A defendant shall be punished by imprisonment for a year and a fine of KRW 350,000,00.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

except that the execution of the above imprisonment shall be suspended for two years from the date this judgment becomes final and conclusive.

A. misunderstanding of facts or misunderstanding of legal principles

In light of Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment, etc. of Specific Crimes Act”), when calculating the “total amount of supply values, etc.” under Article 8-2(1) of the Aggravated Punishment, etc. of Specific Crimes Act, the value of supply entered in the false tax invoice concerning the same processing transaction and the supply value entered in the false tax invoice shall be added.

Nevertheless, the court below held that it shall not be added up solely for the reasons indicated in its holding, and held the Defendant not guilty of the charge of violating the Specific Crimes Aggravated Punishment Act due to issuance of false tax invoices, etc. In so doing, the court below erred by misapprehending the facts or by misapprehending the legal principles

B. Unreasonable sentencing

The sentence (one year of imprisonment, two years of suspended execution) imposed on the accused by the court below is too unfluent and unfair.

2. Summary of the facts charged in this case

The Defendant is a person who operates ○○○ Trade, which is an enterprise that imports and sells other day and sanitary instruments, etc. in Gangdong-gu Seoul ( Address omitted).

No one shall issue any tax invoice under the Value-Added Tax Act without supplying goods or services for profit, or submit to the Government a false list of tax invoices by customer, entered in a false manner.

Nevertheless, the Defendant:

A. On or around February 3, 2015, the facts at the above ○○○ ordinary office are to issue a tax invoice of KRW 15,00,000 as if the ○○○○ usual office supplied the goods or services to △△△△ Housing, even though there was no fact that the ○○○○ usual office supplied the goods or services, and from that time, to November 30, 2015, including that a tax invoice was issued as if the 15,00,000 won was supplied with the sanitary tools equivalent to the 15,00,000 won, and until November 30, 2015, as shown in the list of crimes listed in the attached Table of the lower judgment (see, e.g., Supreme Court Decision 2002, Apr. 20, 2015).

B. On July 24, 2015, when filing the final return of value-added tax for the first time in 2015 from the Gangwon Tax Office located in Gangdong-gu Seoul Metropolitan Government, the Plaintiff submitted a false list of the total tax invoices by sales place, stating the supply price of KRW 407,741,818, as shown in the [Attachment Table 1] through 11 of the lower judgment, including the supply of sanitary tools equivalent to KRW 15,00,00 to △△△△ in the above period, as shown in the table of crime Nos. 15,00,000, during the above period;

C. On January 23, 2016, when filing a final tax return on the value-added tax for the second period of 2015 in the above Gangseo-gu Office, the Plaintiff supplied construction materials equivalent to KRW 18,200,000 to △△△△△ for the said period and submitted a false list of tax invoices by customer, as shown in [Attachment 36-52] No. 36-52 of the lower judgment’s supply price, as shown in [Attachment 36-52] of the list of crimes committed in the lower judgment.

3. Determination

A. Facts recognized

According to the evidence duly admitted and examined by the court below, the following facts can be acknowledged:

1) On January 30, 2015, the Defendant registered his/her business with the trade name called ○○○ Trade, and operated a different day and a sanitary instrument import and sales business.

2) Although the Defendant did not supply goods or services, the Defendant issued a false electronic tax invoice as follows:

① From February 3, 2015 to June 8, 2015, the lower court issued a false electronic tax invoice, such as the table of crime (hereinafter referred to as “crime list”) Nos. 1 to 10, as indicated in [Attachment 1] of the lower judgment.

② On June 30, 2015, an electronic tax invoice was issued as indicated in No. 11, 2015.

③ From September 7, 2015 to November 30, 2015, an electronic tax invoice was issued with false electronic tax invoice as indicated in the crime list Nos. 12 to 35, and an investigation was conducted regarding the transaction order in the strong tax book, and a false electronic tax invoice was issued on January 11, 2016 retroactively to the date of issuance of the initial electronic tax invoice (in the case of No. 27, December 21, 2015) on the ground of cancellation of the contract.

④ From August 28, 2015 to November 11, 2015, a false electronic tax invoice was issued as indicated in Nos. 36 to 52.

⑤ On July 24, 2015, at the time of filing a final return on the tax base of value-added tax for the year 1, 2015, a list of tax invoices by customer was submitted as if sales under the tax invoices listed in the table of crime dates were made. Of them, Nos. 1 through 10 were based on the details transmitted to the Commissioner of the National Tax Service, while no. 11 was submitted separately by the Defendant.

(6) On January 23, 2016, when filing a final return on the tax base of value-added tax for two years 2015 with the Gangwon Tax Office, a list of total tax invoices by customer was submitted as if sales under the tax invoices No. 36 through 52 set forth in the table of crime committed, which is based on the details transmitted to the Commissioner of the National Tax Service.

B. Determination

1) The judgment of the court below

A prosecutor brought a public prosecution by applying Article 8-2 (1) 2 of the Specific Crimes Aggravated Punishment Act, on the ground that the total sum of supply values of false tax invoices for 52 processing transactions listed in the list of crimes (2,692,127,726 won) and the total sum of supply values of the total tax invoices for each customer submitted (800,167,726 won =407,741,818 won +392,425,908 won) of the total sum of supply values of the total tax invoices for each customer submitted as if there was sales under the tax invoices for which revised tax invoices were not issued, exceeds 3 billion won.

The court below found the defendant guilty of the violation of the Punishment of Tax Evaders Act due to the issuance of false tax invoices and the violation of the Punishment of Tax Evaders Act due to the submission of the aggregate of supply values by false means, since the "total amount of supply values, etc." under Article 8-2 (1) of the Specific Crimes Aggravated Punishment Act refers to the size of transactions forged through the issuance of tax invoices or the preparation of the aggregate of tax invoices, etc.

2) Determination of the immediate deliberation

However, as examined below, in full view of the contents and purpose of Article 10(3) of the Punishment of Tax Evaders Act, Article 8-2(1) of the Specific Crimes Aggravated Punishment Act, the purpose and interpretation thereof, the crime of violation of Article 10(3) of the Punishment of Tax Evaders Act, the relation between the number of tax invoices and the list of total tax invoices, the difference between the list of tax invoices and the list of total tax invoices, and the changes in the procedures for reporting value-added tax due to the introduction of electronic tax invoices, etc., even if the calculation of the "total amount of supply values, etc." under Article 8-2(1) of the Punishment of Tax Evaders Act is related to the same processing transaction, it is reasonable to view that the total amount of supply values on the tax invoice under Article 10(3)1 of the Punishment of Tax Evaders Act should be added to the total amount of supply values on the tax invoice under Article

(A) Contents and purpose of the statute;

Article 10(3) of the Punishment of Tax Evaders Act provides that an act of issuing or receiving a tax invoice under the Value-Added Tax Act without supplying or being supplied with any goods or service (Article 10(3) and an act of filing a false list of tax invoices by seller under the Value-Added Tax Act with the Government (Article 3) shall be punished by imprisonment for not more than three years, or by a fine equivalent to not more than three times the amount calculated by applying the tax rate of value-added tax to the value of supply entered in the said tax invoice, the list of tax invoices by seller, and the list of tax invoices by seller. The provisions of the Punishment of Tax Evaders Act aim at establishing transparent tax invoices and preventing tax evasion.

Meanwhile, Article 8-2(1) of the Act on the Aggravated Punishment of Specific Crimes provides that where the sum of supply values or purchases entered in the tax invoice and invoice or the total of supply values or purchase values entered in the list of total tax invoices and the list of total tax invoices by buyer (hereinafter “total supply values, etc.”) is at least five billion won, a person who commits a crime under Article 10(3) of the Punishment of Tax Evaders Act for profit shall be punished by imprisonment for a limited term of not less than three years, and where the total supply values, etc. are at least three billion won but less than five billion won, a fine shall be imposed concurrently for a limited term of not less than one year, and Article 8-2(2) of the Punishment of Tax Evaders Act provides that a person who commits a crime shall be punished by a fine concurrently for a limited term of not less than one year. The provisions of the Aggravated Punishment of Specific Crimes Act stipulate that a case which disturbs tax order, such as the issuance of a false tax invoice for profit-making purposes, shall be punished by combining the acts under Article 10(3) of the Punishment of Tax Evaders Act and statutory punishment therefor (see Supreme Court Decision 25Do939, Sept.

B) Interpretation of Article 8-2(1) of the Specific Crimes Aggravated Punishment Act

Article 8-2 (1) 1 of the Specific Crimes Aggravated Punishment Act provides that "total amount of supply values, etc. entered in the tax invoice and invoice] or (the total amount of supply values, sales or purchases entered in the list of the total tax invoices) (the total amount of supply values, sales or purchases entered in the list of the total tax invoices)." Since tax invoices under Article 10 (3) 1 of the Punishment of Tax Evaders Act and the invoice under Article 10 (3) 2 of the same Act are linked to "B" and the total amount of tax invoices under Article 8-2 (1) 3 of the same Act are linked to "B" in the form of the text, it may be difficult to view that in calculating the total amount of supply values, etc. entered in the tax invoice, the amount of the total amount of supply values entered in the list of tax invoices

However, the Supreme Court made it clear that in calculating the "total amount of supply values, etc.", the supply values on the tax invoices under Article 10(3)1 of the Punishment of Tax Evaders Act and the total amount of supply values on the tax invoices under Article 10(3)3 of the same Act should be added (see Supreme Court Decision 2009Do3355, Sept. 29, 201).

In addition, Article 8-2 of the Specific Crimes Aggravated Punishment Act recognizes the purpose of profit-making from among the persons who committed the crime under Article 10(3) of the Punishment of Tax Evaders Act and provides for the aggravated punishment of those whose trading size is above a certain level. Thus, the determination of whether the specific crime Aggravated Punishment Act falls under the specific crime Aggravated Punishment Act shall

C) Number of offenses against each subparagraph of Article 10(3) of the Punishment of Tax Evaders Act

Article 10(3)1 of the Punishment of Tax Evaders Act provides that the number of tax invoices shall be punished without real transaction between the actors, but Article 10(3)3 of the same Act provides that since Article 10(3)3 of the same Act provides that an actor submits a false list of tax invoices to the Government, not only the date, place, the other party, and the object of the act may be established separately, but also the act shall be deemed as a substantive concurrent crime in principle. In other words, Article 8-2 of the Specific Crimes Aggravated Punishment Act does not punish tax evasion, but also regulates the transaction of false taxation data, so even if the act of receiving false tax invoices and submitting a false list of tax invoices including the act of submitting a false list of tax invoices for each act under the same purpose is in principle a separate crime. Accordingly, it cannot be said that it is unreasonable to punish the two acts by adding up the size of illegality to the above two acts.

Furthermore, in a case where a processing transaction overlapping with a tax invoice and a list of total tax invoices is included, insofar as only one crime is not deemed established in relation to the overlapping part at the time of finalization of the number of crimes, it is unreasonable to exclude the overlapping part from the total amount of supply values, etc. at the time of application of Article 8-2 of the Specific Crimes Aggravated Punishment Act. As seen earlier, it is reasonable to deem that the aforementioned two acts are in a substantive concurrent relationship. As such, it is difficult to

D) Differences between tax invoices and the list of total tax invoices

Where an entrepreneur supplies goods or services, in principle, a tax invoice shall be issued to the person to whom the goods or services are supplied at the time of supply (Articles 32(1) and 34(1) of the Value-Added Tax Act), while a list of total tax invoices shall be submitted at the time of the preliminary and final return of value-added tax (Articles 48, 49, and 54(1) of the Value-Added Tax Act). In other words, a tax invoice must be issued at any time at the time of the supply of goods or services by an entrepreneur, while a list of total tax invoices shall be submitted at the time of the preliminary and final return of value-added tax for which the

Article 54(1) of the Value-Added Tax Act provides that the registration number, name or title, and the business operator’s registration number, value-added tax, date of preparation, etc. shall be included in the tax invoice (Article 32(1) of the Value-Added Tax Act). On the other hand, the tax invoice list shall include the registration number, name or title, transaction period, preparation date, total sum of supply values for transaction period, and total sum of tax amounts (Article 54(1) of the Value

E) Changes in procedures for filing value-added tax due to the introduction of electronic tax invoices

With the amendment of the Value-Added Tax Act on December 26, 2008 by Act No. 9268 on Dec. 26, 2008, the Value-Added Tax Act was introduced to reduce tax cooperation costs and enhance transparency in transactions between business operators by facilitating the issuance of electronic tax invoices to corporate business operators, etc.

According to the Value-Added Tax Act and its Enforcement Decree, ① Any corporate entrepreneur and any individual entrepreneur whose total value of supply of goods and services by place of business in the immediately preceding year is 300 million won or more shall compulsorily issue electronic tax invoices (Article 32(2) of the Act, Article 68(1) of the Enforcement Decree of the Act), ② When an electronic tax invoice is issued, a detailed statement of the issuance of tax invoices shall be notified to the Commissioner of the National Tax Service by the day following the date on which the tax invoice is issued (Article 32(3) of the Act, Article 68(6) and (7) of the Enforcement Decree of the Act), and ③ Where a detailed statement of the issuance of electronic tax invoices is transmitted to the Commissioner of the National Tax Service by the 11th day of the month following the last day of the taxable period in which the relevant goods or services are

Meanwhile, an entrepreneur shall submit a list of the total tax invoices along with the preliminary and final return of value-added taxes for a fixed period of time (Article 54 of the Act). If an entrepreneur issues an electronic tax invoice and transmits the details of the issuance thereof to the Commissioner of the National Tax Service, it would be difficult for the National Tax Service to verify the accuracy of the report even if the entrepreneur does not submit a list of the total tax invoices, as the details of the details of the issuance of the electronic tax invoices are automatically classified and added within the National Tax Service system for each entrepreneur, and thus, it would be difficult for the National Tax Service to verify the accuracy of the report. Furthermore, it appears that the entrepreneur may not submit the list of the total tax invoices as above,

As can be seen, since electronic tax invoices are transmitted to the Commissioner of the National Tax Service, it is true that electronic information similar to the list of tax invoices has been prepared and stored in the National Tax Service system. However, Article 10(3) of the Punishment of Tax Evaders Act provides that the act of issuing false tax invoices and the act of submitting false list of tax invoices is a separate element. Article 8-2(1) of the Specific Crimes Aggravated Punishment Act provides that the act of issuing false tax invoices and the act of submitting false list of tax invoices is included. ② The submission of the list of tax invoices is limited to the case of transmitting the list of electronic tax invoices to the Commissioner of the National Tax Service by the 11th day of the month following the end of the taxable period in which the relevant goods or services are supplied. If electronic tax invoices or existing tax invoices are transmitted after that period, it is necessary to submit the list of tax invoices (including the defendant also issued the list of tax invoices when submitting the list of total tax invoices on July 24, 2015).

4. Conclusion

Since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

2. Each final return of value-added tax, a list of total sales tax invoices, and each electronic tax invoice;

Article 8-2 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 10 (3) 1 and 3 of the Punishment of Tax Evaders Act (In general, fines shall be imposed concurrently pursuant to Article 8-2 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes)

1. Discretionary mitigation;

Articles 53, 55(1)3, and 6 of the Criminal Act (The following consideration shall be given to the favorable circumstances described in the reasons for sentencing):

1. Invitation of a workhouse;

Articles 70(1) and (2), and 69(2) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (Ch. to be considered as being favorable for Sentencing under the following subparagraph)

The favorable circumstances for ○○: the Defendant did not have the same criminal history, and the Defendant was aware of the instant crime. The Defendant paid a considerable amount of taxes and penalty taxes that evaded. The Defendant appears to have committed the instant crime due to the purpose of compelling the transaction of products to the other party who requested the development of the product, or the absence of the method of issuing tax invoices, and does not seem to have an active purpose of evading taxes. The value-added tax that may be actually omitted due to the Defendant’s act must be calculated only by either issuing a false tax invoice or submitting a false aggregate tax invoice.

The sentencing conditions of the present case and the sentencing guidelines of the Supreme Court Sentencing Committee shall be determined by comprehensively taking into account the following factors: the Defendant’s age, sex, intelligence, environment, motive, means, results, and circumstances after the crime, including such unfavorable circumstances, favorable circumstances, etc., and the sentencing guidelines of the Supreme Court Sentencing Committee.

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

Judges Lee Jong-hoon (Presiding Judge)