[1] In a case where a false declaration is filed without an intention to export, import, or return goods, whether punishment may be imposed pursuant to Articles 137(1) and 188(1)2 of the former Customs Act (negative)

[2] The case holding that since a false declaration was filed without an intention to export goods, it cannot be viewed as a crime of false declaration under the Customs Act

[1] Considering the language and text of Articles 137(1) and 188(1)2 of the former Customs Act (amended by Act No. 6305 of Dec. 29, 200), and the purpose of the former Customs Act is to contribute to the development of the national economy and to secure revenues from customs duties by ensuring appropriate imposition and collection of customs duties and customs clearance for exported and imported goods (Article 1 of the same Act), Article 137(1) of the same Act imposes a duty to report on those who wish to export, import, or return goods for the proper imposition and collection of customs duties and customs clearance for exported and imported goods. In order to punish those who failed to fulfill the above duty to report or who make a false declaration contrary to the duty to report, the above penal provision cannot be applied to those who make a false declaration without intent to export, import, or return goods.

[2] The case holding that in case where a false export declaration was filed as if the goods were exported in order to refund the value-added tax after obtaining an export declaration certificate from a customs office even though the sale of goods to Russian merchants in Korea was not an act of export, a false declaration was filed without the intent to export the goods, and thus, it cannot be applied as a crime of false declaration under the Customs Act

[1] Articles 137(1) and 188(1)2 (see current Article 241) of the former Customs Act (amended by Act No. 6305 of Dec. 29, 200) / [2] Articles 137(1) and 188(1)2 (see current Article 276(1)4) of the former Customs Act (amended by Act No. 6305 of Dec. 29, 200) / [2] Articles 137(1) (see current Article 241), 188(1)2 (see current Article 276(1)4), 196 (see current Article 280) of the former Customs Act (amended by Act No. 6305 of Dec. 29, 200)

Defendant 1 and four others

Defendants

Attorney Kim Jong-il

Seoul District Court Decision 2002No3775 delivered on July 3, 2002

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

Before determining the grounds of appeal, we examine it ex officio.

Article 137(1) of the former Customs Act (amended by Act No. 6305 of Dec. 29, 200; hereinafter the same) provides that "in cases where it is intended to export, import (including bringing in to a free export zone) or return goods, 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." Article 188(1) provides that "any person who falls under any of the following subparagraphs shall be punished by the cost of the goods or a fine not exceeding 20 million won, whichever is higher." Article 137(1) provides that "in filing a declaration under the provisions of Article 137, a person who fails to report or files a false declaration on the matters provided for in Article 137(1) or who files a false declaration on the import of the goods in violation of the above Act." Article 196 provides that "any officer, employee, or employee of a corporation shall be punished for violating the provisions of Article 137(1) of the former Customs Act for the purpose of imposing customs duties on the import or import goods.

According to the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below, the court below convicted Defendant 1, 2, and Nonindicted 1 of the facts charged in the case where each of the above representative directors of the above defendant 1, 2, and Nonindicted 1 committed a violation as above in relation to the company's business, and punished by applying Articles 188 (1) 2, 137, and 196 of the above Act, even though the sale of goods to the merchants of Russia in Korea was not an export act, as if they were exported with the export declaration certificate issued by the customs office in order to refund the value-added tax.

However, even according to the above facts charged, Defendant 1, 2, and Nonindicted 1 filed a false report without intent to export goods. Thus, according to the legal principles as seen earlier, the Defendants cannot be viewed as Article 188(1)2 or Article 196 of the above Act. Therefore, the judgment of the court below cannot be reversed.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)