[Ruling Result]
The Supreme Court ruled that if a person only requested the purchase without leading the customs clearance process of smuggled goods, they cannot be punished for smuggling under the Customs Act.
The Supreme Court Criminal Division 2 (Presiding Justice Kwon Young-jun) on the 13th overturned the lower court's guilty verdict against Mr. A, an importer of tattoo supplies (represented by attorneys Lee Jin-ho, Han Gap-su, Lim Hye-min, and Park Il-gyu of Law Firm Hyundam), for violating the Customs Act, and remanded the case to the Uijeongbu District Court (2023Do1907).
Through this ruling, the Supreme Court clearly stated that the subject punishable for smuggling under the Customs Act is the "person who substantially performed the import act."
[Facts and 1st and 2nd Trials]
Mr. A operated a business importing and selling tattoo supplies and was indicted on charges of smuggling by importing approximately 97,000 tattoo supplies worth about 87 million KRW from a Chinese company in four shipments between July 2014 and August 2015 without listing them on the customs clearance documents or reporting to customs.
During this process, Mr. A requested Mr. B, who operated a purchasing agency, to act as a purchasing agent. Mr. B purchased the goods from the seller in China and then brought them into Korea and delivered them to Mr. A.
The first and appellate courts found that "Mr. A, as the importer of the smuggled goods, at least tacitly recognized that the goods were not reported to customs" and convicted him of violating the Customs Act, sentencing him to 1 year and 6 months in prison with a 3-year probation.
[Supreme Court Judgment (Summary)]
However, the Supreme Court overturned the lower court's decision, stating that the term "person who imported goods without reporting to the head of customs" under the Customs Act does not mean the importer or taxpayer of the unreported goods themselves, but rather refers to the person who actively participated in the customs clearance process and led decision-making regarding smuggling, i.e., the "person who substantially performed the import act."
The Supreme Court explained, "The penal provision in this case defines the subject as 'a person who imported goods without reporting to the head of customs,' not limited to importers or taxpayers. The main purpose of the penal provision is to ensure proper customs clearance procedures for imported goods, and securing customs revenue is only a secondary objective. Therefore, the focus of punishment is on the 'import act itself that bypassed necessary customs procedures.'"
It further stated, "When determining whether a person is the substantial importer, all circumstances should be comprehensively considered, including the import route of the goods, the method and extent of control or involvement in the actual import or customs clearance process, and the method of paying customs duties."
Moreover, the Court noted, "Even if the defendant is the importer of smuggled goods, it is difficult to conclude that they fall under the 'person who imported goods without reporting to the head of customs' as defined in the penal provision. The court should have more closely examined whether the defendant actually participated in the import process or led decision-making regarding smuggling and substantially performed the import act. The failure to properly consider these factors and the guilty verdict were erroneous."
Reporter An Jae-myung, Legal Newspaper
※This article is based on content supplied by Law Times.
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