Where an overseas Korean who is a non-resident intends to carry and export domestic property or means of foreign payment exceeding 10,00 U.S. dollars, whether he/she is obligated to report to the head of the competent customs office (affirmative in principle) and where an exceptional report is not required

Article 17 of the Foreign Exchange Transactions Act, Article 31(2) of the Enforcement Decree of the Foreign Exchange Transactions Act, and Article 4-7(1), (2), and (4), Article 5-11(1)2(a) and (2), Article 6-2(1)5(a), and Article 6-3(1) of the Foreign Exchange Transactions Act (amended by Notice No. 1999-9 of the Ministry of Finance and Economy No. 199, Mar. 31, 199; amended by the Ministry of Strategy and Finance No. 2010-17, Aug. 20, 2010; hereinafter the same shall apply), where an overseas Korean who is a non-resident intends to carry and export domestic property or means of foreign payment exceeding 10,00 U.S. dollars, he/she is obligated to report to the head of the competent customs office, in principle, if he/she intends to verify the issuance and confirmation of foreign exchange reports by the head of the designated bank in accordance with the procedures prescribed by Article 511 of the Foreign Exchange Transactions Regulations.

Articles 17 and 29(1)7 of the Foreign Exchange Transactions Act; Article 31(2) of the Enforcement Decree of the Foreign Exchange Transactions Act; Article 4-7(1), (2), and (4), Article 5-11(1)2(a), and (2), Article 6-2(1)5(a), and Article 6-3(1) of the Foreign Exchange Transactions Regulations (Notice of the Ministry of Strategy and Finance No. 2010-17, Aug. 20, 2010);

Defendant

Prosecutor

Attorney Don-won

Incheon District Court Decision 2011No2064 Decided September 9, 2011

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

The grounds of appeal are examined.

1. Article 17 of the Foreign Exchange Transactions Act provides that "the Minister of Strategy and Finance may require a resident or nonresident who intends to export or import means of payment or securities to file a report, as prescribed by Presidential Decree when he/she exports or imports such means of payment or securities." Article 31 (2) of the Enforcement Decree of the Foreign Exchange Transactions Act provides that "the Minister of Strategy and Finance shall determine and publicly notify the scope of and standards for the export or import of means of payment, etc. and other necessary matters to be reported if he/she has to file a report on the export or import of such means of payment, etc." Article 199-9 of the Foreign Exchange Transactions Act enacted upon delegation of the Enforcement Decree of the Foreign Exchange Transactions Act (amended by Act No. 1999-9 of March 31, 199; hereinafter the same shall apply). Article 6-3 (1) of the Foreign Exchange Transactions Act provides that "the head of the competent customs office shall not require a report to be filed in accordance with Article 6-15 of the Foreign Exchange Transactions Act, except where a non-resident or a nonresident is obligated to report."

Furthermore, Article 5-11(1) of the Regulations on Foreign Exchange Transactions providing for the procedures for the payment not via a foreign exchange bank shall not require a report if an overseas Korean intends to pay it by any of the following methods." Article 5-11(1) of the Regulations provides that "Where an overseas Korean directly pays overseas travel expenses, emigration expenses, and domestic property: Provided, That where an overseas Korean carries and exports foreign means of payment exceeding 10,000 U.S. dollars, only one of the following cases shall be applicable." (Ga) provides for "Confirmation by the head of a designated foreign exchange transaction bank" (Ga) and provides for "where an overseas Korean national carries and exports foreign means of payment." In this case, the head of a foreign exchange bank, upon receipt of a request for confirmation under paragraph (1), shall confirm the acquisition of the means of payment, and issue and issue a certificate of foreign exchange report (foreign exchange report) in attached Form 6-1 to the relevant resident. Meanwhile, Article 47-1(2) of the Regulations on Foreign Exchange Transactions stipulating the procedures for domestic foreign exchange transactions of an overseas Korean to the effect.

Ultimately, in full view of the language and purport of the above statutory provisions, in cases where overseas Koreans, who are non-residents, intend to carry and export domestic property or means of foreign payment exceeding 10,00 U.S. dollars, they have the duty to report to the head of the competent customs office in principle. However, in cases where a certificate of foreign exchange declaration (it includes confirmation by the head of the designated foreign exchange bank) is issued and issued pursuant to the procedures prescribed in Article 5-11, such report shall not be required

2. According to the reasoning of the lower judgment and the evidence duly admitted and maintained by the lower court, the Defendant: (a) was a non-resident who is a citizen of the Republic of Korea and was an overseas Korean who acquired a permanent residence certificate in Japan; (b) deposited KRW 20,355,000 from his own bank account in daily currency (US$ 18,048) on November 11, 201; (c) the Defendant prepared and submitted documents, such as a written application for the designation of a foreign exchange bank; (d) the written application for the removal of overseas Koreans; (e) the Nonindicted Party, a bank manager, did not issue and issue a certificate of foreign exchange (verification) under Article 5-11(2) of the Foreign Exchange Transaction Regulations to the Defendant; and (e) the Defendant left the Republic of Korea through an aviation from Incheon public port around 08:30 on November 16, 2010 and did not file a report to the customs office, but did not discover it in the process of checking the airport.

In light of the above facts in light of the legal principles as seen earlier, the defendant only prepared and submitted an application for designating a foreign exchange bank and an application for taking property of overseas Koreans, which cannot be deemed to have been confirmed by the head of the designated foreign exchange bank under Article 5-11 of the Foreign Exchange Transaction Regulations. Thus, the defendant still has a duty to report to the head of the competent customs office on the fact of carrying/export or taking out of the above Japanese currency without fulfilling his/her duty to report, and as long as the defendant is found to have been in possession of and depart from the above Japanese currency without fulfilling his/her duty to report, he/she shall bear the responsibility for the attempted carrying/export of means of payment under Article 29(2) and

Nevertheless, the court below found the defendant not guilty on the ground that the defendant designated a foreign exchange bank and submitted to the bank head an application for removal of overseas Koreans with the fact that the defendant completed all the procedures required by law, such as obtaining confirmation from the head of the foreign exchange bank and obtaining confirmation from the head of the foreign exchange bank. The court below erred by misapprehending the legal principles on the delivery and export of overseas Koreans and the procedures for removal of domestic assets, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

3. 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 Yang Chang-soo (Presiding Justice)