2012No25 Violation of the Customs Act

South0 (000000 - 000000), Transport business

Incheon Residence

Standard place of registration:

Defendant

B. B. J. ( Indictment) and Kim Jong-se (Trial)

Attorneys Kim J-young (Korean National Assembly Line)

Seoul Central District Court Decision 201 High Court Decision 4962 Decided December 20, 2011

April 4, 2012

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

The Incheon Customs Office has a practice of not imposing customs duties on personal effects when an individual carries an agricultural product 40 g and 40 g in total, which does not amount to 80 km or less, and according to the above practice, the Defendant only transported the goods indicated in the annexed crime list of this case through one string, so the judgment of the court below is erroneous by misunderstanding the facts and adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The punishment sentenced by the court below (the fine of five million won) is too unreasonable.

2. Determination

A. As to the assertion of mistake of fact

According to Articles 241(2) and 96(1) of the Customs Act, travelers' personal effects and their personal effects are allowed to be exempted from customs clearance under Article 96(1) of the Customs Act or to be declared in a simplified manner prescribed by the Commissioner of the Korea Customs Service under the conditions as prescribed by the Presidential Decree. (hereinafter referred to as "simplified import declaration" under Article 241(2) of the Customs Act and public notice on the clearance of travelers' personal effects (No. 2008- 34 of the Customs Service's notice on October 20, 209, No. 2009-59 of the Customs Service's notice on August 20, 201, No. 2010-71 of the Customs Act and No. 3 of the Enforcement Decree of the Foreign Trade Act for the purpose of carrying travelers' personal effects, etc. (No. 3 of the Customs Clearance Regulations)-Public notice on February 11, 2010>

In addition, Article 1-4, Paragraph 2 of the Personal effects of the Korean Customs Service clearly provides that "goods which the customs collector deems appropriate to normally carry a traveler's personal effects", that is, goods for personal use of a traveler's personal use, goods recognized as appropriate for futures, goods for personal use or prices, travelers' personal belongings such as clothes, cosmetics, etc. which are currently being used or recognized as being used in the course of their travel, personal identification goods such as clothing, cosmetics, etc. which the customs collector considers as necessary for the occupation of a non-resident, and other goods which meet the standards designated by the customs collector in consideration of the consumer's status, occupation, age, etc."

Therefore, the import of goods by the owner of goods without filing an import declaration while importing them from many persons and having them clear the customs search stand in quantity, which is the personal effects of each person, constitutes a crime of free import declaration under Article 269(2)1 of the Customs Act (Supreme Court Decision 2004Do3870 Decided January 11, 2007). In the case of the import of commercial goods, the customs clearance cannot be conducted through a simplified import declaration by submitting a consumer's personal effects declaration method. Thus, even if the customs clearance was conducted through a simplified import declaration by submitting a consumer's personal effects declaration method, it cannot be deemed as lawful customs clearance, and such import constitutes a crime of free import declaration under Article 269(2)1 of the Customs Act (Supreme Court Decision 2004Do8786 Decided March 25, 2005).

Comprehensively taking account of the evidence duly admitted and examined by the court below, the defendant 1 was in the middle of 00

Upon receipt of a request for transportation of goods in the country, 00 shall have the said goods transported to their own warehouse in China, and then divided them into two and one of them and completed customs clearance procedures by having them simplified import declarations using personal effects of travelers. ② The Defendant also conducted import procedures through regular import declarations in a case where it is not recognized as travelers’ personal effects from the inspection of personal effects of the said goods; ③ the Defendant anticipated that certain goods are not recognized as travelers’ personal effects, and demanded 00 passengers to submit invoices, etc. necessary for the regular import procedures to transport goods from 00. Thus, it is reasonable to deem that the Defendant distributed the said goods to the Republic of Korea to disguisedly import declaration to disguised the said goods, and the Defendant’s practice asserted by the Defendant merely misleads the customs office to import foreign goods, and thus, it is difficult to deem that his act was not recognized as a crime.

Therefore, we cannot accept the defendant's assertion of mistake of facts.

B. As to the assertion on unfair sentencing, the Defendant was sentenced three times to a fine on the same kind of crime, and the period of the instant crime is a maximum of one year and nine months, and the total cost of imported goods is a maximum of KRW 49,897,486, including the character and conduct of the Defendant, the motive and circumstance of the instant crime, and the circumstances after the instant crime, etc., taking into account all the sentencing conditions as indicated in the records and arguments, such as the character and conduct of the Defendant, the motive and circumstance of the instant

3. Conclusion

Therefore, the defendant's appeal is without merit and is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act (Article 282 (2) and (3) of the Customs Act). Since goods imported in violation of Article 269 (2) of the Customs Act are subject to necessary confiscation and collection, the court below erred in failing to additionally collect an amount equivalent to the domestic wholesale price at the time of offense of goods which cannot be confiscated, but in this case, in accordance with the principle of prohibition of disadvantageous alteration under Article 368 of the Criminal Procedure Act, the court below's judgment cannot additionally impose an additional collection at the trial. Accordingly, the above illegality of the court below is not a case affecting the judgment, and therefore, the judgment of the court below is not reversed on this ground).

Judges Han-Ann-si

Judge Park Jae-hoon

Judges Lee Lee-hee