(a) The case holding that the decision of the court below is justifiable in calculating the dutiable value of the goods excluded from customs duties on the basis of the price indicated in the list of imported goods without refund according to the reasonable criteria under Article 9-8 of the Customs Act, which is the last supplementary method in determining the dutiable value of the

B. Whether the green used in sealed import is included in “when it is impossible to confiscate”, which is the reason for the additional collection under Article 198(3) of the Customs Act, in a case where the green used in sealed import was seized by a coastal guard in a foreign country (affirmative)

A. The case affirming the court below's measure of calculating evaded tax and additional collection based on the supplementary method under Article 9-8 of the Customs Act, since the customs value cannot be calculated based on the method under Article 9-3 of the same Act, on the grounds that the actual purchase price of sealed imported goods for melting is not able to be determined by the supplementary method under Articles 9-4 through 7 of the same Act, although the customs value is successively determined by the supplementary method under Article 9-4 of the same Act, since the transaction price of the same kind and quality goods for melting imported goods is higher than the price on the non-exchange imported goods price list, which can be determined by the method under Article 9-4 of the same Act, as well as the defendant would be more unfavorable if such supplementary method is applied.

B. For the purpose of Article 198(3) of the Customs Act, the term “where confiscation is impossible” means not only the case where the offender consumes or conceals it, etc. but also the case where the loss of ownership or possession may accrue from the offender’s interest as well as the case where the offender’s profit constitutes damage or loss which is not related to the offender’s interest, or any other obstacle due to the location. Thus, the use of green sea imported by the fishing vessel is also seized from the Chinese coastal coast by the coastal guard.

(a) Articles 9-3 through 8 and 180 of the Customs Act;

A. Supreme Court en banc Decision 73Do2625 Decided June 22, 1976 (Gong1976, 9261), Supreme Court Decision 83Do2575 Decided August 20, 1985 (Gong1985, 1279)

A

Defendant

Attorney B and one other

Seoul High Court Decision 91No1872 delivered on August 16, 1991

The appeal is dismissed.

70 days of detention after an appeal shall be included in the calculation of the original sentence.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1 by a public defender and ground of appeal No. 2 by a private defense counsel

According to the reasoning of the judgment below, the court below adopted the first instance court's judgment which calculated the amount of customs duties to be evaded and the amount of customs duties to be collected by the defendant on the basis of each of the above prices, based on the premise that the defendant tried to import by using his fishing vessels from Hong Kong, and the 2,250 kilograms of New Zealand Green Industries, which were seized by the Chinese Coast Guard, is used in melting the cell state, by applying the price of the free exchange imported goods in New Zealand prescribed in the table of prices of imported goods issued by the Korea Customs Service, and the estimated and appraised price equivalent to the customs value of the above smuggling goods and the domestic wholesale price, respectively.

Such measures of the court below are justified in the measures of the court below, and there are no errors in the misapprehension of facts against the rules of evidence, such as the theory of lawsuit, in light of the purport that the defendant's statement or theory that the green use of this case is much higher than the green use batteries, and the defendant's statement or theory rejected the invoice's entries on the purchase price of the above green use.

In addition, according to the provisions of Article 9-3 through 8 of the Customs Act, the customs value of imported goods shall, in principle, be determined by the transaction price adjusted by adding the amount under each subparagraph of Article 9-3 (1) of the same Act to the price actually paid or payable by the buyer for the goods exported to Korea. If it is impossible to determine the customs value by such method, the customs value shall be determined by applying the methods under Articles 9-4 through 8 of the same Act in order. However, in this case where there is no evidence to ascertain the actual purchase price for the above smuggling, other than the defendant's statement or invoice rejected by the court below, the customs value cannot be determined by the methods under Article 9-3 of the Customs Act, such as small theory, and it is just to determine the customs value by the supplementary method under Articles 9-4 through 7 of the same Act, but the fact inquiry method for the Korean Pharmaceutical Association and the above appraisal statement are more reasonable and more reasonable than the above customs value of the imported goods at least 80 U.S. dollars price per kilogram, which is calculated based on the final standard for determining the customs value per kilogram.

2. Regarding ground of appeal No. 1 by a private defense counsel

In light of the records, although the court of first instance calculated the amount of customs duties that a defendant intended to evade based on the arrival price of the smuggling of this case, and it is not calculated by the domestic wholesale price, and the counsel also asserted that the first instance court's measure on the calculation of arrival price in the statement of grounds for appeal is unreasonable, the court below erred in its reasoning of appeal, which led to the misapprehension of the grounds for appeal that the first instance court's domestic wholesale price approval measure is legitimate, and thus, the court below reversed the first instance judgment and decided again by accepting other grounds for appeal, and the court below reversed the first instance judgment, and calculated the amount of customs duties that the defendant attempted to evade based on the price. Accordingly, the court below's determination on rejection of the genuine grounds for appeal of this case can be deemed as including the purpose of the first instance judgment, and there is no error of law of omission of judgment that affected the conclusion of the judgment. The arguments are without merit.

3. On the third ground for appeal by a private defense counsel

Article 198 (3) of the Customs Act provides that when all or part of the goods subject to forfeiture cannot be forfeited, an amount equivalent to the domestic wholesale price of the goods subject to forfeiture as at the time of offense shall be collected from the offender. The term "when forfeiture is impossible" of the same provision provides that the offender's consumption, concealment, etc. of such goods can bring about the loss of ownership or possession into the interest of the offender, and includes not only the case due to damage or loss which is unrelated to the interest of the offender, or any other obstacle due to the location. (See Supreme Court Decision 73Do2625 delivered on June 22, 1976; Supreme Court Decision 83Do2575 delivered on August 20, 1985). Thus, the court below's decision is justified in the misapprehension of legal principles as at the time of forfeiture of the domestic wholesale price from the Defendant's domestic wholesale Price as at the time of offense.

4. As to ground of appeal No. 2 by a public defender

In this case where imprisonment for less than 10 years is imposed, the assertion of unreasonable sentencing, such as the theory of lawsuit, cannot be a legitimate ground for appeal. The arguments are without merit.

5. The appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)