Defendant 1 and one other

Freeboard Kim-ok (prosecutions) and Kim Jong-chul (trials)

Attorneys Jeon Byung-hoon et al.

1. Defendant 1

A defendant shall be punished by imprisonment for not less than eight months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

The sentence of additional collection shall be suspended against the defendant.

2. Defendant 2 corporation

A defendant shall be punished by a fine not exceeding 50 million won.

In order to order the provisional payment of an amount equivalent to the above fine.

The sentence of additional collection shall be suspended against the defendant.

Defendant 1 is the actual operator of Defendant 2 corporation located in Gangdong-gu Seoul ( Address omitted), and Defendant 2 is the corporation established for the purpose of manufacturing and selling textile articles and clothing.

1. Defendant 1

(a) Violation of the Customs Act;

A person who exports goods shall report to the head of a customs office the name, standard, quantity and price of the relevant goods, and other matters prescribed by Presidential Decree.

Nevertheless, the Defendant, while operating the above Defendant 2 corporation, exported the amount of 2PS 103 points to Japan without filing an export report with the head of the customs office on July 3, 2008, 314,150 UN (Korean Won 2,91,461) through ○○ Trade (the Nonindicted Party: the Nonindicted Party) from that time, the Defendant exported the goods into Japan through the transportation chain ○○ Trade (the representative: the Nonindicted Party) from that time until March 31, 2012 by the following method until March 31, 2012: (a) all of the aforementioned 413,991 points, including clothes, etc., 405,322,390 UN (Korean Won 5,422,916,050).

(b) Violation of the Foreign Exchange Transactions Act;

Where a resident makes payment, etc. with a person who is not a party to the relevant transaction, in settling claims and debts arising from transactions or acts between a resident and a nonresident, he/she shall report the method of payment or receipt in advance to the Minister of Strategy and Finance

Nevertheless, around July 25, 2008, the Defendant did not report in advance to the Minister of Strategy and Finance at the office of the above Defendant 2 Co., Ltd. and received 65,000,000 UN (Korean Won 614,815,500) from the person in charge of ○○ Trade without reporting it to the Minister of Strategy and Finance. From that time until January 23, 2009, the Defendant received 39,787,685 (Korean Won 5,520,40,40,865) on six occasions, including the contents in attached Table 2, from January 23, 2009.

2. Defendant 2 corporation

Defendant 1, who is the actual operator of the defendant, committed the above violation in relation to the defendant's business at the time, time, and place like Paragraph 1.

1. The defendant 1's partial statement

1. Partial statement of the Nonindicted Witness

1. Some statements made by the prosecutor concerning Defendant 1 in the interrogation protocol of the prosecution;

1. A written accusation;

1. ○○ Trade Account Book, Defendant 2 Company, etc. (Evidence No. 5), investigation report (Attachment of export declaration certificate in the name of Defendant 2 Company, No. 9) and investigation report (to be attached to the examination report of the relevant case, No. 13 of the evidence list);

1. The details of the use of the export surface (No. 1), the response to the commission of the delivery of documents by the Seoul Customs Office (No. 2) and the response to the fact-finding by the △△△ company (No. 3);

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

○ Defendant 1: Articles 269(3)1, 241(1) of the Customs Act; Articles 28(1)2 and 16 subparag. 3 of the former Foreign Exchange Transactions Act (amended by Act No. 9351, Jan. 30, 2009; hereinafter the same shall apply); Articles 28(1)2 and 16 subparag. 3 of the former Foreign Exchange Transactions Act; hereinafter the same shall apply)

○ Defendant 2: Article 269(3)1, Article 241(1), and Article 279(1) of the Customs Act; Article 28(1)2, Article 16 subparag. 3, and Article 31 of the former Foreign Exchange Transactions Act

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (excluding the violation of each Customs Act against Defendant 2 Stock Company)

1. Determination of fines;

○ Defendant 2 Company: Each violation of the Customs Act shall be punished by a fine for each violation, and each violation of the Foreign Exchange Transactions Act shall be punished by a fine, and each violation of the Foreign Exchange Transactions Act shall be punished by a fine by aggravating concurrent crimes, and each

1. Suspension of execution;

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

1. Order of provisional payment;

○ Defendant 2 Corporation: Article 334(1) of the Criminal Procedure Act

1. Suspension of sentence of collection;

Article 59(1) of the Criminal Act, Articles 282(2) and (3), and 269(2) of the Customs Act (the amount to be collected shall be set at KRW 5,422,916,050, but the declaration shall be postponed considering the fact that the gains accrued from the export without filing a declaration are not so high.)

In light of the fact that Defendant 1 did not have any criminal record of the same kind and suspension of execution, and the Defendants appears to have caused the instant crime due to lack of understanding of the relevant laws and regulations, and that the Defendants seems to have had no profit from the instant crime.

1. Parts of violation of the Customs Act

A. As to the assertion that an export declaration was filed

The Defendants and defense counsel asserted that since the Defendants were exported to Japan after filing an export declaration on the items prior to clothes through ○○ Trade and the store of the place of residence, etc., they did not constitute a violation of the Customs Act by smuggling export.

In order to export, import or return goods under Articles 242 and 241 of the Customs Act, the name, standard, quantity and price of the goods concerned and other matters prescribed by Presidential Decree shall be reported to the head of the relevant customs office. In such cases, the declaration shall be made in the name of the owner of the goods or the owner of the goods, etc.: Provided, That in cases of export declaration, the declaration may be made in the name of the person who manufactured and supplied the relevant goods to the owner of the goods.

However, according to the above evidence in this case, ○○ Trade shall be deemed to have filed an export declaration most of the clothes at the request of the Defendants for export, and the export declaration was made through the place of residence close, etc., but examining the contents thereof, it shall be deemed that Defendant 2 had filed an export declaration with Defendant 2 as the export declaration for the parts of the clothes directly manufactured by Defendant 2 as well as only the export declaration with respect to the clothing purchased from the merchants of the East-west and South-west, which was purchased by Defendant 2 as the export declaration for the third company that is irrelevant to the Defendants, the Dongdaemun-west and South-west, and thus, it shall not be deemed to have been a legitimate export declaration for the export declaration as long as the export declaration differently from the fact that the export declaration was made. The above argument is without merit.

B. As to the assertion that there was no intention

The Defendants and the defense counsel asserted that the Defendants did not have intention because they were entirely aware of the fact that the export declaration was made on the basis of the export procedure to ○○ trade, and that there was no intention on the part of the Defendants. However, according to the aforementioned evidence, the Defendants were found to have failed to dolusent intent as to the fact that at least there was no export declaration on their export declaration on the basis of their export declaration. The above assertion has no reason.

2. The violation of the Foreign Exchange Transactions Act

A. As to the assertion that punishment was abolished due to the amendment of the Foreign Exchange Transactions Act

Although Articles 28(1)2 and 16 subparag. 3 of the former Foreign Exchange Transactions Act were punished for the receipt of a third party, the Defendants and the defense counsel were punished for a violation of the Foreign Exchange Transactions Act since February 4, 2009, and the Foreign Exchange Transactions Act was amended to the present time, and were punished for a violation of the said Act, and were punished for a fine for negligence. However, the part of the violation of the Foreign Exchange Transactions Act is less than 2.5 billion won as concurrent crimes. Thus, the Defendants asserted that the Defendants were not guilty on the ground that the violation of the said Act constitutes “where the act did not constitute a crime by the alteration of law after the crime,” pursuant to Article 1(2) of the Criminal Act.

However, the provisions of Article 1(2) of the Criminal Act shall apply only to cases where the evaluation of acts deemed a crime in the past has changed due to the change of the legal ideology that was the reason for the enactment of the penal law, and the evaluation thereof has been recognized and punished as a crime, or where the Acts and subordinate statutes have been amended or amended to cope with the special needs at that time due to the change of other circumstances, not to the change of the legal ideology, but to cope with the change of other circumstances, if the Acts and subordinate statutes have been amended or amended to cope with the special needs at that time, the punishment shall be maintained based on the circumstances at the time of the act even after the last observation of the acts committed before the amendment or repeal of the statutes (see, e.g., Supreme Court Decision 2004Do5890, Jan. 14, 2005).

However, in the case of this case, the above amendment of the Foreign Exchange Transactions Act is not a change in the legal ideology but a change in the legal ideology but a change in the situation where the law was enacted or amended to cope with special needs at that time, and thus, it cannot be said that the above amendment of the Foreign Exchange Transactions Act constitutes a violation of the law. The above assertion is not reasonable. The above amendment of the Foreign Exchange Transactions Act is not a change in the legal ideology but a change in the legal ideology, and thus, it constitutes a violation of the law to cope with the above special needs at that time.

B. As to the assertion that the △△ Party received directly from the △△ Trade

The Defendants and the defense counsel asserted that the Defendants cannot be deemed to have received the full amount of the export price of this case from ○ trade, “the party to the transaction”, as they participated in the field where △△△ trade directly pays part of the export price of this case to ○○ trade and received the above price from △△ trade.

However, according to the above evidence, it is only recognized that the Defendants were the parties to the transaction that exported the instant clothing, such as Ethth Services, and that △△ Trade is only an import agent of the Japanese customer, such as Eth Services. Furthermore, even if the Defendants directly received part of the export price of this case from △△ Trade in the presence of ○○ Trade, in light of the circumstances where there was no direct contractual relationship between the Defendants and △△ Trade, it is merely a reduced act of △△ Trade in which ○○ Trade made payment to ○○ Trade, and ○○ Trade again made payment to the Defendants. The above assertion is without merit.

C. As to the assertion that ○ trade does not constitute “a person who is not a trading party”

The Defendants and the defense counsel argued that the Defendants delegated not only export agency but also the receipt of export proceeds to the ○○ Trade side, and that ○○ Trade also received export proceeds from △△ trade and delivered them to the Defendants as they are. Thus, ○○ Trade cannot be evaluated as “a person who is not a trading party”.

However, according to the above evidence, ○○ trade entered into a contract for the transportation of goods, export agency, receipt and delivery of export proceeds, etc. with the Defendants, and then accepted the documents from the Defendants to Japanese customers, and paid foreign exchange (N) remaining after deducting transportation charges, etc. from the export charges from △△ trade on the part of the import agent of the Japanese Trading Agency. However, as long as ○○ trade cannot be seen as a ○○ trade as an employee, etc. of the Defendants, ○○ trade still constitutes “a person who is not a trading party” in relation to the Defendants. The above assertion is without merit.

[Attachment]

Judges Choi Jong-chul

1) "Certified customs broker, etc." means a licensed customs broker, customs service corporation, or customs service corporation under the Licensed Customs Brokers Act (Article 86(1) of the Customs Act).

(2) Supreme Court Decision 201Do17639 Decided April 26, 2012 (Supreme Court Decision 2011Do17639 Decided April 26, 2012; 201Do17639 Decided that the sentence of the Foreign Exchange Transactions Act, which punishs capital transactions without reporting, was somewhat revised, and the subject of criminal punishment was changed to an act exceeding one billion won without reporting amount, the case affirming the lower court’s determination that Article 1(2) of the Criminal Act does not apply to an amendment of the aforementioned law, not to an amendment of the legal ideology, but to cope with special needs at that time due to changes in other circumstances (see, e.g