Plaintiff 1 Company and 1 (Law Firm Gyeong & Yang, Attorneys Ahn Jae-young et al., Counsel for the plaintiff-appellant)

Republic of Korea (Attorney Il-il et al., Counsel for the plaintiff-appellant)

June 14, 2005

Seoul Central District Court Decision 2002Gahap19983 Delivered on May 21, 2004

1. Of the judgment of the court of first instance, the part against the plaintiff 1 company ordering payment shall be revoked.

The defendant shall pay to the plaintiff 1 the amount of 168,308,208 won and the amount of 5% per annum from June 22, 2001 to July 12, 2005 and 20% per annum from the next day to the date of full payment.

2. All appeals by Plaintiff 2 and remaining appeals by Plaintiff 1 are dismissed.

3. Of the costs of appeal Nos. 1 and 2 between the Plaintiff Company and the Defendant, 10% is the Defendant, 90% is the same Plaintiff, and the costs of appeal by the Plaintiff Company No. 2 are the same.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 1 the amount of KRW 3,493,480,000 and the amount thereof from June 22, 2001 to the plaintiff 2, the amount of KRW 448,201,260 and the amount of KRW 5% per annum from February 10, 200 to the rendering of each of the instant judgment, and 20% per annum from the next day to the day of full payment.

Article 420 of the Civil Procedure Act, the basic facts in the column of the reasoning of the judgment of the court of first instance shall be cited as the same item as the reasoning of the judgment of this court.

2. Determination on the Plaintiff’s claim

A. Plaintiff 1’s assertion

(1) The Defendant, without distinguishing the instant green batteries from those subject to seizure at all, took measures to put up the instant bonded storage site to seal the entire five doors. In fact, the Defendant seized and stored the entire green cells of this case.

(2) Since the green batteries of this case are likely to be decomposed through the internal microbiological activities of animal herb drugs, the Defendant, through a public official in charge, has the manager of Nonparty 1, who is the proprietor of the bonded storage plant, directly or through a public official in charge, sell the green batteries and keep or deposit the proceeds in custody by selling them and delivering them to the owner, etc. by selling them for a certain period of time, which are not seized under Articles 208(1) and 211(1) of the Customs Act.

(3) Nevertheless, the Defendant neglected to keep and manage the instant green batteries for more than two years during which investigation was conducted, such as not opening the cooling storage entrance and the entrance of the cooling storage, and not confirming any corruption, in violation of the above duty of care, and thereby, caused all of the green batteries to be decomposed.

(4) Therefore, as of June 22, 2001, the Defendant is obligated to pay KRW 3,493,480,000 (=8,733.7 kilograms x 400,000) equivalent to the domestic market price of the above green batteries as of June 22, 2001, which was issued a disposition of refund of the green batteries confiscated seized by the Plaintiff Company, the owner of the instant green batteries.

B. Determination

(1) Determination as to the owner of the green cell of this case

With respect to the claim for damages of this case on the premise that the Plaintiff Company is the owner of the green cell in this case, the Defendant rejected the claim for damages of this case on the ground that the Plaintiff Company is not the owner of the above green cell, and thus, the export contract between the Plaintiff Company and the Plaintiff Company 2 is an importer when the Plaintiff Company confirms the goods and imports in Korea, the importer is a transaction at the time when the two companies would confirm the goods and then settle the credit after the transfer of the price or the ex post facto payment. While the Plaintiff Company was trying to take the procedure for customs clearance of the green cell in this case on the basis of the bill of lading delivered by the Plaintiff Company, the Incheon Customs refused to accept the bill of this case on the ground that the Plaintiff Company received the bill of this case from the Plaintiff Company's holder of the bill of this case on the ground that the Plaintiff Company was in violation of the Customs Act, and the Plaintiff Company received the bill of this case's bill of this case's bill of lading from the Plaintiff Company's holder of the bill of this case's bill of lading in this case's bill of lading in this case's possession.

(2) Occurrence of damages liability

(A) Determination on unused green batteries

① First of all, we examine whether the Defendant is liable to keep green cells that were not seized. Since the proprietor and the proprietor of the bonded storage site are liable to keep them (Article 77(1) of the former Customs Act and Article 172(1) of the former Customs Act). Therefore, there is no evidence to acknowledge that the Defendant actually occupied the above green batteries. Furthermore, the Plaintiff 2 Company and Nonparty 2 were transported into the instant bonded storage site upon Plaintiff 2 and Nonparty 2’s request, and the head of Incheon Customs Office did not have any specific melting agent for the storage and storage of the instant storage storage site (Article 77(1) of the former Customs Act, and Article 172(1) of the former Customs Act). Furthermore, the Defendant still did not have any specific melting agent for the storage and storage of the instant storage storage site to the extent that the Plaintiff 1 and Nonparty 2 did not have any specific melting agent for the storage and storage of the instant storage site, the Defendant did not have any specific melting agent for the storage and storage of the instant storage site.

(2) As to the issue of whether the Defendant is obligated to sell green cells that are not seized among the green batteries of this case and deliver the proceeds thereof to the owner of the goods, the storage period at the storage site of the imported goods at the time of carrying them into the storage site of this case shall be six months [Article 74 of the former Customs Act and Articles 3, 8, and 11 of the Public Notice of the Storage Period for Goods (No. 98-51 of the Korea Customs Service notification of October 15, 1998)] of the unclaimed green batteries of 0. The head of the customs office may, upon the lapse of 00, inform the Defendant of the fact that the period for storage of the unclaimed green batteries of the fact-finding of the fact-finding of the fact-finding of the fact-finding 20,000 if the period for storage of foreign goods shipped into the bonded area expires, and the head of the customs office may, at the latest, sell the goods at the disposal site of this case for 100,000 if it is difficult.

③ Next, the Plaintiff Singwawa asserts that the Defendant kept melting batteries that have not been seized in de facto condition by releasing the disposition to designate the goods subject to management and preventing the failure to file an application for correction of the cargo manifest from being cleared of customs clearance. However, the Plaintiff Singwawa or the Plaintiff 2, the owner, did not file an application for return or customs clearance of melting batteries that was not seized with the Defendant. Moreover, since the goods subject to management refer to the inspection of imported cargoes under Article 246 of the Customs Act, the owner’s import declaration is not specially restricted, and the owner may file an import declaration at any time. The cargo manifest is merely a material that the captain and the captain of the foreign trade vessel or the foreign trade aircraft wishing to enter into an open port in accordance with Article 135 of the Customs Act, etc., and it is not a document that the owner shall submit for customs clearance (see Article 245 of the Customs Act, Article 250 of the Enforcement Decree of the Customs Act, Article 21-17 of the Customs Act, and therefore, there is no reason to claim for correction or rectification procedure.

④ Plaintiff Singingwawa stated that the Plaintiff’s office built up and sealed all entrances of the warehouse, and Nonparty 3, the responsible manager of Nonparty 1, refused all the request for approval for the confirmation of the cargo and the opening and maintenance of the entrance for inspection to maintain the current condition, thereby causing damage to Nonparty 1, who was unable to manage the instant green batteries. However, even if the customs collector restricted the shipping-out or the key management of the instant green batteries, there was a legal ground for imposing the above restrictions on the cargo subject to management within the licensed bonded area, and it is difficult to legally hold customs clearance impossible because the said green batteries was not cleared due to suspicion of violating the Customs Act. Moreover, as seen earlier, it is difficult to view that the Defendant’s act was unlawful merely by itself, and it is difficult to accept the Defendant’s demand despite Nonparty 1’s sufficient consideration of manpower or work burden, despite the Defendant’s failure to comply with the above requirements.

(B) Determination on seized green batteries

If seizure is carried out in connection with a criminal investigation, an investigative agency has the authority to hold the seized articles by its effect and does not acquire ownership of the seized articles. As such, the defendant should keep the seized articles with the care of a good manager [Article 131, 219, and Article 11 of the Detailed Regulations on the Preservation and Management of Seized Goods], and even if the seized articles are entrusted with custody (Article 130 of the Criminal Procedure Act), the defendant was directly responsible for storage of the seized articles, and the custodian was in a similar position with the employer. According to the above facts, the defendant had the duty of care to keep the seized articles in question by selling part of the green cells transported to the storage site on September 27, 199, but the Incheon District Prosecutors' Office took measures to keep the seized articles in question for a long period of time as a manager of the duty of care to keep them in custody, and thus, it is difficult to say that the defendant had been negligent in taking measures to keep them in custody for the purpose of returning them to Nonparty 2, 201.

Ultimately, the defendant is liable to compensate for all damages suffered by the plaintiff Singwa, who is the owner of green cells confiscated due to negligence in the course of performing his duties relating to the storage of seized objects as above by the customs officer under his control.

(3) Scope of damages

(A) The green batteries of this case is the goods exported by Plaintiff Company 2 as seen earlier. Therefore, the damages incurred from the deterioration of the green batteries that was seized by Plaintiff Company cannot be based on the domestic market price of the above green batteries, as alleged by Plaintiff Company, and the above green batteries should be based on the export price, which is the total cost incurred until the above green batteries entered Incheon port from the export site until the export site. In addition, the above export price denominated in US dollars is the value at the time of the return of the seized goods at the foreign exchange rate at the time of the disposal of the seized goods. In converting the above market price denominated in US US dollars into Korean currency, barring any special circumstance, it is reasonable to calculate it by the basic exchange rate (see Supreme Court Decision 94Da61120 delivered on September 15, 195).

Therefore, it is reasonable to view that the damage caused by the deterioration of the green batteries that was seized by the Plaintiff Company was the amount converted into the Korean currency at the time of the disposal of the seized goods by converting the export price of the seized green batteries into the Korean currency at the time of the disposal of the seized goods.

(b)Calculation;

① The export price of green batteriess: Although there is no evidence to know the accurate export price between the Plaintiff Company and the Plaintiff Company, it is reasonable to presume the export price of the above goods as the export price reported to the application for approval for bonded transportation on July 5, 199 on July 5, 199, immediately after the import by Plaintiff Company 2, etc. (No. 5-1, 2, and 3).

(2) The unit price per kilogram: USD 737,620 ($ 101,220 + 393,400 + 243,00)/873.7km = 84.45

(W) The weight reported by the Plaintiff 2 is less than the above 8733.7kg, but the reported price shall be deemed to be the gross weight, and it shall be determined on the basis of the above weight)

③ Price of 1,431.7 kilograms (including 1,523.7 kilograms) confiscated at the time of the export contract of this case: 1,523.7 kilograms x 84.45 kilograms x 128,676$128,676 (b)

(D) Since the unit price per 1,431.7km or per kg was determined on the basis of the total weight, the part of the seized green batteries, including the string weight, shall be deemed to be 1,523.7km of the entire green batteries.

④ Damage of Plaintiff Salking: USD 128,676 x 1,308 (the current base exchange rate and significant facts in the court on June 22, 2001) = 168,308,208 won

(4) Judgment on the defendant's assertion

(A) The good faith argument

The defendant asserts that the representative director of the non-party 1 and the representative director of the plaintiff 2 are identical to the non-party 2, that the non-party 3 is the co-born of the above non-party 2, and that the administrator who resides in the middle alarm system and manages the warehouse is responsible for the defendant even though the non-party 1 was non-party 1, it is practically identical to the non-party 2 and the non-party 1's exercise of the right by using the fact that it is a separate form of legal personality of the non-party 2 and the non-party 1, and it is not allowed under the principle of good faith. However, although the ownership and the compensation for damages of the non-indicted 2 are claimed for the non-indicted 2, not the plaintiff 2, and the non-indicted 2 is entirely separate from the plaintiff 1 and the non-party 2, it cannot be deemed unfair. Accordingly, the defendant's assertion that the above ground of appeal by the defendant alone cannot be viewed as a violation

(B) Claim for offsetting negligence

The defendant alleged that the green batteries was decomposed due to the plaintiff 2's error in the custody of the non-party 2, who is the representative director of the plaintiff 2 company, who carried out customs clearance procedures on behalf of the plaintiff 2, and such circumstance should be considered as the plaintiff's negligence. However, as seen above, the above green batteries was transported to the bonded storage facility of this case at the request of the plaintiff 2 company, and the above green batteries was in the process of customs clearance for the cargo subject to management in the bonded storage facility of this case. However, after the defendant's seizure disposition was taken, the defendant's responsibility for storage was held against the owner. However, considering that the green cells seized on behalf of the plaintiff 2 were the place where the customs collector's patent was granted for the storage of medicinal materials, the above bonded storage facility of this case, which was seized, could not be expected to take proper measures, such as urging attention or checking the management status, etc., by predicting that the green batteries batteries which was destroyed due to the negligence in the above bonded storage facility of this case.

3. Determination on the plaintiff 2's claim

A. The plaintiff 2's assertion

In managing the doors of the bonded storage site in which seized materials were stored, the head of Suwon Customs Office of the Defendant: (a) prevented the Defendant from taking customs clearance or shipping out of the bonded storage site for seven months or more without any legal basis; (b) as a result, Nonparty 1 failed to properly manage melting, thereby leaving the freezing warehouse in a state that it could not maintain low temperature normally required due to the breakdown of freezing and refrigerating; and (c) thereby, Plaintiff 2 suffered loss of melting all of melting melting melting melting melt, and thus, the Defendant is obligated to pay KRW 448,201,260 (i.e., 1,915. 574,619 kilograms x 780 kilograms at the time of the corruption of melting melting melting melt 200).

B. Determination

The defendant, without any legal basis, has no evidence to acknowledge the plaintiff's assertion as to whether the green cells of this case were actually stored without taking procedures for customs clearance against them. Rather, it can be recognized that the green cells of this case were carried into the bonded storage area of this case and the defendant was stored in the container in the bonded storage area of this case as of October 11, 1999 after the defendant seized part of the green cells of this case. Thus, the above green cells' responsibility for storage is against the plaintiff 2 company or the proprietor, who is the owner. Thus, it is difficult to find that the plaintiff 2 company was under the customs administration's investigation, which was suspected of being used for the green batteries of this case, and the customs administration did not have any legal grounds to recognize that the green batteries of this case had been stored in the bonded storage area of this case. Thus, it is difficult to find that the defendant had no legal grounds to recognize that the green cells of this case had been stored in the bonded storage area of this case without any legal grounds to recognize that the defendant had been in violation of the customs law.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff Swewewewe with 168,308,208 won and the part of the plaintiff Sweweal with respect to the above 168,308,208 won and the above damages for delay from June 22, 2001 to July 12, 2005, which is the date of the judgment of the court of first instance. Since the defendant is obligated to pay 5% per annum as stipulated in the Civil Act and 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment, the claim of this case by the plaintiff Swealweal shall be accepted within the above scope of recognition, and the remaining claims shall be dismissed without any justifiable reason, and the claim of the plaintiff 2 shall be dismissed without any justifiable reason. Since the part of the plaintiff Sweal's judgment against the defendant as to the above 168,308,208,208 won and the above damages for delay shall be dismissed.

Judges Kim Tae-tae (Presiding Judge)