Defendant shall be punished by imprisonment with prison labor for one year and three months, and fine of three million won, and by imprisonment with prison labor for the crimes listed in [Attachment 1, 2, and 3] 1, and 3,00,000,000, and by imprisonment with prison labor for the crimes listed in [Attachment 3] 3 and 4.

When the defendant does not pay the above fine, the defendant shall be confined in a workhouse for the period calculated by converting the amount of KRW 100,000,000 into one day.

The number of days of detention before being sentenced to the judgment of the court below shall be included in the imprisonment above for each crime listed in the attached Table 1, 2, and 3 as of 85 days.

To order the defendant to pay the amount equivalent to the above fine.

A. misunderstanding of facts and misapprehension of legal principles

With respect to the facts charged on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax) due to the evasion of value-added tax (Article 3 of the facts charged in the judgment of the court below), the Defendant received a processing tax invoice from Nonindicted Co. 2 in order to fill the gap in the purchase volume in the account books arising from the issuance of the processing tax invoice by failing to force Nonindicted Co. 1, etc., and as a result, the Defendant filed a return of value-added tax on the basis of the processing tax invoice issued. As a result, even though the processing was entitled to the deduction of value-added tax based on the list of the total tax invoices by customer, it is not subject to value-added tax since the Defendant already paid value-added

Nevertheless, the court below found that the defendant submitted a false purchase tax invoice issued by the above non-indicted 2 corporation, etc. on the premise of sale through real transactions and obtained an unfair deduction of value-added tax as stated in the annexed crime List, and thereby committed mistake of mistake of facts and misapprehension of legal principles.

B. Unreasonable sentencing

As above, in light of the various sentencing conditions in the instant case, including the fact that there is a minor case where the sum of value-added taxes on the purchase portion premised on the aggregate of sales without real transactions is excluded, and that the Defendant is deeply divided for the instant crime, among the items 1, 2, and 3 of the judgment of the court below, the punishment of imprisonment with prison labor for each of the crimes Nos. 1, 2, and 2 in the attached Table Nos. 1, 2, and 3 in the judgment of the court below and the fine of KRW 3 billion in the attached Table Nos. 3 and 4 in the judgment of the court below is unfair.

2. Determination on the grounds for appeal

A. As to the assertion of mistake of facts and misapprehension of legal principles

(1) Summary of the violation of the Aggravated Punishment, etc. of Specific Crimes (tax) by the evasion of value-added tax among the facts charged in the instant case (Article 3)

The Defendant: (a) was a person who actually operated Nonindicted Co. 3; (b) had the intent to evade value-added tax by fraud or other unlawful means, such as filing a final return of value-added tax based on the total amount of supply on a false purchase tax invoice; (c) had the Nonindicted Co. 3’s office located in Yangju-si on April 25, 2006; (d) reported the total amount of tax on January 25, 2006 from Nonindicted Co. 2 as if he actually purchased oil equivalent to KRW 4,548,273,635 in total from Nonindicted Co. 2; and (e) had the filing deadline expired on July 25, 2006; and (e) evaded value-added tax deduction of KRW 454,827,363 by fraudulent or other unlawful means; and (e) had the intent to evade value-added tax by fraud or other unlawful means, as stated in the separate list of crimes.

Dozed Facts

According to the evidence duly adopted and examined by the court below and the trial court, the following facts are recognized.

The defendant established the non-indicted 4 as representative director, purchased non-indicted 3 corporation from non-indicted 5, etc. to supply non-indicted 3 corporation's name, supplied non-indicted 3 corporation with non-indicted 3 corporation's name without supplying oil, and issued a false tax invoice for sale to the same kind of business with the same kind of business without supplying oil. The defendant sold (title 1 omitted) oil equivalent to 5,063,117,250 won in total to the gas station (title 1 omitted) during the period from January 1, 206 to March 31, 206. In order to pretend the supply of oil from the non-indicted 2 corporation because there is no material for purchase, the name plates, corporate seal, etc. necessary for the issuance of the tax invoice from the non-indicted 2 corporation to the non-indicted 4,548,273,635 cause of purchase to the non-indicted 2 corporation, and then ordered the non-indicted corporation 2 to submit a false tax invoice for value-added tax to the tax office, and received it for 34.

After that, between April 1, 2006 and June 30, 2006, the Defendant sold free oil equivalent to KRW 10,194,122,698 in the gas station (title 2 omitted). As seen earlier, the Defendant prepared a false purchase tax invoice for the total supply value of non-indicted 2 corporation 9,940,580,071, which is the non-indicted 2 corporation, and had the non-indicted 2 corporation submit it to the tax office. On July 25, 2006, the Defendant was deducted from value-added tax amount of KRW 994,058,007 in the competent tax office including the sale and purchase amount.

Meanwhile, around October 25, 2006, the Defendant supplied to Nonindicted Incorporated Co. 3 to Nonindicted Co. 6 (business registration number omitted) during the period from July 1, 2006 to September 30, 2006 (i.e., the amount equivalent to 3,744,583,638 won, including the amount equivalent to 8,640,898,159 won, 864,089,815 won, which is 10% of the total sales of Nonindicted Co. 7 and other 33 businesses, including the amount equivalent to 3,74,54,561, 768, 467, 4685, 467, 4685, 467, 4685, 467, 4685, 467, 4685, 465, 467, 4685, 467, 4685, 467

In addition, the Defendant reported the sales tax invoice of Nonindicted Co., Ltd. 3, 342,953,250 won (i.e., total sales amount of KRW 33,429,532,509 x 10%) between October 1, 2006 and December 31, 2006, while filing a value-added tax return of Nonindicted Co. 3, 342,953,250 won (i.e., total sales amount of KRW 33,429,500 x 10%) among the input tax amount of KRW 3,334,025,638 (i.e., total purchase amount of KRW 33,340,256,380 x 10%) to Nonindicted Co. 3, Ltd. (i., total sales amount of KRW 33,927,612 won (i.e., KRW 3,340,334,638).

【Judgment

㈎ 2006년도 1기분 부가가치세 부분

First, according to the above facts, the sum of the value-added tax for the first period of July 25, 2006, which was finalized on July 2006, KRW 1,448,885,370 (attached Form 1, 2) in total, the sum of the value-added tax for the first period of 2006 (attached Table 2, 2006) constitutes a crime of evasion of tax, since the Defendant purchased a false tax invoice from Nonindicted Co. 2, even though the Defendant was unable to receive the original input tax by receiving oil through a non-data transaction, and was entitled to receive a false tax invoice from the supplier of the processed oil on the tax invoice, and thus, was entitled to the deduction of KRW 1,48,85,370 in total of the input tax amount as above.

㈏ 2006년도 2기분 부가가치세 부분

Next, in 206, the value-added tax (attached Form 3/4) for the second quarter (3/4 quarter) of 2006, which was reported on October 25, 2007 and confirmed on January 25, 2007, and the value-added tax (attached Form 4/4 quarter) for the second quarter (4/4 quarter) of 2006, declared and determined on January 25, 2007, even if there was no actual transaction, and even if there was a tax evasion by using a false purchase tax invoice on data even if there was no actual transaction, the business owner issued a false tax invoice even though there was no actual transaction with another business operator, and if the business operator filed a return on the amount of the input tax, the portion is not in the position to bear value-added tax because it did not actually provide goods or services. Therefore, in calculating the amount of the tax evaded after unfairly deducting the input tax amount, it is reasonable to exclude the portion of the output tax amount reported by the issuance of the above false tax invoice.

Therefore, the following circumstances acknowledged by the aforementioned evidence are the oil sales agent established by Nonindicted Co. 6 with the representative director of Nonindicted Co. 4 and 12 as Nonindicted Co. 13. In light of the fact that Nonindicted Co. 4, as the representative director of Nonindicted Co. 3, even though there was no real transaction with the said Nonindicted Co. 6 Co. 3, the value of supply between July 1, 2006 and September 30, 2006; the amount equivalent to KRW 3,74,583,00; and the amount equivalent to KRW 2,370,963,00 from October 1, 206 to December 31, 2006; the sales agent of Nonindicted Co. 6 is presumed to have been issued with the above Nonindicted Co. 3, the sales agent of the above Nonindicted Co. 4 and the sales agent of the above Nonindicted Co. 6 Co. 3, Ltd. were not to be found to have been issued with the above sales agent’s false tax invoice; the sales agent of the above KRW 61,504,50630,70.

Furthermore, with respect to the amount of value-added tax evaded for the second period (3/4 quarter) in 2006 between July 1, 2006 and September 30, 2006, the amount of value-added tax evaded for the second period (3/4 quarter), as seen above, 489,631,452 won (=7,896,314,521 won (=8,640,898,159-3,74,583,638), 10%) x 10% of the input tax amount scheduled for the same period is 489,631,452 won (i.e., 8,640,89,153, 15 gas stations), and 100 x 107,983,386,4786,487,486,386,47,487,486,786,37,486,47,487, and 947

In addition, from October 1, 2006 to December 31, 2006, the amount of value-added tax evaded for the second quarter (4/4 quarter) of 2006 between the two years from December 1, 2006 x (117,120,400 won [3,429,526,000 won-29,370,370,370,963,000 won] x 107,7085 won [the amount of value-added tax evaded for the same period excluding false sales from the above non-indicted 1 and 6 corporation] among the output tax amount reported for the above period x 17,120,40,400 won [the amount of sales 1,171,207,307,407,500 won]; the amount of value-added tax evaded for the first period x 105 won [the amount of value-added tax evaded for the non-indicted corporation 】 6060,5070,5070,70

Ultimately, the Defendant’s evasion tax amount of value-added tax for the second term (3/4, 4/4 quarter) in 2006 in relation to the purchase and sale of Nonindicted Co. 3 was 479,29,296,510 won in total (371,703,722 + 107,592,788 won in ＋ 107,585 won (=746,162,085 won + 3,333,425,50 won). Nevertheless, the lower court recognized the evasion tax amount as 4,079,587,585 won in 206, and there is no evidence to recognize that the amount of tax evaded was 4,079,587,585 won in addition to 37,585 won in relation to the purchase and sale of Nonindicted Co. 3.

· Sub-committee theory

Therefore, the defendant's appeal does not have reason for the part on the evasion of value-added tax for the first quarter (1/4, 2/4 quarter) in 2006, but has reason for the second quarter (3/4, 4/4 quarter) in 2006.

(b) Alteration of indictment;

Before the judgment on the Defendant’s assertion of unfair sentencing, the first head of the facts charged was examined ex officio, and the prosecutor applied for changes in the indictment to the effect that “The Defendant was sentenced to two years of suspension of execution for the violation of the Punishment of Tax Evaders Act by the Seoul Northern District Court on December 29, 2006, and the judgment became final and conclusive on January 6, 2007 and is still in the period of suspension of execution,” and that “the Defendant was exempted from value-added tax amounting to KRW 454,827,363” in paragraph 3(3)10-11, “including the evasion of value-added tax amounting to KRW 454,827,363,” and the judgment of the court below was no longer maintained since this was changed to the subject of the judgment.

3. Conclusion

If so, the defendant's appeal is well-grounded as seen above, and there are grounds for reversal of authority above. Thus, without examining the defendant's argument of unfair sentencing, the judgment of the court below is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act, and the judgment below is again reversed, and the arguments are

3. Intending to evade the value-added tax by fraud or other unlawful means, such as preparing a list of total tax invoices by seller stating the supply values in false purchase tax invoices as described in paragraph (2), and filing a final return on value-added tax based thereon;

On April 25, 2006, when filing a tax return for the first period of January 2006 at the office of Nonindicted Co. 3, 2006, entered the aggregate amount of KRW 4,548,273,635 in the aggregate of KRW 4,579,296,510 (the amount of evaded tax in 2007) in the aggregate of KRW 1,48,885,370 (the amount of evaded tax in 2006) and KRW 479,296,510 (the amount of evaded tax in 2007) in the aggregate of KRW 1,48,885,370 (the amount of evaded tax in 206) in the list of tax invoices by seller as stated in Article 2-B(b) of the above Act, and filed a return on the purchase amount. On July 25, 2006, the amount of value-added tax was reduced by taking advantage of each unfair deduction.

(a) False entry of the tax invoice and the issuance of the tax invoice (the first fact on the market);

Article 11-2 (1) 1 of the Punishment of Tax Evaders Act, and Article 30 (Selection of Imprisonment)

(b) The fact that a list of total tax invoices by seller is entered in the Government and submitted to the Government (the fact that subparagraph 2-a is submitted at the time of sale);

Article 11-2 (4) 3 of the Punishment of Tax Evaders Act (Selection of Imprisonment)

Article 8-2 (1) 1 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes; however, since the above provision was newly established on December 29, 2005 and enforced three months after its promulgation in accordance with the Addenda of the same Act, the crime in this part is subject to the Punishment of Tax Evaders Act in accordance with Article 1 of the Criminal Act, and it is not required to amend the Act on the Aggravated Punishment, etc. of Specific Crimes since it constitutes a case within the scope of the same charge and there is no possibility of substantial disadvantage to the defendant's defense.

(c) The fact that the list of total tax invoices by seller is falsely entered and submitted to the Government (the fact that it is listed in subparagraph 2-b).

Article 8-2 (1) 2 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 11-2 (4) 3 of the Punishment of Tax Evaders Act (Concurrent Imposition of Fines)

(d) The fact that a list of total tax invoices by seller is entered in the Government and submitted to the Government (the fact of subparagraph 2-c at the time of sale);

Article 8-2 (1) 1 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 11-2 (4) 3 of the Punishment of Tax Evaders Act (Concurrent Imposition of Fines)

(e) The point of tax evasion in 2006 (the fact of title 1 and 2 of Attached Table 3 in the market); and

Article 8(1)1 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 9(1)3 of the Punishment of Tax Evaders Act (Concurrent Imposition of Imprisonment and Fines)

(f) The point of tax evasion in 2007 (the fact of title 3 and 4 of [Attachment 3] of the annexed crime list chip 2007;

Article 9 (1) 3 of the Punishment of Tax Evaders Act (Selection of Imprisonment)

2. Handling concurrent crimes and legal mitigation;

(a) The latter part of Articles 37 and 39(1) of the Criminal Act (trade between the crimes on which the judgment of first head of the crime and the crime in the holding other than the crime of violating the Punishment of Tax Evaders Act due to the evasion of tax in 207 has

(b) The latter part of Article 39(1) and Article 55(1)3 of the Criminal Act (limited to imprisonment with prison labor for each crime other than the crime of violating the Punishment of Tax Evaders Act due to tax evasion in 2007, taking into account the equity between the cases where a judgment is rendered concurrently with the crime of violating the Punishment of Tax Evaders Act as

3. Aggravation of concurrent crimes;

(a) former part of Article 37, Article 38 (1) 2, Article 50, and the proviso to Article 42 of the Criminal Act [aggravating concurrent crimes with imprisonment provided for in the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) due to a tax evasion in 2007, with respect to imprisonment, among the remaining crimes, except for a violation of the Punishment of Tax Evaders

(b) Article 4 (1) of the Punishment of Tax Evaders Act (in relation to fines, including each fine in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Delivery, etc. of False Tax Invoice) and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

4. Discretionary mitigation;

Articles 53, 55(1)3, and 6 of the Criminal Act (see, e.g., Articles 55(1)3 and 55(1)6)

5. Determination of fines;

Section 2-b(b)(c) of the holding, which is a fine of KRW 50 million, KRW 1 billion, KRW 2-c(a) of the holding, and KRW 3 billion in total, shall be determined respectively as KRW 1.5 billion, and KRW 1.5 billion in the attached Form 3 of the holding, and KRW 3 billion in total (=50 billion + KRW 1 billion + KRW 1.5 billion).

6. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

7. Inclusion of days of pre-trial detention;

Article 57 of the Criminal Act

8. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

However, the punishment as ordered shall be determined by taking into account various sentencing conditions stipulated in Article 51 of the Criminal Act, such as the fact that the defendant is in depth of his mistake, the fact that there is no penalty of a fine or a heavier punishment than a suspended sentence, the age, character and conduct, environment, family relationship of the defendant, circumstances leading to the crime of this case, result, etc.

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

[Attachment Form 5]

Judges Han-su (Presiding Judge)