A. Concept of import under the Customs Act

B. Recognition of revenues that constitute the elements of a evasion of duty in the event that a secondhand vessel purchased a secondhand vessel from Japan to sail into an ocean-going vessel and made it convenient to the Republic of Pakistan, and the existence of a crime of evasion of duty

(c) Whether the convenience loading of ships constitutes fraud or other wrongful means under the Customs Duties Act; and

A. Customs duties means taxes imposed when goods are loaded onto a certain customs territory (i.e., a territory other than a bonded area from the territory of the country) and customs duties are imposed when goods arrive in Korea from a foreign country (in the case of goods passing through a bonded area, taking away from a bonded area). The term "human taking place" in this context means taking foreign goods out of the detention under the Customs Act and keeping them in a free distribution state as domestic goods.

B. The defendant purchased a ship from the Japanese vessel owner on a bareboat or installment basis and repaired it at a shipbuilding yard in the Republic of Korea in which repair costs are low, and the defendant cannot be said to have attempted to import it for free circulation or use in the domestic shipping market in case where the defendant, with the intention to load the ship in the sea route between China and Japan, has loaded the ship into the sea route, and the defendant cannot be said to have imported it without paying customs duties with the knowledge that it was goods on which customs duties are imposed in the above ship's entry report for repair purposes. Thus, the scope of tariff evasion cannot be acknowledged.

C. The practices of convenience value are an inevitable economic phenomenon of international shipping lines to secure the international competitiveness of vessels, and international practices generally accepted by all shipping countries in the world, and if the ownership of convenience value vessels is punished, not only would the competitiveness of our shipping lines be lowered, but also would infringe upon the constitutional security of property by excessively limiting the freedom of vessel operation or the choice of vessel nationality. Therefore, it cannot be deemed as having no social reasonableness, and therefore, it cannot be punished as a crime of evading customs duties by deeming that the convenience value of vessels falls under cases in which fraud or other unlawful methods are used under the Customs Act.

Article 2 of the Customs Act, Article 180 of the Customs Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Defendant

Defendant and Prosecutor

Busan District Court Decision 9Da1292 delivered on October 15, 1991

The judgment of the court below is reversed.

The defendant shall be innocent.

The prosecutor's appeal is dismissed.

1. Factual basis

Comprehensively considering the evidence duly examined by the court below in light of the records, the following facts are recognized as to the background and progress of the case.

On 1985, the Defendant purchased at 500,000 United Nations a middle-sized vessel, which was manufactured in Japan from the 1967.23 tons of Japanese nationality in 1968, which was the president of New Trading Co., Ltd. (New Support Co. Ltd.) located in east-gu, which became aware of in the course of the previous transaction from 1985, for the purpose of exporting used vessels. The Defendant purchased at 500,000 United Nations a middle-sized vessel, which was manufactured in Japan in 1968 from the 1968, which was the Japanese nationality of Japan. The Defendant was able to change the name of the vessel as Colombia with the said vessel’s nationality, operated the freezing fishery products with Thailand, Indonesia, Australia, Australia, and Australia, and sold the said vessel to Africa or shipping company located in Africa to sell the said vessel in full amount of its operating profit.

그 당시 피고인은 위 선박을 소유하기 위하여 1985.3.경 파나마국 파나마시를 소재로 하는 부산 이스턴 쉬핑주식회사(Eastern Shipping Busan S.A., 이하 명목상 회사라 한다)를 설립하였는데, 위 파나마국의 법인등기부상 사장은 피고인이었으며, 부사장은 위 후꾸찌 도시오, 비서는 후꾸찌 카쥬꼬, 회계는 후꾸찌 나미로 등록되었다. 내국인이 해외에 자본을 투자하여 사업을 영위하려면 한국은행으로부터 해외투자허가를 받아야 함에도 피고인은 위 회사를 설립함에 있어서 그와 같은 투자허가를 받았거나 실제로 위 법인에 어떠한 자금도 투자한 사실이 없었으며, 위 회사는 실제상 사무실이나 주재원도 없이 서류상으로만 존재하는 회사였다.

After that, the Defendant again received the proposal that he would purchase and operate a heavy freezing transport vessel that is sold abroad due to lack of competitiveness in Japan from the above non-indicted Yan City. The Defendant’s vessel that the Defendant agreed to purchase was Japan, and the name of the vessel was the 18th ridge (hereinafter “the instant vessel”).

However, in Korea at the time, export and import notice (No. 89-40 of the Ministry of Trade, Industry and Energy No. 89-40 of Dec. 9, 1989) under Article 35 of the Enforcement Decree of the Foreign Trade Act (No. 89-42 of the Ministry of Trade, Industry and Energy No. 89-19 of Dec. 19, 1989), among used ships, deep-sea fishing and freezing transport vessels are not less than 440 tons, and only items approved by the Minister of Trade, Industry and Energy for the verification of actual consumers can be imported. The same kind of vessel could not be imported

According to the ship sales contract of this case concluded on June 23, 1990 between the defendant and the above company, the price was 2,000,000 United Nations, and the payment was agreed to be made by the defendant for the profits that the defendant acquired by operating the above ship.

In accordance with the above contract, the Defendant: (a) as to the instant vessel on September 5, 1990, the Plaintiff was the owner of the said nominal Busan Eston Co., Ltd.; (b) as to the instant vessel, the name of the vessel was changed from the 18 New Young Port to the New Young Port in Korea; and (c) was registered as the nationality of Pakistan at the Embassy of Pakistan in Korea; and (d) entered into the port of Busan on October 5, 1990 to repair the provisional nationality certificate. The Defendant accepted the said vessel at a time one-month schedule from the Republic of Korea at low repair costs to repair the said vessel; and (c) was planned to receive the said vessel inspection and take the vessel into the Republic of Korea crew to embark on the said vessel to the business of transporting the booms from the Busan Esong Port.

On October 5, 1990, the Defendant was under criminal investigation and detained on October 16 of the same year on the ground that the above vessel was illegally introduced a secondhand fishing vessel prohibited from import from the Busan Customs office, and was detained on October 16 of the same year. At the time of arrest, the Defendant possessed a vessel transfer permit, an export permit, an export permit, and a vessel nationality certificate, etc., and the shipowner and the address were the Defendant and its address under the International Telecommunication Permit for Trade Maritime Affairs and Fisheries.

After that, the defendant has repaired the above vessel by inserting gold KRW 7,00,000, and the above vessel has been operated from the port of Cheongdo in China to the port of Cheongdo in July 3, 1991 for the transportation of the vessel from the port of Cheongdo in China.

2. Prosecutor's facts charged and the judgment of the court below

The summary of the facts charged by the prosecutor against the defendant is as follows.

The Defendant, with the knowledge that the instant vessel of this case, the age of which is 16 years and 79.9 tons, was unable to be imported under the current law, had the intent to achieve the purpose of import by pretending to do so, and purchased the instant vessel from Non-Party New-Development Trading Company on June 23, 1990 at the price of KRW 2,00,00,000 for repair, and on September 5, 1990, the Defendant had already registered the establishment of the Defendant as his representative around March 1985 at the Roma Embassy in Korea with the name of the Defendant on September 5, 1990, as the owner of the processing company, the name was changed to the name of the Republic of Korea, and the name was issued the certificate of the ship’s nationality on the basis of this. After entering Busan on October 5, 1980, the Defendant introduced the same vessel’s entry into the Busan Customs on the same person’s behalf as the vessel entered the port for repair, thereby introducing the said vessel’s market price to KRW 16, 16,5080,50.

The court below accepted all the facts charged by the prosecutor, and assessed the domestic wholesale price of the ship of this case as 29,155,000 won, and recognized the fact that the defendant evaded 473,040 won of customs duties and defense taxes on the above recognized dutiable value by deceit or other unlawful means, sentenced the defendant to a suspended execution of one year, and at the same time forfeited the ship of this case from the defendant.

3. Summary of grounds for appeal;

The gist of the grounds for appeal of this case by the prosecutor is that the defendant was not subject to the disposition of notification three times due to the violation of the Customs Act, and the sentence imposed by the court below in light of the case of this case where the ship, the import of which is prohibited under the current law, is unfair because the sentence imposed by the court below is too uneasible. The court below ruled that the ship of this case which was not seized even though the prosecutor was sentenced to the collection of 166,317,410 won, was confiscated, and there was an error

The summary of the grounds for appeal by the defendant is that the defendant was delegated with the right to operate the ship of this case from his relatives in Japan and was repaired in Korea with low repair costs, and did not acquire the ship of this case, so there was no criminal intent of evading customs duties, and in this case there was no crime of evading customs duties, the court below convicted the defendant, and the judgment of the court below is erroneous in the misapprehension of facts, and the sentencing of the defendant is unfair because the defendant's occasional overseas business trip is too unreasonable.

4. Determination on the grounds for appeal

First, the defendant's grounds for appeal are examined.

The court below concluded that the defendant's timely so-called of the facts charged was evaded customs duties by fraud or other improper means, and found the defendant guilty. Thus, it will examine the defendant's awareness of the revenue that constitutes the elements of a customs evasion and whether the defendant had the criminal intent of evading customs duties, and whether the defendant imported the above ship by fraud or other improper means.

(a)the peculiarity of the vessel and the criminal intent of evading customs duties on its import;

In the case of this case, if the defendant actually purchased a foreign ship and registered it to the Ministry of Convenience without acquiring a Korean nationality, in particular, if the ship is an ocean-going ship, it shall be deemed that the import was made if the ship was an ocean-going ship, and if the defendant acquired the ownership of the ship of this case by a sales contract with the above Japanese vessel owner, and further, it shall be deemed that the defendant was aware of the fact that the crime of evading customs duties under the Customs Act was prescribed as

The view of the investigating authority, which was investigated into the crime of this case, argues that the concept of import under the Customs Act refers to that foreign goods take place in the Republic of Korea beyond the customs line. The defendant reported the import declaration and licensing procedures at the time of entry of the owned vessel and falsely reported the purpose of entry into the port of our country (the vessel previously purchased in the same form cannot be seen as having entered the port of our country) and that the defendant did not acquire the ownership of the vessel of this case because he had all rights documents on the vessel of this case as stated in the above decision. Accordingly, the defendant asserted that there was proof on the fact that he acquired the ownership of the vessel of this case since he had been in possession of all rights documents on the vessel of this case. Accordingly, the defendant asserted that the right to operate the old vessel of this case was delegated only by the urban Doo after the above indictment and accepted them, and that he did not have acquired the ownership of the vessel of this case by bringing them into the dissolved goods between China and Japan and did not acquire the ownership of the vessel of this case.

The term "one-time customs duty" means a tax imposed on goods from a specific customs territory (i.e., a customs territory excluding a bonded area from the national territory) when they are loaded onto the Republic of Korea. According to Article 2 (1) of the Customs Act, the term "import" means taking from a foreigner goods arriving in the Republic of Korea from a foreign country into the Republic of Korea (in the case of goods passing through a bonded area, taking them out from a bonded area). The term "nivement" here means taking foreign goods out of the detention under the Customs Act into the Republic of Korea as domestic goods in the state of self-distribution.

However, it is necessary to pay attention to the fact that the vessel has a different feature from that of ordinary imported goods (see Article 6 (2) of the Foreign Trade Act) which are movable property. This is because the vessel has nationality and loading and has the characteristics of its subject of rights, and in particular, in the case of ocean-going vessels, it has international characteristics and is distinct in that it is engaged in activities in international sea routes and international shipping markets regardless of the domestic shipping market.

According to the facts stated above, if the defendant was in a convenience shop for the ship of this case, it cannot be deemed that he intended to import the ship of this case for free circulation or use in the domestic shipping market (Article 6 of the Act shall not be Korean ships, but shall not transport passengers or cargo at the non-open port or between domestic ports, and shall not be traded in the domestic market, and it shall not be possible to provide security). Rather, as the defendant followed, it is more reasonable to view that the ship of this case was purchased from the above non-indicted 1's vessel of this case from the above non-indicted 1's vessel of this case or purchased it from the above non-indicted 1's vessel of this case under the condition of bareboat charter or installment and purchased it from the Korean crew to the Korean vessel of this case, and it cannot be said that the defendant acquired ownership prior to the completion of the price of the ship of this case's vessel of this case's arrival for the purpose of repair, and thus, it cannot be said that the defendant acquired ownership of goods from the foreign country of this case's importation of import goods for free use.

(b) A false and unlawful manner;

(1) The previous precedents on the convenience of the public.

The lower court determined that the Defendant, while purchasing the instant vessel, established a processing company in the Republic of Pakistan and established a processing company in the Republic of Korea, imported the instant vessel by means of deception or other unlawful means as stipulated in Article 180(a) of the Customs Act. If so, whether the Defendant’s possession of the vessel by means of convenience storage as above constitutes fraud or other improper means or not.

According to the previous Supreme Court precedents, in case where a company was formed as a producer to avoid punishment due to the purchase of a used ship, and the company entered into the port of Busan for repair of the ship, the company would evade customs duties by fraudulent or other illegal means and thereby constitute a crime of evading customs duties (Supreme Court Decision 89Do2587 delivered on March 27, 1990). However, the above precedents require a new review in light of changes in the meaning of the ship nationality system and the actual significance of the so-called convenience loading system.

(2) Changes in the meaning of the vessel nationality system

Modern shipping countries have demanded strict requirements concerning the granting of nationality to ships on the condition of booming national protection. Generally, their own ownership, their own approval ships, and their own construction in Korea have been subject to the requirements of nationality. Once nationality is granted as a result of registration, the flag of the registry has been free to fly the flag of the registry and navigate into the high seas, and the flag state has the authority to protect and control its nationality vessels at the same time. However, since the late 19th century, the principle of freedom of marine transportation has been generalized in accordance with the spirit of international law of sovereign equality. In particular, since the second World War, a registered vessel, which does not meet any of the requirements of the above 3rd requirements, emerged in the Republic of Korea. As a result, the vessel owners exercised the right to nationality favorable to the competitiveness of the vessel operation, and

(3) Legal assessment of convenience;

As such, the so-called convenience registry system has been born since the World War II, since the previous concept of the vessel nationality system has been changed, and the vessel owner has the right to nationality selection for the vessel owned by the vessel since the date of the World War II, and the countries (e.g., e., liberian, mar) attracting foreign vessels that have not previously been required in compliance with the demand of the vessel owners have not satisfied the requirements for granting the vessel nationality. The causes primarily led to the increase in the personnel cost of seafarers and the pressure of the crew union. In particular, since the 1980s, the vessel owners of advanced shipping countries have lost international competitiveness due to the increase in the personnel cost of seafarers and the pressure of the crew union.

In light of the legal form of operation of convenience cargo ships, ship owners establish a corporation on the documents (the "Yeban c-mpa company") in the country that is not almost regulated on the operation of ships, as well as facilitate the acquisition of ships, such as Liberia, Dou, Mana, Mana, etc., and take the form of operation by flying the flag of the country after registering the ship in their name after obtaining the certificate of ship's nationality from the country.

As such, the convenience cargo ships did not receive sufficient supervision and control from the flag state, resulting in problems in the safety of ship operation, seafarers' working conditions, marine pollution regulation, etc., which was adopted by the United Nations Conference on the Law of the Sea in 1958, provide that the treaties on the high seas adopted by the United Nations Conference on the Law of the Sea in 1958 should have a genuine connection between the ship and its registration state, and the treaties on the Law of the Sea in 1982 adopted by the third conference on the Law of the Law of the Sea in 1982 have been accepted, but its effectiveness has been expressed, and the existence or absence of the requirements has been continuously controversial in the international maritime community.

Nevertheless, convenience cargo ships have gradually increased as the inevitable result of the effort to strengthen the competitiveness of the shipping industry of the owners living in the international shipping industry, and each shipping country has no choice but to recognize this economic flow as a reality.According to the fact-finding reply to the Maritime Port Authority of the members, the Maritime Transport & Port Authority of the members, and the Korea Maritime Engineer Association, according to the fact-finding response to the fact-finding response, the number of convenience cargo ships among the world's merchant vessels has reached 1/3.

(4) The actual condition of convenience-free ships in our country

According to the fact-finding in Korea, at least 111 tons of convenience cargo units in 1991 are added to 1,00 tons of convenience cargo units in 191 (for these days, bareboat charters (which seems to include bare Pocha) and less than 100 units of acquisition of nationality are presumed to be included.

As such, most of the convenience cargo ships except for bareboat charters or large-scale vessels are small and medium-sized vessels, and operated by small and medium-sized marine transportation business operators or foreign shipping agencies, ship management business, or transportation brokerage business operators with the seafarer’s career. This is because small and medium-sized marine transportation business operators can easily operate competitive vessels with high-sized vessels or horse transportation brokerage business operators. In other words, our shipping company may operate competitive vessels with high-speed vessels through the introduction of high-speed vessels and new vessels at the domestic shipbuilding station by conditional bareboat charter for acquisition of nationality, but it is not easy for small and medium-sized business operators to find the above room.

In this regard, it is necessary to examine the special form of ship transactions conducted in accordance with the Japanese shipping policy (so-called "Sarterback system"). The Japanese shipping company charters or sells long-term small-term vessels to adjacent other countries, especially those shipping companies, such as Korea, and the counterpart foreign vessel continues to transport cargo by sub-chartering them to the original vessel (ordinary 3 to 5 years) by regular charter (ordinary 3 to 5 years), and the vessel's payment obligation is set off against charter claims during the charter period, and the other party acquires the full ownership of the vessel when the repayment of the principal and interest of the vessel is completed (in this case, Defendant also purchased the instant vessel in this form). If it is necessary to secure the required amount of the cost of the vessel, and then reduces the cost of the vessel's consolidation into the world (see, e.g., e., see, e., e., the 9th maritime shipping system).

(5) The direction of legal treatment for convenience-free vessels;

As seen earlier, convenience-free vessels are natural economic phenomena of international maritime transport services aiming at improving their competitiveness as the economic principles of capitalism. Such monarching efforts to live in the international maritime transport market cannot be avoided, and thus, if such regulations are reduced, it will only result in the decline of national shipping power. Considering these circumstances, some developed countries such as Norway or the United Kingdom, such as Norway, have established a second shipment system to prevent the transfer of nationality vessels from tax reduction or exemption or to provide similar treatment to convenience-free vessels, such as the recruitment of crew members.

In our country's situation, shipping authorities are not obliged to investigate the ownership and operation status of convenience cargo ships, and the legal treatment of them is merely a disguised foreign ship subject to port state control, or as seen in this case, regulations are being regulated, regulated, and consideration or support for them are not complete.In social aspects, it is difficult to deny that the interests of small and medium shipping operators who own or operate convenience cargo ships have been neglected at all times due to their efforts to protect the right of purchase of large-sized shipping companies or their policies to foster shipbuilding business.

In the case of our country where it is necessary to take new measures because it is not sufficient to secure the tonnage of vessels and has been reduced in the competitiveness of the shipping industry since the 1980s, the policies that consider convenience cargo vessels only as the target of the regulations should be avoided, and the introduction of the second loading system is considered to be urgent. If so, at least in the legal point of view, it is recognized as international practice to secure international competitiveness of vessels, and it should not be punished on the ground that the convenience cargo system used by many small and medium shipping enterprises as the convenience law in order to secure the international competitiveness of vessels should not be regarded as unlawful or unfair (see Article 20 of the Criminal Act, e.g., Article 20 of the Criminal Act, and our shipping authorities and customs authorities do not regard it as illegal).

In particular, when a defendant is punished in the same case as this case, it is difficult to avoid criticism that excessively limits the freedom of disposal or the freedom of business in relation to the guarantee of property rights under the Constitution and unreasonably limits the selection of nationality for a vessel with respect to the selection of nationality. Although customs duties on a vessel are merely 2.5%, it is necessary to apply a crime of evading customs duties to a vessel, if it is forfeited and impossible to confiscate, the amount equivalent to the domestic wholesale price of the vessel is additionally collected (Article 198 of the Customs Act).

There may be concerns over the harm caused by legitimate cases of permitting the transfer of convenience. However, in light of the fact that the large-scale shipping company, which receives national support, such as financing, allocation of sea routes, preferential exploitation of cargo, etc., in accordance with the shipping policy, does not think that the large-scale shipping company's possession of vessels would be convenient and convenient (see Articles 4, 6, 16, etc. of the Maritime Transport Industry Promotion Act). Even if a large-scale shipping company's removal of convenience, it is not clear that the actual vessel of convenience owned by Korean nationals will address a part of Korean shipping power of our country. In the case of regulating the transfer of convenience, it is difficult to secure vessels of small and medium-sized shipping companies.Second, in light of the fact that the regulation of the transfer of convenience, it is not a big problem that it would be difficult to prevent the securing of vessels of Korean nationals.Second, it is not clear that it would be clear that it would hinder the convenience of Korean nationals from dumping the nationality in competition, disrupt order in navigation or management of marine pollution, etc.

In conclusion, even if the defendant took a convenient method in purchasing the ship of this case, it cannot be viewed that he used so-called fraud or other improper means that lacks social reasonableness under our legal system.

C. Conclusion

Ultimately, there is no evidence that the Defendant was aware of the fact that the Defendant was importing the instant vessel, or that there was a criminal intent to evade customs duties, and even if the Defendant owned the vessel in accordance with the legitimate form of convenience, the so-called “the Defendant’s possession of the vessel” does not constitute fraud or other improper means.

Therefore, the so-called "the defendant's act of evading customs duties" falls under the case where there is no proof of criminal facts or no crime, and the charges of violation of the defense tax law established on the premise that the defendant's duty liability for duty payment with respect to the ship of this case is established also does not constitute a crime. Nevertheless, the court below found the defendant guilty. Thus, the judgment of the court below is erroneous in the misunderstanding of facts or the legal principles of evading customs duties

5. Judgment of party members

Therefore, a party member is reversed the judgment of the court below and it is decided as follows after pleading.

The gist of the facts charged by the prosecutor against the defendant is as stated in Paragraph 2 above, but it constitutes a case where the defendant's case does not constitute a crime or there is no proof of a crime, and thus, the defendant is acquitted.

On the other hand, the prosecutor's appeal on the premise that the defendant's case is guilty is dismissed without any justifiable reason.

It is so decided as per Disposition for the above reasons.

Judges Park Jong-dae (Presiding Judge)