특정경제범죄가중처벌등에관한법률위반(배임)등
The judgment below
The guilty portion of the Defendants and the false tax invoice against the Defendants are received.
The grounds of appeal are examined.
1. As to the Prosecutor’s Grounds of Appeal
A. (1) The grounds for entry of the applicable provisions in the indictment in the indictment include misunderstanding of legal principles as to the principle of no accusation related to the violation of the Punishment of Tax Evaders Act by receiving false tax invoices. As such, even if there is any error or omission in the entry of applicable provisions in the indictment, it does not affect the validity of the prosecution unless there is any substantial disadvantage in the defense of the defendant, and the court may apply the legal provisions that are not immediately written in the indictment without going through the procedures for modification of the indictment, as well as without going through the procedures for modification of the indictment.
(2) Where a person who is obligated to submit a tax invoice under the Value-Added Tax Act at the time of the enforcement of the former Punishment of Tax Evaders Act (amended by Act No. 7321, Dec. 31, 2004; hereinafter “former Punishment of Tax Evaders Act”) or the amended Punishment of Tax Evaders Act (wholly amended by Act No. 9919, Jan. 1, 2010; hereinafter “Revised Punishment of Tax Evaders Act”), and a person who is obligated to submit a list of total tax invoices to the Government, receives a false tax invoice, such as additional supply price, through a conspiracy between the supplier and the supplier, and receives the supply price, constitutes a violation of Article 11-2 (2) or 11-2 (2) of the former Punishment of Tax Evaders Act.
(2) As to “the violation of the Punishment of Tax Evaders Act by receiving false tax invoices from N among the facts charged in the instant case,” which the first instance court found the Defendants guilty by applying the “Article 11-2(4)1 of the Punishment of Tax Evaders Act” in the column for the applicable provisions of the indictment, the lower court is the Defendant A, the representative director of the KN (hereinafter “K”).