(영문) 대전지방법원 2014.3.14.선고 2013고단4487 판결

Defendant A shall be punished by imprisonment for one year, by a fine of 6.7 million won, by a fine of 6.85 million won, and by a fine of 6.5 million won.

When Defendant A does not pay the above fine, the above defendant shall be confined in a workhouse for a period calculated by converting 600,000 won into one day, and the fractional amount shall be one day.

However, for two years from the date this judgment becomes final and conclusive, the execution of the above imprisonment with labor for the defendant A shall be suspended.

To order the Defendants to pay an amount equivalent to the above fines.

Reasons

Criminal facts

Defendant A is the representative director of Defendant B, Inc., who is A and B.

1. Defendant A

A. Violation of the Customs Act

1) A person who has filed an import declaration for illegal imports shall import medical devices with the requirements for permission, recommendation, certification, or other conditions necessary for import in accordance with the legislation, and an importer of medical devices shall obtain a license for import of medical devices from the Commissioner of the Korea Food and Drug Administration and file a standard customs clearance scheduled report with the President of the Korea Medical Device Industry Association, and then file an import declaration. The standard customs clearance scheduled report functions to verify whether the import license granted by the Association is consistent with the import license granted by the importer and, if so, replace the confirmation of the conformity of the import license with the actual import items.

On November 5, 2008, the Defendant filed an import declaration with the Busan Customs Office, and imported medical appliances amounting to KRW 263,70,70, and KRW 350,873,766, the Defendant did not report to the President of the Korea Medical Device Industry Association prior to importation, despite having to make a standard customs clearance scheduled report. From that time, the Defendant received medical appliances without filing an import declaration, and without filing an import declaration with the President of the Korea Medical Device Industry Association, which is necessary for import. From that time to December 31, 2012, 39,653,157, total sum of 38,653,157, and 51,286,237,651, as shown in the attached Table “Unlawful Imported Crime List”, and imported medical appliances, without filing an import declaration with the President of the Korea Medical Device Industry Association, which is necessary for import.

(ii)a false declaration of origin;

On October 29, 2008, the Defendant exported 1,702 sirens for correcting the domestic vision, and 4,559,555 won, and filed a false declaration of the origin of sirens to the Daejeon Customs as a citizen of the Republic of Korea (KR), not China, at the time of export declaration, at the time of export declaration, from that time to May 31, 2012, as shown in the [Attachment 2,353,922] list of false crimes reported the origin of the Republic of Korea during 422 times in total, as shown in the [Attachment 2,353,922] list of false crimes reported the origin.

3) The fact that the import price falsely reported

On June 4, 2009, the Defendant imported an amount of KRW 600,00, and an amount of KRW 3,835,554, and reported to the Incheon Airport Customs as KRW 79,074 at the time of filing an import declaration, and filed a false report on the import price of KRW 79,074, and filed a false report on the import price of KRW 1,709,309, and KRW 11,198,02,166 on January 22, 2013, the Defendant filed a false report on the import price of KRW 2,357,89,594, and KRW 5777.

4) False declaration of export price

On June 19, 2009, the Defendant filed an export declaration of KRW 700,653,030, which was processed by the Defendant, with the import declaration of KRW 5,653,03,00, and filed a false declaration of KRW 1,403,773 at the time of export declaration to the Daejeon Customs, and filed a false declaration of KRW 1,687,679, which was processed on a total of 180 occasions, as indicated in the “the list of crimes reported falsely for Export Price” in attached Form 2, from January 29, 2013, the Defendant filed an export declaration of KRW 1,687,679,679, which was processed on a total of 180 occasions as indicated in the “the list of crimes reported falsely for Export Price”.

B. Violation of the Foreign Trade Act

(i)the point of domestic household export;

The Defendant, on January 5, 2008, exported to a third country the origin is indicated as China after re- packing or undergoing a simple processing process of the cost of the goods of KRW 975,409, and then exported to a third country, but the country of origin is indicated as Korea (KR). However, from that time to May 31, 2012, the Defendant, as indicated in the [Attachment 3,268,775] totaling KRW 3,268,775, the cost of the goods of the Republic of Korea, the cost of the goods of KRW 6,369,469, is the most exported to Korea (KR).

(ii) the point of domestic sales with country of origin labeling;

On March 10, 2008, the Defendant: (a) changed individual packaging bags originating into “MADE INCHINA” to individual packaging bags marked as “MADE INREA” and sold them with marks of origin falsely; (b) from October 25, 2010 to October 25, 2010, the Defendant sold them with marks of origin totaling KRW 2,836,669, and KRW 3,271,642,424 of the cost of the goods to Korea by falsely indicating the origin to Korea.

(iii)the point of domestic sale, including indication of origin and damage;

피고인은 2008. 3. 4. 중국산 안경렌즈 142개, 물품원가 284,000원 상당을 국내 거래처인 丁에 판매함에 있어 'MADE IN KOREA'로 원산지 표기된 개별 포장봉투를 원산지가 표시되어 있지 않은 개별 포장봉투로 교체하여 판매한 것을 비롯하여 그 때부터 2011. 9. 5.까지 별지 ‘원산지 표시 손상 국내 판매 범죄일람표’ 기재와 같이 총 103회에 걸쳐 중국산 안경렌즈 합계 58,058개, 물품원가 128,334,650원 상당을 위와 같은 방법으로 원상지표시를 손상하여 판매하였다.

On January 6, 2009, the Defendant illegally received KRW 37,94,861 in total by the same method over 36 times in total, as indicated in the “Unlawful Refund List” from October 14, 2011, by submitting a false statement on the required amount of raw materials required for the manufacture of siren to a third party, as if he were domestically produced sirens, and filing a customs refund return to the Daejeon Customs Office, and thereby wrongfully refunded customs duties of KRW 754,090.

2. Defendant B corporation

The defendant committed a violation such as the statement A, A, A, and B, in the same manner as the statement in paragraph A.

Summary of Evidence

1. Defendants’ respective legal statements

1. Application of Acts and subordinate statutes to written accusation;

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

A. Defendant A

1) Violation of the Customs Act

A) Illegal revenue (to choose each imprisonment with prison labor)

(1) Articles 270(2) and 241(1) of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010) (Attached No. 1 to 97 of the list of illegal import crimes)

(2) Articles 270(2) and 241(1) of each Customs Act (attached Form No. 98 to 187)

B) a false declaration of origin

(1) Articles 276(1)4 and 241(1) of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010) (attached Form No. 1 to 304)

(2) Articles 276(1)4 and 241(1) of the former Customs Act (amended by Act No. 11602, Jan. 1, 2013) (attached Form No. 305 through 422)

C) The false declaration of import price

(1) Articles 276(1)4 and 241(1) of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010; hereinafter the same shall apply) (No. 1 through 80)

(2) Articles 276(1)4 and 241(1) of the former Customs Act (amended by Act No. 11602, Jan. 1, 2013); (2) [Attachment] No. 81 or 178 of the Act (amended by Act No. 11602, Jan. 1, 2013)

(3) Articles 276(1), 241(1) of the former Customs Act (amended by Act No. 12027, Aug. 13, 2013); (3) (No. 179, 180 of the list of crimes reported falsely by the import price in attached Form)

D) False declaration of export price

(1) Articles 276(1)4 and 241(1) of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010) (attached Form No. 1 to 79)

(2) Articles 276(1)4 and 241(1) of the former Customs Act (amended by Act No. 11602, Jan. 1, 2013) (attached Form No. 80 or 176) (the number of items in the list of crimes reported falsely on the export price)

(3) Articles 276(1) and 241(1) of the former Customs Act (amended by Act No. 12027, Aug. 13, 2013) (attached Form No. 177 or 180) (the number No. 177 or 180 of the list of crimes reported falsely on the export price)

2) Violation of the Foreign Trade Act (each choice of imprisonment with prison labor)

A) The point of domestic household export

(1) Articles 53(2)8 and 38 of the former Foreign Trade Act (amended by Act No. 10231, Apr. 5, 2010) (Attached Korea’s Regulation No. 1 to 413 of the List of Offenses for Export and Import Crimes)

(2) Articles 53-2 subparag. 4 and 38 of the former Foreign Trade Act (amended by Act No. 11958, Jul. 30, 2013) (attached Form No. 414 through 574, as indicated in the list of export crimes in Korea)

(B) the point of domestic sales with country of origin labeling;

(1) Articles 54 subparag. 7 and 33(3)1 of the former Foreign Trade Act (amended by Act No. 9630 of Apr. 22, 2009) (attached Form No. 1 to 61 of the list of crimes of domestic sale with false origin labeling)

(2) Articles 54 subparag. 9 and 33(3)1 of the former Foreign Trade Act (amended by Act No. 10231, Apr. 5, 2010) (attached Form No. 62 or 94 of the list of crimes of domestic sales with false origin labeling)

(3) Articles 53-2 subparag. 1 and 33(4)1 of the former Foreign Trade Act (amended by Act No. 11958, Jul. 30, 2013) (attached Form No. 95), 53-2 subparag. 1 and 33(4)1

C) the point of domestic sale of origin labeling damage;

(1) Articles 54 subparag. 7 and 33(3)2 of the former Foreign Trade Act (amended by Act No. 9630 of Apr. 22, 2009) (attached Form No. 1 to 63 of the list of crimes of domestic sales and destruction of origin)

(2) Articles 54 subparag. 9 and 33(3)2 of the former Foreign Trade Act (amended by Act No. 10231, Apr. 5, 2010) (attached Form No. 64 or 90 of the list of crimes in which the country of origin was damaged)

3) Each former Foreign Trade Act (Amended by Act No. 11958, Jul. 30, 2013) Article 53-2 Subparag. 1 and Article 33(4)2 of the former Foreign Trade Act (amended by Act No. 11958, Jul. 30, 2013) (attached Form No. 91 through 103)

(iii) Violation of the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export (Appointment of imprisonment);

A) Article 23(1) of the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on each Raw Materials for Export (amended by Act No. 10817, Jul. 14, 201) (attached Form No. 1 or 31) (the point of illegal refund of customs duties)

B) Article 23(1) of the Act on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export (the point of illegal refund No. 33 through 36 listed in the Schedule of Illegal Refund Crimes)

B. Defendant B corporation

1) Violation of the Customs Act

A) The point of illegal revenue

(1) The main text of Article 280 of the former Customs Act (amended by Act No. 9261 of Dec. 26, 2008); Articles 270(2) and 241(1) of the former Customs Act (amended by Act No. 10424 of Dec. 30, 2010) (attached Form 1 or 9)

(2) The main sentence of Article 279(1), Article 270(2), and Article 241(1) of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010) (Attached No. 10 to 97)

(3) The main sentence of Article 279(1), Article 270(2), and Article 241(1) of the Customs Act (attached Form No. 98 to 187)

B) a false declaration of origin

(1) The main text of Article 280 of the former Customs Act (amended by Act No. 9261 of Dec. 26, 2008), Article 276(1)4 and Article 241(1) of the former Customs Act (amended by Act No. 10424 of Dec. 30, 2010) (attached Form 1 to 18)

(2) The main sentence of Article 279(1), Article 276(1)4, and Article 241(1) of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010) (attached Form No. 19 through 304)

(3) The main text of Article 279(1) of each Customs Act, Article 276(1)4 and Article 241(1) of the former Customs Act (amended by Act No. 11602, Jan. 1, 2013) (attached Form No. 305 to 422)

C) The false declaration of import price

(1) The main sentence of Article 279(1), Article 276(1)4, and Article 241(1) of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010; hereinafter the same shall apply) (the number 1 to 80)

(2) The main text of Article 279(1) of each Customs Act, Article 276(1)4 of the former Customs Act (amended by Act No. 11602, Jan. 1, 2013); and Article 241(1) of the former Customs Act (amended by Act No. 11602, Jan. 1, 2013)

(3) The main text of Article 279(1) of each Customs Act, Article 276(1), and Article 241(1) of the former Customs Act (amended by Act No. 12027, Aug. 13, 2013) (the number No. 179, 180, listed in the list of days of declaration of false import declaration)

D) False declaration of export price

(1) The main sentence of Article 279(1), Article 276(1)4, and Article 241(1) of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010) (attached Form 1 to 79)

(2) The main text of Article 279(1) of the Customs Act, Article 276(1)4 and Article 241(1) of the former Customs Act (amended by Act No. 11602, Jan. 1, 2013) (attached Form 80 through 176)

(3) The main text of Article 279(1) of the Customs Act, Article 276(1) and Article 241(1) of the former Customs Act (amended by Act No. 12027, Aug. 13, 2013) (attached Form No. 177 through 180)

2) Violation of the Foreign Trade Act

A) The point of domestic household export

(1) Article 57(1) of the former Foreign Trade Act (amended by Act No. 9221, Dec. 26, 2008); Article 53(2)8, and Article 38 of the former Foreign Trade Act (amended by Act No. 10231, Apr. 5, 2010); and Article 38 of the former Foreign Trade Act (amended by Act No. 10231, Apr. 5, 201); and

(2) The main sentence of Article 57 of the former Foreign Trade Act (amended by Act No. 10231, Apr. 5, 2010); Article 53(2)8, and Article 38 of the former Foreign Trade Act (amended by Act No. 10231, Apr. 5, 201) (Attached No. 171 through 413)

(3) The main sentence of Article 57 of the Foreign Trade Act, Article 53-2 subparag. 4 and Article 38 of the former Foreign Trade Act (Amended by Act No. 11958, Jul. 30, 2013) (attached Form No. 414 through 574, as indicated in the list of crimes committed for Export of Korea)

(B) the point of domestic sales with country of origin labeling;

(1) Article 57(1) of the former Foreign Trade Act (amended by Act No. 9221, Dec. 26, 2008); Article 54 Subparag. 7 and Article 33(3)1 of the former Foreign Trade Act (amended by Act No. 9630, Apr. 22, 2009) (attached Form 1 to 40)

(2) The main text of Article 57 of the former Foreign Trade Act (amended by Act No. 10231, Apr. 5, 2010); Article 54 Subparag. 7 and Article 33(3)1 of the former Foreign Trade Act (amended by Act No. 9630, Apr. 22, 2009) (attached Form No. 41 to 61)

(3) Each former Foreign Trade Act (amended by Act No. 10231, Apr. 5, 2010) violates the main sentence of Article 57, Article 54 Subparag. 9, and Article 33(3)1 (attached Form No. 62 or 94) of the former Foreign Trade Act (amended by Act No. 10231, Apr. 5, 201)

(4) The main text of Article 57 of the Foreign Trade Act and Articles 53-2 subparag. 1 and 33(4)1 of the former Foreign Trade Act (amended by Act No. 11958, Jul. 30, 2013) (the violation No. 95)

C) the point of domestic sale of origin labeling damage;

(1) Article 57(1) of the former Foreign Trade Act (amended by Act No. 9221, Dec. 26, 2008); Article 54 Subparag. 7 and Article 33(3)2 of the former Foreign Trade Act (amended by Act No. 9630, Apr. 22, 2009); and Article 33(3)2 of the former Foreign Trade Act (attached Form No. 1 to 40)

(2) The main text of Article 57 of the former Foreign Trade Act (amended by Act No. 10231, Apr. 5, 2010); Article 54 Subparag. 7 and Article 33(3)2 of the former Foreign Trade Act (amended by Act No. 9630, Apr. 22, 2009); and Article 4 Subparag. 7 and Article 33(3)2 of the former Foreign Trade Act (amended by Act No. 41 to 63)

(3) Each former Foreign Trade Act (amended by Act No. 10231, Apr. 5, 2010) violates the main sentence of Article 57, Article 54 subparag. 9, and Article 33(3)2 of the former Foreign Trade Act (Attached Form No. 64 through 90)

(4) The main text of Article 57 of the Foreign Trade Act, Articles 53-2 subparag. 1 and 33(4)2 of the former Foreign Trade Act (Amended by Act No. 11958, Jul. 30, 2013); and Article 91 through 103 of the former Foreign Trade Act (amended by Act No. 11958, Jul. 30, 2013)

1. Aggravation for concurrent crimes;

A. Defendant A

1) Imprisonment: the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act;

2) Fines: the former part of Article 37 of the Criminal Act; Article 278 of the Customs Act; Article 278 of the former Customs Act (Amended by Act No. 10424, Dec. 30, 2010); Article 278(1) of the former Customs Act (Amended by Act No. 9910, Jan. 1, 2010);

A) The sum of fines of KRW 1,00,000 for each 79 crimes whose aggregate amount of the cost of the goods on the list of false crimes reported for origin exceeds KRW 20,000,000, and fines of KRW 5,050,000 for the remaining 3,43 crimes, and the sum of fines of KRW 2,50,050 for each 3,000,000 for each 3,50,000 won (=(79 times X 1,000 + KRW 343,50)

(B) On two-time crimes, the sum of the cost of the cost of the goods on the list of crimes reported falsely for import prices exceeds KRW 50 million (No. 179.180,000,000) (No. 179.180,000,000,000,000,0000,000,000,000 or more, for each of the 1,79,000,000,000,000,000,000,000,000,000,000,000,000,000,000 or more for each of the crimes (no. 1,70,000,000,0000) + (the amount of fine shall be KRW 2,500,000,000))

C) For three-time crimes with the sum of the cost of the goods on the list of false crimes reported on export prices exceeds KRW 50 million (2) (2.5 million) (2.5 million, each of which is KRW 2.5 million, and the amount of fines for the 163-time crimes with the sum of the cost of the goods is at least KRW 20,000,000,000 for each of which is at least 20,000,000 won, and the sum of fines for the 14-time crimes with the sum of the cost of the goods is at least KRW 20,000,000 for each of which is less than KRW 5,00,000,000 for each of which exceeds KRW 177,50,000 (3 x 2.5 million) + (163 times X x 14,50,000))];

D) Concurrent imposition of a fine of KRW 67 million (=250 million + KRW 179 million + KRW 17775 million + KRW 300 million): the former part of Article 37 and Article 38(1)3 of the Criminal Act

B. Defendant B corporation

1) Violation of the Customs Act

A) Article 37 of the Criminal Act; Article 278 of the Customs Act; Article 278 of the former Customs Act (Amended by Act No. 10424, Dec. 30, 2010); Article 278(1) of the former Customs Act (Amended by Act No. 9910, Jan. 1, 2010);

B) A fine of KRW 67 million (=250 million + KRW 179 million + KRW 179 million + KRW 1775 million)

(1) The sum of fines of KRW 1,00,000 for each 79 criminal act whose aggregate amount of the cost of the goods on the list of false origin declaration exceeds KRW 20,000,000 for the remaining 3,43 criminal acts, and fines of KRW 50,000 for each 3,00,000 for the remaining 3,50,000 won (= (79 times X 1,000) + (343 times X 5,00))];

(2) On two-time crimes, the sum of the cost of the cost of the goods on the list of crimes reported falsely at import prices exceeds KRW 50 million (2.5 million) (2.5 million, each of which is KRW 2.5 million, the sum of fines for each of which is KRW 20 million, the sum of the cost of the goods is KRW 20 million, and the amount of fines for each of which is less than KRW 20 million, the sum of fines for each of which is KRW 500,000,000,000 for each of which is KRW 179,000 (2 x 2.5 million) + (170,000 won) + (880,000 won)).

(3) For three-time crimes whose total sum of the cost of the goods on the list of false crimes reported on the export price is at least KRW 50 million (No. 177-178.180) (No. 177-178.180), the fine amount is at least KRW 2,50,000,000 for each 163-time crimes whose total sum of the cost of the goods is at least KRW 20,000,000,000 for each 1,000,000 won for each 1,77,50,000 won for each of the 163-time crimes whose total amount of the cost of the goods is at least KRW 20,000,000 for the total amount of the goods, and the fine is at least KRW 50,000 for each 1,750,000 for each 163-time crimes)

2) A violation of the Foreign Trade Act: Fines of 78 million won;

Article 37 (former part of Article 37, Article 38 (1) 2, Article 50 (3) of the Criminal Act) Total fine of 685 million won (=67 million won + 78 million won)

1. Detention in a workhouse;

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

1. Suspension of execution;

Defendant A: Article 62(1) of the Criminal Act

1. Order of provisional payment;

Defendants: (1) The reasons for sentencing of Article 334(1) of the Criminal Procedure Act (2.5 times a fine for violation of the Foreign Trade Act); (6) times a fine for dual type (no longer than imprisonment without prison labor) and six times a fine; (6) the sum of penalty surcharges, etc., (7) the penalty surcharges, etc., additionally imposed on a person who committed a crime, exceeds KRW 2.24 million; and (3) the amount of penalty surcharges, etc., imposed on the person who committed a crime, exceeds KRW 2.24 million; and (4) the amount of penalty surcharges, etc., imposed on the person who committed a crime, including the person who committed a crime, was fully paid the penalty surcharges, penalty surcharges, etc.; and (4)

Judges

Judge Choi Dooe-forest

Note tin

1) Crimes to which Articles 276(1) and 241(1) of the former Customs Act (amended by Act No. 12027, Aug. 13, 2013) apply

limited to this section.

2) Crimes to which Articles 276(1) and 241(1) of the former Customs Act (amended by Act No. 12027, Aug. 13, 2013) apply

limited to this section.

3) Crimes to which Articles 276(1) and 241(1) of the former Customs Act (amended by Act No. 12027, Aug. 13, 2013) apply.

limited to this section.

4) Crimes to which Articles 276(1) and 241(1) of the former Customs Act (amended by Act No. 12027, Aug. 13, 2013) apply.

limited to this section.

5) Defendant B Co., Ltd is also the same.

6) Although the prosecutor asserts that he did not properly know the relevant statute, according to the evidence submitted by the prosecutor, the same company is in violation of the pertinent statute.

No favorable circumstance can be considered in that there is no discovered company.

7) As a matter of course, the customs duty to be paid was not paid, and as a result, the penalty surcharge, penalty surcharge, etc. (not subject to double refund) was imposed.

Therefore, it is not an important factor to determine whether the customs duties paid additionally have been refunded.

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