[1] The meaning of "harming public morals" under Article 234 subparagraph 1 of the Customs Act and the standard for determining whether it constitutes "goods or obscene materials detrimental to public morals"

[2] The case holding that the disposition of withholding import clearance was unlawful on the ground that the female self-employed crisis district constitutes "goods detrimental to public morals" under Article 234 subparagraph 1 of the Customs Act

[1] It is reasonable to interpret that the term “confiscing the public morals” as “obscenity” under Article 234 subparag. 1 of the Customs Act means “confiscing the public morals,” barring special circumstances. Whether an imported or exported-prohibited article constitutes “goods or obscene materials that harm the public morals” should not be determined uniformly on the basis of the use or function of the pertinent article, but should be determined individually and specifically in light of the sound common sense and value order in our society, impact on an individual’s fundamental right guaranteed by the Constitution, etc.

[2] The case holding that the postponement of import clearance on the ground that the use and function of the goods are women's self-help organizations is illegal for the reason that it is not only an excessive interference with individual citizens' sexual self-determination rights, which are potential consumers of the goods, but also cannot be deemed as a material threat to our society's sound value order and order, and thus, it constitutes "goods detrimental to public morals" under Article 234 subparagraph 1 of the Customs Act.

[1] Article 234 subparagraph 1 of the Customs Act / [2] Article 234 subparagraph 1 of the Customs Act

MSHan Co., Ltd. (Attorney Kang Sung-sung, Counsel for the defendant-appellant)

The head of Incheon International Airport Postal Office

April 29, 2008

1. The Defendant’s disposition to withhold import clearance for the goods listed in the separate sheet against the Plaintiff on August 21, 2007 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On August 16, 2007, the Plaintiff filed an application for customs clearance with the Defendant for the goods indicated in the attached list for female self-help arrest (hereinafter “instant goods”) with 051197 customs clearance numbers via eA92854019CN, and ems (day) item type ems (hereinafter “instant goods”).

B. On August 21, 2007, the Defendant rendered a disposition to withhold import clearance pursuant to Article 237 of the Customs Act on the ground that the instant goods constituted goods detrimental to customs under Article 234 subparagraph 1 of the Customs Act (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1-1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

Although the goods of this case are mainly used at the time of women's self-defense, women's self-defense itself cannot be deemed to violate good customs, even between husband and wife, play a role in maintaining a smooth sexual life by using auxiliary equipment when sexual intercourse is committed between husband and wife, and can be used in solving the sexual problem of the disabled father, it cannot be deemed that the goods of this case constitute goods detrimental to public morals under Article 234 subparagraph 1 of the Customs Act.

(2) The defendant's assertion

The goods of this case are women's self-help organizations, and they use the diversed net container material to see the same sense as the skin of the person's body, and express the sexual organ of the man during the period of its maternity transfer, and the viewing of these goods alone constitutes obscene materials that may stimulate sexual humiliation and cause sexual interest, thereby undermining the general public's normal sense of sexual humiliation and that are contrary to the good sexual morality under Article 234 (1) of the Customs Act, and thus, the disposition of this case for which customs clearance was postponed is legitimate.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Markets:

(1) Criteria for determining whether a case constitutes “goods detrimental to public morals” under Article 234 subparag. 1 of the Customs Act

Article 234 subparag. 1 of the Customs Act provides that "documents, publications, drawings, films, records, video products, sculptures and other similar articles which disrupt the constitutional order or harm the public safety or morals." Article 237 of the Customs Act provides that the head of a customs office may withhold customs clearance of the relevant goods in cases where obligations provided for in the same Act are violated or are likely to harm the public health, etc." Thus, it is reasonable to interpret "contributing the public morals" as "obscenity" under Article 234 subparag. 1 of the Customs Act, barring special circumstances. The issue of whether the goods are exported or imported as goods prohibited shall not be uniformly determined solely on the basis of the use or function of the relevant goods, but shall be determined individually and specifically in consideration of the impact on the fundamental rights of individuals guaranteed by the Constitution, etc.

(2) Whether the instant goods constitute “obscenity goods”

“obscenity materials” prohibited from criminal sale (see Article 243 of the Criminal Act) means materials which stimulate, stimulate, or satisfy the sexual desire and are contrary to the general public’s sense of sexual humiliation and good sexual morality. Whether certain materials constitute obscene materials should be objectively determined on the material itself regardless of the offender’s subjective intention, distribution, display, etc. (see Supreme Court Decision 2003Do988 delivered on May 16, 2003). According to each description and image of evidence No. 2, evidence No. 1 to No. 1, and evidence No. 1 to No. 3, the goods of this case are materials for women of actual containers, and their total length is 21.5cm (including 2.5cm with batteries) and are contrary to our society’s sound appearance, and thus, it cannot be seen that the material of this case constitutes a male-style one’s own sexual appearance, and it is against our society’s own sexual appearance and its sound appearance.

(3) Sub-decisions

Whether individual citizens use the same sex organ as the goods of this case is a matter of individual freedom. The withholding of import clearance is not only an excessive interference with individual citizens' sexual self-determination right of self-determination, which is potential consumers of the goods, but also an obvious circumstance to deem that the goods of this case constitute obscene materials or serious threat to our society's sound value order. Thus, the disposition of this case which withheld import clearance on the ground that the use and function of the goods of this case constitute "goods detrimental to public morals" under Article 234 subparagraph 1 of the Customs Act is unlawful, as long as there are no clear circumstances to deem that the goods of this case constitute obscene materials or serious threat to our society's sound value order.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges Shin Young-ro (Presiding Judge)