership even before the sentence of forfeiture becomes final and conclusive, there is doubt that the owner of the article in violation of the Customs Act shall not be treated equally compared to the owner of the article in violation of the Customs Act.

(4) As to the principle of excessive prohibition

Article 37(2) of the Constitution does not guarantee the fundamental rights of the people, and it is possible to restrict the fundamental rights by law only in cases where it is necessary for the purpose of national security, maintenance of order, or public welfare. However, even in cases where restriction of fundamental rights is necessary, in the legislation of restriction of fundamental rights, the principle of excessive prohibition and the principle of prohibition of infringement of essential contents (the latter part of Article 37(2) of the Constitution) shall be respected. The principle of excessive prohibition refers to legitimacy of the purpose, appropriateness of methods, minimum damage, and balance of legal interests, and Article 215 of the former Customs Act does not violate the principle of excessive prohibition in that it is the right to property, presumption of innocence, right to equal rights, and minimum damage, which are guaranteed by the Constitution for the maintenance of order or public welfare as seen above.

Article 215 of the former Customs Act is to contribute to ① prevention of a criminal from escape and voluntary withdrawal to investigators, ② prevention of loss or damage caused by long-term storage of goods in violation of the law, and removal of inconvenience caused by long-term storage of goods in violation of the law. However, in order to achieve this legislative purpose, it is doubtful that allowing the seizure of goods in violation of the law to revert the seized goods to the National Treasury under certain objective conditions so that the ownership of the goods in violation of the law may be permanently deprived of the seized goods in violation of the law in a state where the conviction has not become final and conclusive, rather than the minimum method, it is likely that excessive method would cause excessive damage to the criminal suspect.

4. Conclusion

For the reasons stated above, Article 215 of the former Customs Act is suspected of not violating the principle of equality under the Constitution, the principle of guaranteeing property rights, the principle of presumption of innocence, and the principle of excessive prohibition. Therefore, it is so decided as per Disposition.

Judges Kim Tae-tae (Presiding Judge)