보충적 과세가격 결정방법을 통한 관세포탈죄의 처벌에 관한 연구 – 대법원 2016. 10. 27. 선고 2014도16271 판결을 중심으로

Abstract

In the Pulmuone Customs Duty case(Supreme Court of Korea, Decision of 27 December 2016, 2014Do16271), the Supreme Court of Korea decided that the customs valuation method for the offense of evading customs duties must not have to be based on the transaction value. Since the WTO Customs Valuation Agreement declares that the primary basis for customs value is transaction value under Article 1, this decision arises a question that whether the defendant can be indicted for the offense of customs duties evasion without calculation of the amount of the evasion by using customs valuation method 1. This paper analyzes the case in the view of the principle of the WTO Customs Valuation Agreement and the rule of Tax Evasion of Korea Punishment of Tax Offenses Act. The prosecutor may use customs valuation method 2 through 6 under the Korea Customs Act and the WTO Customs Valuation Agreement to calculate the amount of the evasion. However, the Courts should judge the prosecution by the vagueness doctrine and the prosecutor’s burden of proof under the principle of nulla poena sine lege.