관세법 제2조 제10호 선용품에 관한 연구-대법원 2016. 10. 27. 선고 2016두42081 판결-

Supreme Court Decision 2016Du42081 is the first legal case, which settled interpretative dispute on the “stores” stipulated in Customs Act, Article 2.10., and of which main issue was, inter alia, about the meaning of “spare parts and accessories for repair.” The Respondent had, in practice, restricted the range of “spare parts and accessories for repair” only to those with tiny and expendable characters, however, the Applicant alleged that this practice was as illegal as incompatible with the ordinary meaning of the legal text. After claims of the Applicant for cancellation of taxations were upheld by the high court, which supported the doctrine of taxation-by-legislation, the Respondent started to argue that the stores of Customs Act shall be interpreted narrowly with considering the Revised Kyoto Convention. However, the Supreme Court remanded the decision of the high court, solely relying on systematic interpretation in Customs Act, without any review of the Convention. Nevertheless, those reasons of the Supreme Court are not quite right, in light of the literal interpretation based on comparative laws and provisions of Customs Act, including Article 81(1) and Article 143(2). Moreover, its conclusion is less flexible than that of literal interpretation, due to Customs Act, Article 143(3). On the contrary, according to the Vienna Convention on the Law of Treaties, the Republic of Korea cannot be liberated from the duty of RKC. Thus, it should be desirably considered in interpretation with the aim of judicial policy, even though this cannot be directly endowed with domestic legal status of “Act” inasmuch as concluded with no consent of National Assembly. For this reason, the conclusion of the Supreme Court can be evaluated legitimate, regardless of weaknesses in its reasoning.