Whether the use price for a right to reproduce a specific work embodied with imported goods by means of public performance, broadcasting, etc. in Korea is included in the customs value of imported goods (negative)

The dutiable value of imported goods for the imposition of customs duties shall be the transaction price adjusted by adding the amount paid for the use of patent rights, utility model rights, design rights, trademark rights and other rights similar thereto (hereinafter referred to as “rights”), etc. to the price paid or to be paid actually by a buyer for the goods sold to be exported to Korea (Article 30(1)4 of the Customs Act): Provided, That the price for using “the right to reproduce a device or original idea on other goods in Korea using the imported goods in which a specific device or original idea is embodied” (hereinafter referred to as “the right to reproduce”) shall be excluded from the royalty on the use of the right added to the transaction price (see Article 19(2) of the Enforcement Decree of the Customs Act

As such, since the price for the use of the right of reproduction is excluded from the customs value of imported goods, customs duties should be imposed according to the nature and quantity of goods at the time of filing an import declaration (the main sentence of Article 16 of the Customs Act), and the right of reproduction may be at issue after the import declaration. Since it is not related to the imported goods itself at the time of filing an import declaration, the price for use should be

In light of the structure, language, content, legislative intent, etc. of the relevant provision, it is reasonable to deem that the consideration for the use of a specific work embodied in imported goods by means of public performance, broadcasting, etc. in Korea cannot be included in the dutiable value of imported goods pursuant to Article 19(2) of the Enforcement Decree of the Customs Act.

Articles 16 and 30(1)4 of the Customs Act; Article 19(2) of the Enforcement Decree of the Customs Act

Rers Korea Limited Liability Company (Attorney Cho Jae-soo et al., Counsel for the plaintiff-appellant)

Head of Seoul Customs Office

Seoul High Court Decision 2017Nu70931 decided August 29, 2018

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The dutiable value of imported goods for the imposition of customs duties is the transaction price adjusted by adding to the price actually paid or payable by a buyer for the goods sold to be exported to Korea as the price for using patent rights, utility model rights, design rights, trademark rights, and other rights similar thereto (hereinafter “rights”), etc. (Article 30(1)4 of the Customs Act: Provided, That the price for using “the right to reproduce a device or original idea on other goods in Korea using the imported goods in which a specific device or original idea is embodied” (hereinafter “right to reproduce”) shall be excluded from the royalty for the use of the right added to the transaction price (see Article 19(2) of the Enforcement Decree of the Customs Act; hereinafter “instant provision”).

As such, since the price for the use of the right of reproduction is excluded from the customs value of imported goods, customs duties should be imposed according to the nature and quantity of goods at the time of filing an import declaration (the main sentence of Article 16 of the Customs Act), and the right of reproduction may be at issue after the import declaration. Since it is not related to the imported goods itself at the time of the import declaration, the price for use shall be treated separately from

In light of the structure, language, content, legislative intent, etc. of the relevant provision, it is reasonable to deem that the consideration for the use of a specific work embodied in imported goods as a means of public performance or broadcasting in Korea cannot be included in the dutiable value of imported goods pursuant to the instant overall provision.

2. Review of the reasoning of the first instance judgment cited by the lower court and the evidence duly admitted by the lower court reveals the following facts.

(1) 원고는 미국의 종합 미디어 그룹인 타임 워너(Time Warner)의 계열사인 터너엔터테인먼트네트웍스코리아 유한회사가 지분 100%를 소유하고 있는 TV 채널 사업자로서, 해외 애니메이션 등 영상물을 수입하여 자신이 운영하는 애니메이션 방송 채널인 ‘○○○○○○’ 등을 통해 방영하고 있다.

(2) The Plaintiff concluded a contract with the Plaintiff to pay the royalty (hereinafter “the royalty of this case”) to the Asian Pacificathing system (Turner Brocacasting) and Dystrost Korea Co., Ltd. (hereinafter “the royalty of this case”), and to broadcast video works, such as an animation, etc. produced by foreign producers from the oath of this case, through TV in Korea on a one-year or a several-year basis, and to pay the royalty of this case (hereinafter “the royalty of this case”).

(3) From August 31, 2010 to June 16, 2015, the Plaintiff imported posters video tapes, including animation, from overseas manufacturers (hereinafter “instant product”). During that process, the Plaintiff filed an application for import declaration and inventory clearance without adding the royalty to the dutiable value, and the head of the Incheon Customs Office accepted such application.

(4) The Defendant issued a revised and notified the Plaintiff of KRW 531,09,794,790, total of KRW 162,73,790, and penalty tax, KRW 162,79,790 (hereinafter “instant disposition”) from August 27, 2015 to January 27, 2016, on the ground that the instant license fee was paid in relation to the instant goods and was included in the royalty under Article 30(1)4 of the Customs Act and Article 19(2) of the Enforcement Decree of the Customs Act, on the grounds that it fell under the royalty and was omitted.

3. Examining these facts in light of the aforementioned provisions and legal principles, since the instant license fee was paid for the use of the right to reproduce video works, such as an animation, etc., the work embodied in the instant goods, through TV, etc., in Korea, by the method of broadcasting via the received media, it is reasonable to view that the instant license fee constitutes a consideration for the use of the right to reproduce, which cannot be included in the dutiable value of imported goods under the instant provision.

Nevertheless, the lower court erroneously presumed that only the right to produce a new material using a specific device or original idea contained in imported goods constitutes the right of reproduction, and determined that the instant royalty cannot be deemed the consideration for the use of the right of reproduction. In so determining, the lower court erred by misapprehending the legal doctrine on the scope of the right of reproduction under the overall title of this case, thereby adversely affecting the conclusion of the judgment.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)