(a) An offense against customs clearance of other brought-in goods not identical to the licensed goods entered in the export declaration;

(b) Whether a person constitutes an offense of non-licensed import, where he/she carries a seed, which is an item subject to import restrictions, and passes through customs with a license stating the seed in the import declaration;

C. The meaning of cost of goods under Article 6(4) of the Aggravated Punishment Act

A. [Majority Opinion] A license for export and import under Article 137(1) of the Customs Act is a disposition having the nature of a license for import and export of goods brought into a bonded area by the customs collector to release the general prohibition of export and import of goods brought into the bonded area from the customs collector, and the license is not effective for goods entered in the export and import declaration or goods with the identity of such a person. Thus, if the import and export declaration contains false entries in the import declaration and clearance of the said imported goods with the said declaration, it constitutes a non-licensed export and import declaration.

[Minor Opinion] In light of the purport of the provisions of Articles 137 and 140 through 142 of the Customs Act, the subject of export and import license is the carry-in goods which have undergone an examination, and cannot be deemed to be the goods which have been entered in the export and import declaration. Thus, in a case where the export and import declaration entered falsely the items different from those of the carried-in goods in the import declaration and made a customs clearance with the import declaration in accordance with the said declaration, the above license is a defective disposal subject, but it is nothing more than the disposal of the said carried-in goods, so it is not clear that the above license is a defective disposal subject to the above declaration, but it is not possible to ask for the liability for the crime of false declaration for the above act of export and import, but it shall not be considered as a crime of non-licensed export

[Supplementary Opinion to the Majority Opinion] A license for import is granted to the goods, but the goods themselves are not subject to inspection, but subject to inspection by the declaration, and thus, the goods are the goods indicated on the declaration, including whether they are identical to the goods indicated on the declaration, and thus the import is granted by examining whether they are permitted to import, packing details, place of production, quantity, quality, etc., and the specific contents of the goods are determined by the import declaration. Accordingly, if the import is granted accordingly, the license is granted for the goods immediately, but if the goods are not in accord with the goods stated on the import declaration, the license is granted to them, and if they are cleared, the effect of the license is not limited to the goods, it constitutes an

B. The subject matter of export and import license under Article 137(1) of the Customs Act is the same kind of article as the subject matter stated in the export and import declaration or the subject matter recognized as identical thereto, and the subject matter of export and import license is the same as the subject matter, and the subject matter of export and import license is the same as the subject matter, and the subject matter of export and import license is also the same as the subject matter, and it is reasonable to view that there is no identity that the requirements for granting export and import license are different. Thus, if the subject matter of import license was carried in and cleared seeds 2,00 liters, which are the subject matter subject to import restriction, and then the subject matter of import license is reported as the subject matter and cleared seeds, which are the subject matter, and if the subject matter of import license is cleared with the import license and cleared seeds, which are the subject matter of import restriction, belong to the same b

(c)The cost of goods stipulated in Article 6(4) of the Act on the Aggravated Punishment, etc. of Specific Crimes refers to the arrival price at the place of importation in the case of imports (so called CIF price) and the internal wholesale price or market price at which taxes, other penalty surcharges, costs and profits are added, including customs duties, and other penalty surcharges,

(b)Articles 137, 181 and 188 of the Customs Act; Article 6 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 181 of the Customs Act;

Defendant

Defendant

Attorney Lee Young-soo

Daegu High Court Decision 82No246 delivered on June 7, 1983

The guilty portion of the judgment of the court below is reversed, and that part of the case is remanded to the Daegu High Court.

1. We examine the Defendant’s defense counsel’s ground of appeal No. 1

(1) A license for export, import or return under Article 137(1) of the Customs Act (hereinafter referred to as the “import license”) is a disposition in which the customs collector takes the nature of a license to release the general prohibition of export and import of goods brought into a bonded area from an export declaration to an export declaration, and the license is not effective for goods entered in the export declaration or goods whose identity is recognized and which are not identical.

Therefore, if an export-import trader entered false matters in a report on export and import of other goods which are not identical to those actually brought into a bonded area and cleared the above-in goods with the license as declared, the effect of the export-import license does not extend to the carry-in goods which are not identical to those stated in the export-import declaration, and thus, it constitutes a crime of non-licensed export and import as stipulated in Article 18

The Supreme Court Decision 73Do385 delivered on May 22, 1973 decided to abolish it.

In addition, it is reasonable to view that the requirements for granting export/import licenses are not identical to those for the same kind of goods as the goods entered in the export/import declaration as above, and the requirements for granting export/import licenses are not identical.

(2) According to the facts duly established by the court below in this case, the defendant carried 2,00 literss from Japan into the Kim Sea Port, which is an item subject to import restrictions, and then cleared by obtaining an import license for the seed from the Minister of Kim Sea Customs as if he imported 2,00 literss, an imported free item, from the Minister of Kim Sea Customs as if he had imported 2,00 literss, which is an import-free item. Thus, even if the seeds and the seed are the seeds belonging to the same kinds of non-identical and non-identical, one is import restrictions, and the other is the imported free item, and it is difficult to view that the requirements for granting an import license are different from the imported free item, and therefore, the court below's decision that the act of importing the seeds constitutes a crime of non-licensed import under Article 181 of the Customs Act is justified and there is no ground to dispute the judgment of the court below against the contrary Opinion.

2. We examine the grounds of appeal 2.

(1) According to the reasoning of the judgment below, the court below acknowledged that the defendant imported 41,561,536 won at the market price of 2,00 liters without obtaining a license as stated in its reasoning. The court below, applying Article 6(4)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 181 of the Customs Act, and additionally imposed a fine of 83,123,072 won equivalent to twice the above market price under Article 6(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (the judgment below stated that Article 5 is a clerical error but it is apparent that it is a clerical error) on the ground that the defendant was punished by a penalty of 41,561,536 won at the above market price under Article 198(1) of the Customs Act from the defendant.

(2) However, according to Article 6(4)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, a person who commits a crime under Article 181 of the Customs Act shall be punished by imprisonment with prison labor for life or for not less than five years, if the cost of the goods is more than ten million won but less than five million won. According to Article 6(4) of the Act on the Aggravated Punishment, etc. of Specific Crimes, a fine equivalent to twice the cost of the goods is concurrently imposed in the case of the preceding paragraph. The above "goods cost" refers to the arrival price at the place of import in the case of the imported goods, and it does not refer to the domestic wholesale price or market price at which taxes, other penalty surcharges, costs, and profits are added, and thus, the fine amount cannot be calculated on the basis of the domestic wholesale price or the cost of the goods.

However, according to the appraisal statement of Kim Sung-tae, the arrival price of the seeds of this case 2,00 liter 28,178,722 won, and the market price of this case 41,561,536 won recognized by the court below. In comparison with the contents of the written accusation by the head of Kimpo in investigation records (in particular, the part of opinion on the penalty), the arrival price is the cost of the imported goods, and the domestic wholesale price is the cost of the imported goods, which is the additional collection amount under Article 198 (1) of the Customs Act, is considered to mean the domestic wholesale price of the above market price, and there is no other material to recognize that the above market price is the cost of the imported goods.

Ultimately, the judgment of the court below regarding the market price, which is the domestic wholesale price, as the cost of the goods, and calculated the fine based on the price is erroneous in misunderstanding the concept of the cost of the goods stipulated in the above law, or misunderstanding the evidence judgment as to the cost of the goods, and such unlawful calculation of the cost of the goods has influenced the judgment because it is related not only to the fine, but also to the imprisonment with labor, which affected the judgment.

3. Therefore, the guilty portion of the judgment of the court below is reversed, and that part of the case is remanded to the Daegu High Court for further proceedings. It is so decided as per Disposition by the assent of all participating judges, except for the dissenting opinions as follows, as to the establishment of the crime of non-licensed import.

4. Dissenting Opinion by the Supreme Court Judge Lee Jong-soo and Lee Chang-chul on the establishment of the crime of non-licensed import

(1) In light of the purport of each provision of Articles 137 and 140 through 142 of the Customs Act, the head of a customs office grants a license after examining the requirements for granting a license through an inspection of goods brought into a bonded area by an export-import reporter upon receipt of an export-import declaration. Thus, the subject of the license is only the goods themselves brought into the bonded area subject to such examination and is merely the goods written in the form of an export-import declaration.

Therefore, as long as the customs collector recognizes the same goods as the goods entered in the export declaration and grants a license as those that meet the requirements for granting a license, even if the goods entered are different from the goods entered in the declaration, it can not be said that there is no license for the goods entered in the declaration and the validity of the license is a defective disposition of error in the subject matter of the license.

The majority opinion holds that only the goods entered in the export declaration or the goods similar thereto are not identical to those of the export declaration shall not have the effect of a license. However, if the purport of the license is deemed to be the goods itself and actually carried in as stated in the export declaration, the conformity between the goods entered in the export declaration and the goods brought in cannot be the requirement for granting a license, and thus, it cannot be justified to agree with the unjust conclusion that the license shall not be denied even in cases where the goods brought in differs from the goods entered in the export declaration.

If the purport of the Majority Opinion is that an export and import license is granted for an article that has been actually carried in, but the effect of the export and import license is not limited to the article that has been entered in the export and import declaration, then the effect of the export and import license is not limited to the article that has been entered in the export and import declaration, and the license is deemed to be a disposition lacking the scope of the license. However, we cannot agree with the Majority Opinion in this regard, even if the article is different from the declaration declaration item, so long as the requirements for granting a license are examined for the article that has been actually carried in the bonded area by the customs collector, and the article is identical to the article that has been entered in the declaration, and then the license is granted for the same article that has been recognized as satisfying the requirements for granting a license.

(2) Ultimately, in the event that a person who filed an export declaration entered false statements in a declaration on export and import of goods different from those carried-in goods and entered customs clearance with the said declaration, the above licence is a defective disposition as to the subject matter, but it is nothing more than the disposal of the carried-in goods. As such, it shall be held liable for the crime of false declaration as stipulated in Article 188 of the Customs Act against the above act of export and import, but it shall not be subject to the crime of non-licensed export and import as stipulated in Article 181 of the same Act.

However, in a case where the above error in the subject of a license is significant and apparent, the license is void as a matter of course and has no effect from the beginning, and in such a case, it is deemed that the establishment of a crime of export and import without a license can be

Therefore, the court below should have judged whether the defect in the import licensing disposition, which misleads the defendant as to the seeds brought in by the case of this case, can be deemed invalid because it is significant and clear that the defect in the import licensing disposition is the same as the seeds stated in the import declaration, and judged otherwise the establishment of the crime of non-exclusive import. However, the court below determined that the crime of non-exclusive import is established solely on the ground that the seeds and sculls are not identical to the same, and therefore, the court below should reverse the judgment of the court below.

(3) Since the purpose of the Customs Act is to contribute to the development of the national economy and secure import and export goods by properly imposing and collecting customs duties and customs clearance, the Customs Act provisions should be interpreted and applied to meet the above purpose of the Act. However, since the penal provisions of the Customs Act fall under penal provisions, the penal provisions of the Customs Act should be interpreted strictly and the excessive expansion and interpretation beyond the meaning of the text of the Criminal Act cannot be avoided.

In reality, filing a false declaration on the export and import declaration of goods and goods different from those brought in cannot be a legal act that has been criticized, but there is a separate crime of false declaration in the penal provision against it. If a license is granted even though the difference between the goods brought in and the goods entered in the declaration is obvious, if the defect is significant and obvious, the license becomes invalid, and in such a case, it can be applied to the non-licensed export and import crime. Therefore, the strict interpretation of the ceiling of the Customs Act is not neglected on the ground that it is concerned with the minority opinion.

Rather, according to the interpretation of the majority opinion, it is deemed that an export-import reporter obtained an export-import license and cannot be deemed as null and void, so this would not be an extended interpretation beyond the meaning of the sexual provision, in order to punish the person involved in a false report as a crime of unlicensed export-import, and thus, it is difficult to agree with the majority opinion.

(4) Finally, I refer to the supplementary opinion.

The concurring opinion argues that if a license for import is granted to the goods that are actually offered to an inspection regardless of the entry in the import declaration form, if the import declaration is granted to the goods itself, the inspection or the license is based on the premise that there is no urban meaning. If minority opinion actually examines whether to grant a license to the goods in the bonded area and then grants a license by recognizing that the customs collector had the same goods as the declaration, the license is based on the same conditions as the declaration, and ultimately, it is inconsistent with the majority opinion in that it examines whether to grant a license to

However, the issue in this case is whether the export/import license is granted in a case where the export/import license is granted to goods different from the description of the export/import declaration, and it is not a question whether the license is granted regardless of the description of the declaration. Since the export/import license granted in the case of export/import declaration, it is not a theoretical theory that the requirements for granting the license are to be determined based on the description of the declaration, and there is no theory that the license is granted in the case of export/import declaration, since the import/import license is granted after examining whether the goods to be exported or imported meet the requirements for the entry of the declaration. However, the subject of the license granted after the examination are not the goods itself of the declaration.

As can be seen, since the subject matter of a license and the requirements for granting a license for the goods brought in are not entirely conflicting with those for which a license is granted, and the former is related to the subject matter for which a license is granted, and the latter is related to the requirements for granting a license, the concurrence with the Majority Opinion may not be regarded as either misunderstanding the purport of a minority opinion, or misunderstanding the concept of the subject matter for granting a license and requirements for granting a license. In addition, the concurrence with the Majority Opinion argues that if the establishment of a crime depends on whether a mistake is made in the customs office regardless of the act of the actor, and whether the defect caused by the mistake is significant and apparent, it is contrary to the basic principles of general penal law, but it is not a theory that disregards that the error of the subject matter of a license by the customs office is due to the act of the reporter's false report. In addition, whether the defect inherent in a license disposition depends mainly on the degree of illegality of the above false report and method, it is not necessary to conclude that it is not determined regardless of the act.

5. Opinion concurring with the Majority Opinion by a judge of the Supreme Court;

If the provisions of Articles 137 through 141 of the Customs Act are gathered, a license for import shall be conducted to examine the goods entered in the import declaration in accordance with the name of the goods and to this effect. Thus, the inspection of the goods shall only be conducted to determine whether they correspond to the goods stored in the import declaration or to the goods stored in the actual import declaration place, and the above provisions shall not be interpreted as a license for import, regardless of whether the goods entered in the import declaration are the same as the goods for which the import declaration is to be actually imported.

The minority opinion seems to be the basis of the theory that the import license is a license for large goods, but it is not a theory about the license for large goods, but a license for large goods is not a license for the import of the goods to a certain specific person, but a license for the import of the goods to a certain specific person cannot be granted any significance. Since the specific contents of the goods are decided by the import report immediately, if the import license is granted for the goods, the license shall not immediately be granted for the goods, but if the goods are inconsistent with the goods stated in the import report, the effect of the license shall not be extended to the goods. If the import license for the goods delivered to the inspection in reality regardless of the entry in the import report, if the import license is granted for the goods itself, regardless of the fact that the import license is stated in the import report, it cannot be said that the inspection or license has no meaning, and if the goods intended to be imported are different from the goods stated in the import report by fraudulent means, it shall not be deemed identical or identical to the goods.

According to the majority opinions in two different cases, it would be unfair conclusion that a license cannot be denied on the ground of the fact that the imported goods are different from those stated in the report, and that the license does not exist, but the license is also a disposition lacking. However, as seen above, the import license cannot be deemed as a disposition lacking the license for the reason that the imported goods are the substitute goods license. However, the import license is clear, but it is not the only object of inspection on the ground that the imported goods are the goods indicated in the report, but the goods are the same as the goods indicated in the report, and it is also a license for the imported goods after examining the import license (or the import recommendation by the competent Minister), packing description, production place, quantity, quality, etc. of the goods stated in the report or attached to the report. Thus, even if the imported goods are different from the goods stated in the report, the conclusion that the license cannot be denied on the ground of such lack of the license cannot be said to have been made.

Although the minority opinion seems to see the majority opinion that the object of import license is whether or not the goods entered in the import declaration are the goods actually brought in or actually brought in, and if it is clearly divided, the minority opinion's opinion will examine the requirements for granting the license for the goods actually brought in to the bonded area, and as long as the goods in question are the same as those entered in the import declaration and are recognized as satisfying the requirements for granting the license, the theory that the goods in question are different from the goods entered in the import declaration, even though it is a defective disposition that is the object of the license, it would ultimately be inconsistent with the majority opinion in examining whether or not to grant the license for the goods in question according to the import declaration.

In the event that an import declaration entered false matters in a declaration on importation of goods different from those of the goods brought in and made a declaration, and the import declaration was made with the import declaration as stated in the declaration, it is a defective disposition subject to the above license, but there is no difference in the disposal of the goods brought in, so if there is no error in the above declaration, the crime of false declaration is established, and if there is a serious and obvious defect in such mistake, it is reasonable to hear the opinion that the license is established as a crime of non-licensed import in this case. However, if the establishment of the crime depends on whether the customs collector is erroneous regardless of the actor's act, and if there is a significant and apparent defect caused by the mistake, it is contrary to the basic principles of general penal law and the theory that the effect of the license does not extend to the goods if the goods brought in are inconsistent with the entry in the declaration on import.In addition, in practice, it is not necessary to interpret the penal law because it is difficult to deal with it, or if it exceeds the sexual law and regulations.

Ultimately, the effect of export and import licenses is limited to the goods identical or similar to the goods described in the relevant import declaration, and the goods that are not identical or similar to the goods described in the relevant import declaration are not identical with the goods mentioned in the relevant import declaration, and in such a case, the crime of non-import is established. However, on the theoretical basis of the theoretical basis, the act of importing non-import-free goods without import licenses is not different from the act of smuggling in order to punish false reporters (the act of importing non-import-free goods without import licenses or recommendations as a fraudulent method making false entries in the relevant import declaration).

Justices Park So-young (Presiding Justice) Lee So-young (Presiding Justice) Lee So-young, Kim So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young