[2] Whether a crime under Article 8-2 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes is subject to prosecution by the Commissioner of the National Tax Service or the head of a tax office pursuant to Article 21 of the Punishment of Tax Evaders Act (affirmative)

[2] The crime under Article 8-2 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”) is merely an aggravated punishment for the purpose of profit-making among the crimes under Article 10 (3) and the former part of Article 10 (4) of the Punishment of Tax Evaders Act and the case where the total value of supply exceeds a certain amount, and thus, it cannot be deemed that a new type of crime that is not regulated by the Punishment of Tax Evaders Act has been newly established. Thus, unless otherwise provided in the Act, a prosecution may not be instituted without accusation by the Commissioner of the National Tax Service, the Commissioner of the Local Tax Service, the Commissioner of the National Tax Service, or the head of the tax office (hereinafter “the Commissioner of the National Tax Service, etc.”) pursuant to Article 21 of the Punishment of Tax Evaders Act. However, Article 16 of the Special Crimes Act only lists the crimes under Articles 6 and 8 of the Special Act, and does not have any other exception. Therefore, the crime under Article 8-2 (1) of the Special Cases Act should be deemed a condition for prosecution by the Commissioner

1. As to Defendant 1’s ground of appeal

“Profit-making purpose” under Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”) refers to the purpose of widely acquiring economic benefits (see, e.g., Supreme Court Decisions 2009Do1342, Feb. 11, 2010; 2010Do7289, Nov. 11, 2010); and the purpose of getting refund or deduction of value-added tax unfairly by submitting a list of total tax invoices by seller with false entries.

According to the reasoning of the judgment below and the records, Defendant 1 submitted a list of total tax invoices by seller, stating false facts as if he were supplied with goods or services equivalent to KRW 3,598,662,219 from the above companies, even though he did not receive goods or services from Nonindicted Co. 2 and Nonindicted Co. 3, such as the facts charged, in order to allow the Nonindicted Co. 1, which he manages, to illegally deduct input tax amount. In light of the above legal principles, Defendant 1’s above act is deemed to constitute for profit-making purposes stipulated in Article 8-2(1) of the Act on Special Cases.

Nevertheless, the court below held otherwise on the premise that even if the "for the purpose of profit-making" under Article 8-2 (1) of the Aggravated Punishment Act is interpreted as "the purpose of acquiring personal economic benefits", the purpose of submitting a list of total tax invoices by seller by seller by falsehood to the government should be excluded from "the purpose of submitting a false list of total tax invoices by seller to the government" shall be "if there is no other purpose of obtaining direct or indirect economic benefits, other than the purpose of evading taxes or taxes," it cannot be said that there was a purpose of evading taxes by Defendant 1's act, but it does not constitute a crime of violation of Article 8-2 (1) of the Aggravated Punishment Act and Article 10 (3) 3 of the Aggravated Punishment of Tax Evaders Act, and it does not constitute a crime of violation of Article 8-2 (1) of the Aggravated Punishment Act. It erred

2. As to the grounds of appeal against Defendant 2 and 3

The crime of Article 8-2 (1) of the Act on the Punishment of Tax Evaders is merely the purpose of profit-making among the crimes under Article 10 (3) and the former part of Article 10 (4) of the Punishment of Tax Evaders Act, and the case where the total value of supply exceeds a certain amount, and thus, it cannot be deemed that a new type of crime that is not regulated by the Punishment of Tax Evaders Act has been newly established. Unless otherwise provided for in the Act, a prosecution may not be instituted without accusation by the Commissioner of the National Tax Service, the commissioner of a regional tax office, or the head of a tax office (hereinafter “the Commissioner of the National Tax Service, etc.”) pursuant to Article 21 of the Punishment of Tax Evaders Act. However, Article 16 of the Act on the Aggravated Punishment, unless otherwise provided for in the Act, only list only the crimes under Articles 6 and 8 of the Act on the Aggravated Punishment, and does not have any other exception. Therefore, the crime of Article 8-2 (1) of the Aggravated Punishment

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, it is justifiable for the court below to maintain the judgment of the court of first instance that dismissed each part of the prosecution on the grounds that the indictment procedure against Defendants 2 and 3 was instituted without accusation by the Commissioner of the National Tax Service, and constitutes a case where the indictment procedure is null and void as it violates the provisions of law, and there is no error by misapprehending the legal principles on the requirements

3. Scope of reversal

The part of the judgment of the court below which acquitted Defendant 1 as to Defendant 1 has grounds for reversal as above, and the part which the court below found Defendant 1 guilty is in the relation of a single crime, and the part against Defendant 1 is subject to reversal in whole.

4. Conclusion

Therefore, the part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The appeal against Defendant 2 and 3 is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)