Defendant 1 and four others

Defendants

00,000 p.m., 100 p.m.

Attorney Lee Jae-hoon

Jeonju District Court Decision 201 High Court Decision 872 Decided October 9, 2012

1. The judgment below is reversed.

2. Defendant 1, Defendant 2, and Defendant 4 Co., Ltd. (Co-defendant 4) shall be punished by respective fines of KRW 14,250,00,00, Defendant 3, and Defendant 5 (Counter-board: Defendant 4) by respective fines of KRW 9,50,00,00.

3. In a case where Defendants 1, 2, and 3 fail to pay each of the above fines, the above Defendants shall be confined in a workhouse for the period calculated by converting 50,000 won per day into one day.

4. To order the Defendants to pay an amount equivalent to the above fine.

5. Of the facts charged in the instant case, the Defendants’ violation of the Customs Act No. 1 listed in the separate list of crimes against the Defendants is acquitted, respectively.

6. The summary of the part not guilty in the judgment on Defendant 5 Corporation (the legal entity of Defendant 4) shall be published;

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

1) Violation of the Customs Act listed in [Attachment 1] No. 1 of the crime sight table

Defendants did not falsely report the purchase price or freight of the mouth on March 30, 2009.

2) Violation of the Customs Act set forth in [Attachment 2] Nos. 2 through 96 of the list of offenses

A) Defendants’ assertion

(1) The “price,” which is the constituent element of a crime of false declaration under Articles 276(1)4 and 241(1) of the former Customs Act (wholly amended by Act No. 9910, Jan. 1, 2010; hereinafter “former Customs Act”), refers only to the purchase price of the pertinent goods, and thus, the freight reported by the Defendants does not include the false declaration.

(2) Defendants did not have the intent to commit a false report.

(3) Defendants’ act constitutes an error in law under Article 16 of the Criminal Act and cannot be punished.

B) Defendant 2’s assertion

Defendant 2 did not take part in the crime of false reporting by Defendant 1 and Defendant 3.

C) Defendant 4 Co., Ltd. (Seoul High Court Co., Ltd. 4) and Defendant 5 Co., Ltd.’s assertion

Defendants were not negligent in giving due attention and supervision to prevent crimes of false reporting by Defendants 1 and 3, who are their employees.

B. Unreasonable sentencing

The punishment sentenced by the court below against the defendants (Defendant 1, Defendant 2, and Defendant 4 Co. 4: each fine of 14,400,000 won, Defendant 3, and Defendant 5 Corporation (large-sized Corporation: Defendant 4): each fine of 9,60,000 won: the fine of 9,60,000 won is too unreasonable.

2. Judgment on misconception of facts or misapprehension of legal principles

A. Determination as to the violation of the Customs Act listed in [Attachment 1] List of Crimes

1) The part concerning the purchase price of the raw lecture

(3) It is insufficient to acknowledge that the Defendants reported 21 ton of the actual purchase price per ton of 244 on March 30, 209 only with the accusation written by the head of the military customs office and the integrated investigation report prepared by the head of the military customs office. In light of the above fact that the Defendants were found to have reported 30 days of purchase or 44 days of purchase on March 30, 2009, there is no sufficient evidence to acknowledge otherwise. Rather, the Defendants were 1 to submit an import declaration stating 221 days of purchase price when they reported 4 days of purchase on March 30, 209, which was 244 days of purchase or 40 days of purchase on the same day, and that there was no possibility that the Defendants were 9 days of purchase or 4 days of import declaration on the same day of the above fact that there was an error in the above purchase price. The revised import declaration was accompanied by the invoice 244 days of purchase price and the invoice 16 days of import declaration on the same date.

Therefore, the Defendants cannot be deemed to have falsely reported the purchase price of the mouth on March 30, 2009.

2) Freight portion

According to the evidence duly admitted and examined by the court below, the fact that the defendants reported 950 U.S. dollars 820 as actual freight when they filed an import declaration on March 30, 2009 is recognized.

However, according to the records of this case, when the Chinese business team of the non-indicted 2 corporation sent the invoice with the freight of 820 to the defendants by mistake, the defendants filed an import declaration on March 30, 2009 and falsely stated 950 U.S. dollars as 820 U.S. dollars as actual freight (the investigation record No. 448, 481, 540, 647 pages, 189 of the trial record). If the defendants had attempted to pass the preliminary examination of tax amount by reporting the import declaration price higher than the security price, it would be reasonable in light of the empirical rule to regard that the defendants intentionally failed to report the freight amount lower than the actual freight amount. In light of the above circumstances, it cannot be deemed that the defendants intentionally reported the freight amount.

3) Sub-decisions

Thus, although this part of the facts charged should be acquitted because it does not prove the facts charged, the court below accepted this part of the facts charged and found the defendant guilty. The court below erred by misapprehending the facts and affecting the conclusion of the judgment.

Therefore, this part of the Defendants’ assertion is with merit.

B. Determination as to the violation of the Customs Act as stated in [Attachment 2] Nos. 2 through 96

1) Judgment on the Defendants’ assertion

A) argument that freight does not include in “price” under Article 241(1) of the former Customs Act

Article 1 of the former Customs Act provides that the purpose of the same Act is to contribute to the development of the national economy by ensuring the imposition and collection of customs duties and customs clearance of exported and imported goods and the securing of import of customs duties. In addition, Article 241(1) of the same Act provides that any person who intends to import goods shall file a declaration with the head of a customs office (hereinafter referred to as “import declaration”) stating that the name, standard, quantity, price, kinds and number of packages, trademark and other matters prescribed by the Presidential Decree (hereinafter referred to as “import declaration”) shall be referred to as “import declaration”; Article 27(1) and (2) of the same Act provides that any person liable to pay customs duties shall file a declaration on the price of the relevant goods at the time of “import declaration” (hereinafter referred to as “price declaration”) with the head of a customs office, as prescribed by the Presidential Decree, stating in addition to the materials related to the determination of “value” (hereinafter referred to as “duty-free materials”) at the price of the goods sold to Korea or the price of the goods at issue (hereinafter referred to as “the price of goods at issue”).

In full view of the purpose of the former Customs Act and the relevant provisions of the import declaration and the attitude in practice, it is reasonable to interpret that the import declaration price to be declared by a person who is obligated to file an import declaration pursuant to Article 241(1) of the former Customs Act does not mean “purchase price” but means “value” including freight and insurance premium.

Therefore, in making an import declaration, the Defendants reported the freight higher than the actual freight, thereby falsely reported the import declaration price. Therefore, the Defendants’ assertion on this part is without merit.

B) The assertion that there was no intention to commit a false report

According to the evidence duly admitted and examined by the court below, since the defendants can be found to have falsely reported high freight rates than the actual ones with the intent to promptly clear the import lectures subject to the prior tax examination, it shall be deemed that the defendants had the intent to commit the crime of false reporting. Accordingly, the defendants' assertion on this part is without merit.

C) The assertion that Article 16 of the Criminal Code constitutes a mistake of law

The Defendants asserted to the effect that the Defendants’ act constitutes a mistake in the law under Article 16 of the Criminal Act and cannot be punished on the grounds that the Defendants’ act constitutes a mistake in the law as provided in Article 16 of the Criminal Act, since they made a false declaration on the freight higher than the actual amount according to the administrative guidance given by the customs collector in charge of the military customs clearance, which prohibits the filing of the import declaration price of the imported Han River to report above the base price for security.

However, in the investigation agency and the court below’s decision, Defendant 3 heard from the person in charge of customs clearance of the military customs office that there is difficulty in customs clearance when the import declaration price for the recruitment process does not reach the secured price. Defendant 3 merely delivered the position and information of the military customs office to Defendant 1 and Defendant 2, and stated to the effect that the person in charge of customs clearance of the military customs office was not suspected of falsely reporting the import declaration price to the Defendants above the secured price (on face of 644-645 of the investigation record, the trial record 211,214 of the trial record), and Defendant 3 stated to the effect that the person in charge of customs clearance of the military customs office stated that the import process would not meet the secured price if the import declaration price for the recruitment process does not reach the secured price, it is difficult to view that there was no further administrative guidance by the Defendants on the premise that there was an administrative guidance as above without examining the above facts.

2) Determination on Defendant 2’s assertion

Based on the evidence duly admitted and examined by the court below, Defendant 1, the investigative agency, and Defendant 2, as the representative director of Defendant 4 Co., Ltd. (Seoul High Court Co. 4 Co., Ltd.), ordered Defendant 2 to report important matters concerning the ordinary customs clearance service as the representative director of the company (Seoul High Court Co. 4 Co., Ltd.), and stated that Defendant 2 and Defendant 2 had ordered Defendant 3 to meet the secured price by raising the import declaration price (in relation to this case, the investigation record 524-525 page), and Defendant 2 also stated that it is difficult to pass customs without reporting the import declaration price from Defendant 3 at the end of March 2009, and that Defendant 1 could not adjust the purchase price, and thus, Defendant 2 instructed Defendant 1 to accept the import declaration price at the secured price (the investigation record 536-537 page). Thus, Defendant 1 and Defendant 2 did not have any reason to recognize the fact that Defendant 2 had participated in the above criminal act.

3) Determination as to the assertion by Defendant 4 Co., Ltd. (Seowon Co., Ltd. 4) and Defendant 5 Co., Ltd. (Seowon Co., Ltd.: Defendant 4)

According to the evidence duly admitted and examined by the court below, Defendant 1 and Defendant 3, who are employees of Defendant 4 Co., Ltd. (S. Co. 4) and Defendant 5 Corporation (S. Co. 4: Defendant 4), were falsely reported the import declaration price as stated in the annexed crime list Nos. 2 through 96, and Defendant 4 Co. 4 (S. Co. 4: 4) and Defendant 5 Corporation (S. Co., Ltd.: Defendant 4) were unable to perform their duty of due care and supervision necessary to prevent the above crime. Thus, the above assertion by Defendant 4 Co. 4 (S. Co. 4) and Defendant 5 Corporation (S. Co. 4: 4) is without merit.

4) Sub-committee

Ultimately, the judgment of the court below which found the defendant guilty of this part of the facts charged is just, and there is no error of mistake or misunderstanding of legal principles as argued by the

3. Conclusion

Therefore, the judgment of the court below is reversed under Article 364(6) of the Criminal Procedure Act without examining the Defendants’ assertion of unfair sentencing, and the following is again decided after oral argument, since the Defendants’ assertion of mistake of facts or misapprehension of legal principles is well-grounded.

Defendant 1 as a director of Defendant 4 Co., Ltd. (Co., Ltd. 4) and is the actual operator. Defendant 2 is the representative director of the above company. Defendant 3 is a person working for Defendant 5 Corporation (Seoul: Defendant 4 Corporation) who performed import clearance for the Han River in Korea imported by the above company, and Defendant 4 Co., Ltd. (S. Co. 4) is a company for the purpose of exporting and importing agricultural, fishery, and livestock products located in the Guri-si ( Address 2 omitted). Defendant 5 corporation (S. Co. 4 corporation) is a corporation for the purpose of importing and importing agricultural, fishery, and livestock products located in the Siri-si ( Address 2 omitted.).

1. Defendants 1, 2, and 3

Although Defendant 1, Defendant 2, and Defendant 3 accurately reported the name, standard, quantity, price, etc. of the pertinent goods in order to import the goods, Defendant 4 Co., Ltd. (UVICE) imported the domestic occupation of China from Nonindicted Co. 5 in China, the domestic occupation of China was designated as the goods subject to preliminary tax examination to prevent low-price return at a high rate of 377.3%, and if the customs duty rate is selected as the goods subject to preliminary tax examination, it would have difficulty in customs clearance due to the precise examination and the provision of security prior to repair. As such, Defendant 3 offered freight invoices (INVICE) different from the actual goods by Nonindicted Co. 2 Co., Ltd., the transportation company of the raw river, after being additionally issued a freight charge (INVIICE) by reporting the actual higher freight than the actual freight to the customs office and reporting the false import price by false means.

On April 1, 2009, the Defendants filed an import declaration with the head of the Gun/U.S. in the military customs office located in the Gunsan-si ( Address 1 omitted) on April 1, 2009 to the 24 tons of the birth mine from the Chinese Republic of Korea from the Chinese Republic of Korea to the Gun mountain port, and filed a false declaration on the import declaration price by reporting the freight higher than the actual freight as shown in the [Attachment 2] list in the attached list 2] from that time to August 14, 2009, and filed a false declaration on the import declaration price in the same way as shown in the table 2 to 96 minutes in the attached list 95 times in total. Accordingly, the Defendants conspired to import the total amount of approximately 2,279 tons of domestic production in the same way and filed a false declaration on the import declaration price.

2. Defendant 4 Co., Ltd. (Co-defendant 4)

Defendant 2, who is the representative of the defendant, and his employees, reported the above import declaration price in relation to the defendant's import declaration at the above date and place.

3. A corporation that is defendant 5 (a public corporation: the defendant 4 corporation).

Defendant 3, who is the employee of the defendant, filed a false declaration on the import declaration price at the above date and place.

1. Each statement corresponding to the above, made by the witness Nonindicted 3, Nonindicted 4, and Defendant 3 at the court below

1. Each protocol of examination of suspects against Defendants 2, 1, and 3 prepared by senior judicial police officers, containing statements corresponding thereto;

1. The statement of the defendant 3 prepared by a senior judicial police officer, which is consistent with it;

1. Entry of a written accusation prepared by the head of the military origin office;

1. A comprehensive investigation report prepared by the Chief of Military Customs Service and a statement of the amount of notification, respectively;

1. Article applicable to criminal facts;

A. Defendant 1, Defendant 2, and Defendant 3: Articles 276(1)4 and 241(1) of the former Customs Act; Article 30 of the Criminal Act

(b) Defendant 4 Co., Ltd. (Seoul High Court Co., Ltd. 4), Defendant 5 Co., Ltd. (Defendant 4): Articles 279, 276(1)4, and 241(1) of the former Customs Act;

1. Aggravation for concurrent crimes;

Article 37 of the Criminal Code and Article 278 (1) of the former Customs Act (Article 38 (1) 2 of the Criminal Code does not apply, and the amount of fine for each violation shall be calculated and added up)

1. Determination of sentence;

A. Defendant 1, Defendant 2, and Defendant 4 Co., Ltd. (Seoul High Court Co., Ltd. 4): A total of KRW 14,250,000 (= KRW 150,000 + KRW 150,000) for each offense

B. Defendant 3 and Defendant 5 Corporation (Defendant 4 Corporation): A total of KRW 9,500,000,000 for each violation (=100,000 x 95)

1. Detention in a workhouse;

Defendant 1, Defendant 2, and Defendant 3: Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The crime of this case is that the defendants falsely declared the import declaration price for the purpose of making customs clearance without undergoing the prior examination of the amount of customs duties by making a false declaration on the import declaration price for the purpose of making customs clearance in China. The crime of this case is not less than the nature of the crime and the criminal administration. In particular, Defendant 1 had the record of being sentenced to the suspension of the execution of imprisonment for the same kind of crime. Defendant 2 had the record of being sentenced to the suspension of the indictment for the same crime. Meanwhile, the defendants did not commit the crime of this case for the purpose of evading customs duties. Meanwhile, in the case of Defendant 3 and Defendant 5 corporation (Defendant 4 corporation), the defendants are in a position to perform duties according to the direction of the client, and other various circumstances, such as the circumstances surrounding the crimes of the defendants and the conditions before and after the crimes, etc., are determined the same sentence as the order of this case.

1. The summary of the facts charged (the part against the defendant in violation of Customs Act No. 1 listed in the annexed list of crimes against the defendant);

Defendant 1 as a director of Defendant 4 Co., Ltd. (Co., Ltd. 4) and is the actual operator. Defendant 2 is the representative director of the above company. Defendant 3 is a person working for Defendant 5 Corporation (Seoul: Defendant 4 Corporation) who performed import clearance for the Han River in Korea imported by the above company, and Defendant 4 Co., Ltd. (S. Co. 4) is a company for the purpose of exporting and importing agricultural, fishery, and livestock products located in the Guri-si ( Address 2 omitted). Defendant 5 corporation (S. Co. 4 corporation) is a corporation for the purpose of importing and importing agricultural, fishery, and livestock products located in the Siri-si ( Address 2 omitted.).

A. Defendants 1, 2, and 3

Although Defendant 1, Defendant 2, and Defendant 3 had accurately reported the name, standard, quantity, price, etc. of the pertinent goods in order to import the goods, Defendant 4 Co., Ltd. (UVICE) was designated as goods subject to preliminary tax examination in order to prevent low-price return at a high rate of 377.3%, and if the customs duty rate is pre-determined as the object of preliminary tax examination, it would be difficult to customs clearance due to the pre-assessment of customs value and the provision of security prior to repair. As such, Defendant 3 conspired to avoid the pre-assessment of customs duties by reporting the actual freight higher than the actual freight to the customs office and filing a false import declaration price.

On March 26, 2009, the Defendants filed an import declaration with the head of the Gun/Gu on March 30, 2009 with respect to 24 tons of the 24 tons of the raw river, which was brought into the military port from the Chinese ports to the military port, and filed an import declaration with the head of the Gun/Gu on March 30, 2009, the purchase price shall be reported to be 221 per ton, and the freight shall be reported to be not less than 950 tons, but it is anticipated that customs clearance is difficult because it was selected as the object of preliminary tax examination, and the import declaration price was falsely reported from 221 ton, the purchase price of the said raw river, which is the actual purchase price, to pass the preliminary tax examination. Accordingly, the Defendants conspired to report the import declaration price of the Korean raw river in collusion.

B. Defendant 4 Co., Ltd. (In the case of Daewon Co., Ltd. 4)

Defendant 2, who is the representative of the defendant, and his employees, reported the above import declaration price in relation to the defendant's import declaration at the above date and place.

(c) The defendant 5 corporation (the senior director: the defendant 4 corporation);

Defendant 3, who is the employee of the defendant, filed a false declaration on the import declaration price at the above date and place.

2. Determination

This part of the facts charged constitutes a case where there is no proof of facts constituting an offense as stated in Article 2-A(A). Thus, under the latter part of Article 325 of the Criminal Procedure Act, the Defendants are acquitted, and the summary of the part concerning Defendant 5 corporation (large-scale: Defendant 4 corporation) among the above verdict of innocence is published pursuant to Article 58(2) of the Criminal Act.

It is so decided as per Disposition for the above reasons.

[Attachment]

Judges Park Jong-won (Presiding Justice)

1) The kind, number and number of packages, destination, place of origin and shipment, and the place of origin labeling in the case of goods subject to labeling, method and form of labeling, trademarks, business registration number, customs clearance code and overseas supplier code, storage place of goods, and other reference matters (Article 246(1) of the former Enforcement Decree of the Customs Act (wholly amended by Presidential Decree No. 22816, Apr. 1, 201)).

2) Invoice, contract, amount of various expenses, evidential materials indicating the basis for calculation, and other materials necessary to verify the contents of the dutiable value return (Article 15(5) of the former Enforcement Decree of the Customs Act).

3) The instant indictment states that the Defendants conspired to refund excessive customs duties after the next, but it seems that it is irrelevant to the elements of the crime of false declaration under Articles 276(1)4 and 241(1) of the former Customs Act.