Defendant 1 and one other

Prosecutor

Yellow Jinia (Public Prosecution) and Park Jong-young (Public trial)

Attorney Kim Shin-hun

Busan District Court Decision 2014Ra1205 Decided August 7, 2014

The judgment of the court below is reversed.

Defendants shall be punished by a fine of KRW 10 million.

When Defendant 1 fails to pay a fine, the above defendant shall be confined in a workhouse for a period calculated by converting KRW 100,000 into one day.

Each of the Defendants’ KRW 211,744,50 shall be collected additionally from the Defendants.

To order the Defendants to pay a fine in an amount equivalent to the fine separately.

1. Summary of grounds for appeal;

Although the oil hold cleaning waste oil should be brought into the Republic of Korea after filing an import declaration under the Customs Act, Defendant 1 only declared the above waste oil as a "tax quota" and left without any import declaration and sold it to a waste oil recycling business entity. However, the lower court acquitted Defendant 1 of this part of the facts charged on the ground that it is difficult to deem that the oil hold cleaning waste oil in this case is subject to the import declaration or that there was an intention to import smuggling with Defendant 1. In so doing, the lower court erred by misapprehending the legal principles as to the intention of the goods subject to the import declaration or the smuggling.

2. Determination

A. Summary of the facts charged in the instant case

Defendant 1 is the representative director of Defendant 2 Co., Ltd. (hereinafter “Defendant 2 Co., Ltd.”) with the fifth fifth floor of ○○○○○○○○ branch located in Busan Jung-gu, and Defendant 2 is a corporation established for the purpose of marine pollution response and oil hold cleaning.

1) Defendant 1

The name, standard, quantity and price of the relevant goods, and other matters prescribed by Presidential Decree shall be reported to the head of a customs office.

On July 10, 2012, the Defendant sold 116 tons of “waste oil from oil hold cleaning,” which is equivalent to 5,537,334 won, to Nonindicted Incorporated Company 1, a closed oil recycling company, without filing an import report with the head of Busan Customs Office.

In addition, the Defendant imported from July 17, 2013 1,303 tons of “waste cleaning waste oil” equivalent to KRW 211,744,50, which was the total market price left from an ocean-going ship in order to sell it to Nonindicted Co. 1, a waste oil supplier, etc. over 31 times in total, as shown in the attached list of crimes, without filing an import declaration with the head of the customs office from the time until July 17, 2013.

2) Defendant 2’s corporate services

Defendant 1, the representative director of the Defendant, at the time and place stated in the above paragraph (1), imported “waste cleaning waste oil” 1,303 tons of the Defendant’s business without filing a report thereon with the customs collector.

B. The judgment of the court below

The lower court, based on the submitted evidence, found that the waste oil from the hold cleaning alone is a foreign goods subject to an import declaration to the extent that it is beyond a reasonable doubt, and ② the waste oil from hold cleaning appears to be a by-products produced in the course of cleaning an oil tank after leaving the oil imported in a oil tanker and then cleaning the oil tank loaded with the oil. The above oil was already filed by the importer, and it appears difficult to readily conclude that Defendant 1 had an intention of smuggling, on the grounds that it is difficult to recognize that there was an intention of smuggling with respect to by-products, such as oil oil and sludge in the oil tank on which the import declaration was filed, as foreign goods requiring an import declaration.

C. Judgment of the court below

1) Whether the oil hold cleaning oil of this case is subject to import declaration

On the contrary, the prosecutor asserts that the oil hold cleaning oil is subject to the import declaration, while the Defendants had already filed the import declaration for all oil shipped on the ship by the owner of the goods and accepted the oil accordingly, so there is no need for a separate import declaration for oil hold cleaning oil.

According to the records, in light of the contents of the investigation record No. 25 attached hereto, the "SX ACE 1" in the attached Form No. 2 is deemed to be a clerical error, in light of the investigation record No. 109.

Among them, there are 12 vessels that enter the Republic of Korea without shipment, i.e., vessels that enter the port without shipment, i.e., vessels that load light oil, sugars, etc. and enter the Republic of Korea and undergo general import clearance procedures under the Customs Act (hereinafter “general customs clearance vessels”) are three vessels, and vessels that load naphthas, lubric oil, etc. and that filed an import declaration prior to entry as prescribed in Article 244 of the Customs Act (hereinafter “ship prior to entry into port”) are 10 vessels. Thus, three cases are examined, respectively.

In the case of an official ship, the import declaration on the oil hold cleaning and waste oil landed from the factory ship is clear. In addition, in the case of a general customs clearance ship, the import declaration on the oil hold cleaning and waste oil landed from the factory ship shall enter the designated storage place, etc., and then pass through customs upon the import declaration (see Articles 241 and 243 of the Customs Act). In this case, the import declaration on the remaining goods remaining in the ship cannot be deemed to have been filed on the grounds that the import declaration on the goods remaining in the ship were carried in the designated storage place, etc. after loading and unloading the ship, and the import declaration on the oil hold cleaning and waste oil remaining in

In light of the purport of the import declaration prior to entry into the Republic of Korea, even though an import declaration was filed prior to entry into the port, the effect of the declaration is limited to the extent that the owner who filed the import declaration can load and unload in the Republic of Korea without losing the identity with the reported goods. Therefore, if the goods were processed or modified and thus become separate goods that lost the identity at the time of entry into the Republic of Korea, it is difficult to deem that there was a lawful and effective import declaration prior to entry into the port for the purpose of providing convenience in customs clearance procedures. Even if the owner filed the import declaration prior to entry into the port for oil such as naphtha, etc., the Defendant cannot be deemed to have filed a lawful and effective import declaration prior to entry into the port for the processed and modified goods, and as such, a new import declaration prior to entry into the port for loading oil should be filed.

Ultimately, it is necessary to file an import declaration on oil hold cleaning and waste oil in any case of public ships, general customs clearance ships, and ships prior to entry into port.

2) Whether Defendant 1 had intention to import smuggling

The court below and the court below found the above facts based on the evidence duly adopted and investigated that there is a need for an import declaration on waste oil to be imported as Korea. Defendant 1 was well aware that the waste oil with economic value should be declared. ② Defendant 1 had sufficiently recognized that the waste oil was of light value such as cleaning waste oil to be sold to a waste recycling company and raising profits, and ③ other oil hold cleaning business operators did not recognize that the waste oil was of light value. In light of the above fact that Defendant 1 did not have been aware of the fact that the above import declaration could not be seen as an "WAS OL OL OLIWHH" or "WAHH 2" and it was hard to view that the above import declaration was not an import declaration on the waste oil as the representative of the company 2, but it was difficult to view that Defendant 1 did not have been aware of the fact that it was not an import declaration on the ship of this case, and thus, Defendant 1 did not have been aware of the status and experience of Defendant 1's shipping industry.

3) Sub-decisions

Therefore, since the oil of this case is not only the object of import declaration but also the intention of Defendant 1 to import smuggling, the court below erred by misunderstanding the fact that the court below acquitted the Defendants, thereby affecting the conclusion of the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below regarding smuggling was unable to be maintained as the above grounds for reversal. Since the above smuggling and the remaining conviction are concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below shall be reversed in its entirety. Accordingly, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following judgment shall be rendered again through pleading.

Defendant 1 is the representative director of Defendant 2 who is on the fiveth floor of ○○○○○ branch office located in Busan Jung-gu, and Defendant 2 is a corporation established for the purpose of marine pollution response and oil hold cleaning business.

1. Defendant 1

(a) a tariff evasion;

The Defendant purchased fuel oil (MF380) (MF380) to KRW 109,720,00 (2.60,000 per ton) that was loaded on Nonindicted 3, 50,000 tons in a ship, Nonindicted 2, the head of the △△△△△△△, Nonindicted 2, the head of the △△△△△△△△, the same company, and conspired to sell and divide the profits therefrom to Nonindicted 3.

On July 22, 2013, in collusion with Nonindicted 3 above, the Defendant evaded customs duties of KRW 6,602,400 equivalent to KRW 82,530,00,00, which is the difference by reporting the low-price of KRW 19,650,00 in the name of Defendant 2 to the Busan Customs Office (import declaration number omitted), around July 2, 2013.

(b) Seald income;

The name, standard, quantity and price of the relevant goods, and other matters prescribed by Presidential Decree shall be reported to the head of a customs office.

On July 10, 2012, the Defendant sold 116 tons of “waste oil from oil hold cleaning,” which is equivalent to 5,537,334 won, to Nonindicted Incorporated Company 1, a closed oil recycling company, without filing an import report with the head of Busan Customs Office.

In addition, the Defendant imported from July 17, 2013 1,303 tons of “waste cleaning waste oil” equivalent to KRW 211,744,50, which was the total market price left from an ocean-going ship in order to sell it to Nonindicted Co. 1, a waste oil supplier, etc. over 31 times in total, as shown in the attached list of crimes, without filing an import declaration with the head of the customs office from the time until July 17, 2013.

2. Defendant 2’s corporate services

Defendant 1, the representative director of the Defendant, at the date and time and place stated in the above Paragraph 1., evaded customs duties of KRW 6,602,40 with respect to the Defendant’s business, and imported KRW 1,303 tons of “unclaimed oil” without filing a report with the customs collector.

1. A statement to the effect that the Defendants, in collusion with Nonindicted 3 in the lower court’s law, reported on the storage of fuel oil 393 tons in customs house, and sold waste oil 1,303 tons in oil hold cleaning and waste oil to waste oil recycling companies without filing an import declaration

1. Each import declaration (the sequence 5,35 of evidence lists);

1. Inquiries into each cargo manifest;

1. A comprehensive list of evidential materials of smuggling;

1. A general list of analysis and control of evidence of violation of the Customs Act on corporate services by Defendant 2;

1. Current status of application for leaving a company by Defendant 2 of the female Customs office;

1. The current status of application for leaving a company by Defendant 2 of the Ulsan Customs office;

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Defendant 1: Articles 270(1) and 270(1)1 and 241(1) of the Customs Act; Article 30 of the Criminal Act (the point of evading customs duties); Articles 269(2)1 and 241(1) of the Customs Act (the point of obtaining smuggling) of each Customs Act; the selection of each fine

(b) Company services by Defendant 2: Articles 279(1), 270(1) and 270(1)1, Article 241(1)(a) of the Customs Act; Articles 279(1), 269(2)1, and 241(1)(a) of the Customs Act; selection of each fine

1. Aggravation for concurrent crimes;

Article 37 of each Criminal Code, Article 278 of the Customs Act

1. Detention in a workhouse;

Defendant 1: Articles 70 and 69(2) of the Criminal Act

1. Additional collection:

(a) Defendant 1: Article 282(3) and (2) of the Customs Act

B. Defendant 2 Company Services: Article 282(4), (3), and (2) of the Customs Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The Defendants made confessions as to the crime of evading customs duties, and paid all customs duties and additional taxes that were evaded, and did not intentionally commit the crime of smuggling from the beginning, and Defendant 1 did not have any criminal record of fine or more, etc., under favorable circumstances to the Defendants, the amount of oil hold cleaning, cleaning, and waste oil that the period of the crime of smuggling expires and the period of the crime of smuggling is considerable, shall be considered in light of the circumstances unfavorable to the Defendants, and the punishment as ordered in the Disposition shall be determined by comprehensively taking into account the various factors, such as the motive, means, consequence, and circumstances after the crime of this case, etc.

[Attachment Form 5]

Judges Choi Ji-su (Presiding Judge)