2015No714 Violation of the Customs Act

A

Defendant

Kim Woo (Court of First Instance) and Kim Jong-hee (Court of Second Instance)

Law Firm B

Attorney in charge C

Daegu District Court Decision 2012Gohap3005 Decided February 11, 2015

January 19, 2017

The lower judgment is reversed. The Defendant is not guilty.

1. Summary of the grounds for appeal (the factual error, misunderstanding of legal principles, and unreasonable sentencing)

A) misunderstanding of facts and misapprehension of legal principles

(1) Considering the current status of the operation of the shopping mall operated by the Defendant, the import and sales of goods, etc., the instant goods are not imported by the Defendant, but imported by consumers who are customers of the shopping mall as their owners, and thus, the Defendant cannot be deemed to have been unlawfully exempted from customs duties (hereinafter referred to as “the first fact-finding person and the assertion of misapprehension of the legal doctrine”).

(2) Even if the Defendant was unlawfully exempted from customs duties on a different premise, the amount is less than the amount indicated in the facts charged in the instant case (hereinafter referred to as "the second fact-finding person and the assertion of misapprehension of the legal doctrine").

B) Unreasonable sentencing

The sentence of the lower court (the fine of KRW 24,282,00) is too unreasonable.

2. Judgment on the first factual errors and misapprehension of legal principles by the defendant

A. The facts charged in this case

The defendant is a person who operates the business of selling clothes, etc. by opening an electronic commerce enterprise (E1) in the name of the wife D.

When anyone intends to import goods from overseas, he/she shall report the name, standard, quantity, price, etc. of the relevant goods to the head of a customs office, and shall not perform an act of failing to pay customs duties with the application of small tax exemption by improper means for sale.

The defendant, while staying in D and the United Kingdom as a student, opened an Internet shopping mall "E", and the defendant posted goods information and sales price for goods that can be sold on the spot and puts them in the electronic commerce transaction business by purchasing them on the spot and distributing and selling them at the order of a domestic resident who had access to the said shopping mall.

The Defendant knows that customs duties are not imposed on imported goods if the imported goods are personal goods and the total customs value of which is less than 150,000 won, pursuant to Article 94 of the Customs Act. While the Defendant purchased and sold goods ordered by domestic buyers at the English site, the Defendant had expressed individual buyers as taxpayer on the import declaration form in order to disguised them to purchase them directly from foreign buyers for their own use, and had them enter them in a simplified import declaration form. On August 14, 2009, the Defendant: (a) purchased at the UK one point in the amount of USD 50,00 ($ 61,7466) ordered by the domestic buyer F using the Internet shopping mall, and then delivered them to Korea through the modern home delivery point, and received the reduction or exemption of customs duties on the said goods by requesting the taxpayer to enter him as F in the import declaration form in a disguised manner under Article 94 of the Customs Act; and (b) obtained the reduction or exemption of customs duties on the said goods.

In addition, the Defendant imported 15,390 points (won 1,147,40,40,488) such as the U.K. clothes, shoes, and bags, which are subject to customs duties over 12,141 times until March 7, 2012, as indicated in attached Table 2, and sold them to a resident in Korea, but the customs office reported as if the domestic resident were imported as personal goods, and received the reduction of customs duties of 134,573,980 won to be imposed on the relevant goods by unlawful means.

B. Judgment of the court below

The lower court determined that the Defendant was an actual owner of each of the goods indicated in the facts charged of this case and convicted of the facts charged of this case on the premise of the reasoning of the judgment below from Nos. 4, 12 to 11.3.

C. Judgment of the court below

(1) Change of legal principles and public notice

(A) In a case where a domestic consumer directly orders goods to a foreign seller and delivers them under the name of the domestic consumer and undergo import clearance procedures, the actual domestic consumer who imports the goods is not a domestic consumer, but a domestic consumer, barring special circumstances, even though the domestic consumer engaged in some auxiliary activities related to convenience of domestic consumers or promotion of sales and return of goods to a foreign seller. Even if the domestic consumer directly imports goods to a foreign seller, the actual domestic consumer who actually imports the goods may be deemed a domestic consumer if the domestic consumer directly imports the goods to a foreign seller and sells them again to the domestic consumer. However, in order to fall under such a case, the actual domestic consumer may be deemed a domestic consumer. However, the fact that the two-stage transaction exists between the domestic seller and the domestic seller and the domestic consumer. Even if the domestic business operator actually controls and manages the income or profits while controlling the domestic seller, it cannot be readily concluded that there was separate domestic transaction between the domestic consumer and the domestic consumer. Thus, if such circumstance is sufficiently proven, the actual domestic consumer should still be deemed a domestic consumer (see, e.g., Supreme Court Decision 2017Du214.

(B) Meanwhile, Article 1-3 of the former Notice on Special Customs Clearance Procedures for E-Commerces (Amended by Presidential Decree No. 2014-77, Jun. 16, 2014; Presidential Decree No. 2014; Presidential Decree No. 20140, Jun. 16, 2014; Presidential Decree No. 201487, Feb. 16, 2014; Presidential Decree No. 201357, Feb. 16, 2014; Presidential Decree No. 20100, Feb. 26, 2017; Presidential Decree No. 20130, Feb. 24, 2017; Presidential Decree No. 20200, Feb. 24, 2017; Presidential Decree No. 201000, Feb. 6, 2017; Presidential Decree No. 20200, Feb. 24, 2017>

(2) We examine whether the actual owner who imported the instant goods is a domestic business operator or a domestic consumer in accordance with the aforementioned legal doctrine.

In light of the following circumstances acknowledged by the evidence duly adopted and examined at the court below and the court below, i.e., (a) transactions as indicated in the facts charged of this case: (b) the appearance of each transaction, such as direct import by domestic consumers (delivery is made in the name of domestic consumer; (b) the Defendant’s shopping mall was established only for domestic consumers, and return and refund was made in Korea; (c) the Defendant newly set the sales price of the shopping mall; (c) the transaction between the Defendant and the consumer was actually conducted; (c) the new sales price was set based on the price set by the overseas seller; and (c) the Defendant appears to be merely a partial auxiliary act in relation to the convenience of domestic consumers. In this case, it is reasonable to deem that the actual owner of the imported goods was a domestic consumer, not the Defendant, and it cannot be said that the Defendant reported the import of each of the above goods to customs house as a domestic resident’s own goods.

Therefore, Defendant 1's misunderstanding of facts and misapprehension of legal principles are justified.3)

3. Conclusion

Thus, since the defendant's appeal is well-grounded, the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and it is again decided as follows.

For the reasons for the decision to be written, the facts charged in this case are the same as the facts charged in Section 2-A (A) of the above Article, which constitutes a case that does not constitute a crime, and thus, the defendant is acquitted under the former part of Article 325 of the Criminal Procedure Act.

The presiding judge, judges and motion pictures

Judges Juk-ho

Judge Lee Jae-ho

1) Since the 'AC' of the indictment appears to be a clerical error, it shall be corrected to 'E'; hereinafter the same shall apply.

2) The indictment was accompanied by the attached list of crimes in writing, but the judgment below is accompanied by the CD at the end of the judgment, and the above CD is accompanied by the list of crimes.

A. However, the prosecutor may open or output a list of offenses, which is part of the facts charged, through a computer program.

The storage media itself in which the document in the electronic form is stored without submitting it in paper form after being prepared in a self-written form.

In the case of submission by a written indictment, only the part as stated in the written indictment can be deemed to have been instituted.

In addition, the part of documents stored in the above storage medium cannot be said to have been prosecuted (Supreme Court Decision 201Da1548, Dec. 15, 2016).

Considering the en banc Decision 201553682, etc., it is reasonable to specify the facts charged in writing attached to the indictment, as above, given that the document attached to the indictment is appropriate.

The determination shall be determined.

3) As seen earlier, the Defendant asserts that the second fact-finding person and the misapprehension of the legal doctrine are not the consumers (see, e.g., Supreme Court Decision 201

Although there is a argument that the taxation standard should be determined differently, each object listed in the separate sheet of crime as seen earlier by the defendant.

Unless the actual owner of the product is not the actual owner of the product, the above argument shall not be separately determined. In addition, the defendant shall hold the second trial on August 18, 2016.

Even if the defendant is deemed to be the owner of each item specified in the separate list of crimes when it comes to the date, the list of crimes is not related to the defendant.

The defendant asserts that there are considerable errors in its contents, such as goods included, but as seen earlier, the date of the annexed crime by the defendant.

As long as it cannot be seen as the owner of each product listed in the sight list, the defendant's above assertion shall not be judged separately.