[특정범죄가중처벌등에관한법률위반(조세)][하집1990(3),416]
The case holding that the act of evading value-added tax on the sales amount conducted in collusion with the owners of entertainment establishments constitutes concurrent crimes of violating the Punishment of Tax Evaders Act by each business establishment.
The defendant's act of evading the value-added tax on the sales amount in a manner that does not report the actual sales amount in collusion with the owners of 180 entertainment establishments by entering the name of the above business places in the column for the name of the bank credit card sales slip purchased at a discount from them and submitting the bank with the name of the above business places and the owner of the entertainment business places is not recognized as a joint relationship between the above business places in the manner of evading the value-added tax on the sales amount, the above act of the defendant is a concurrent crime of violating the Punishment of Tax Evaders Act, which is established for each business place, and cannot be punished by
Article 8 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 4291, Dec. 31, 1990); Article 9 of the Punishment of Tax Evaders Act; Article 37 of the Criminal Act
Defendant
Defendant
Seoul District Court (89 High Court Decision 1599)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for one year and a fine of ten thousand won.
When the defendant does not pay the above fine, the defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.
The number of detention days before the sentence of the judgment below shall be included in the above imprisonment;
However, the execution of the above imprisonment shall be suspended for two years from the date of the final decision.
The provisional payment of the amount equivalent to the above fine shall be ordered.
The gist of the defendant's first point of appeal is that the defendant did not know the fact or tax evasion by discounting the bank credit card sales slips, and even if the defendant stated the trade names such as "heat" and "the cafeteria", which are other business places, without stating the name "(title omitted) hotel age", which is the sales slips received at discount, the defendant does not contain any difference in the value-added tax to be paid by the above business operators such as "(name omitted) hotel age kyke" and "the cafeteria", which is the above sales place, and it does not constitute an unlawful error in the misapprehension of legal principles as to the defendant's act of tax evasion, and the judgment below which found the defendant guilty as the accomplice of value-added tax evasion, which affected the conclusion of the judgment, and the second point is that the defendant's act of tax evasion should not be included in the summary of the judgment, which affected the conclusion of the judgment, and there is no error in the misapprehension of legal principles as well as in the misapprehension of legal principles as to the defendant's act of tax evasion.
First, the first and third points of the grounds for appeal as well as the evidence adopted by the court below after lawful examination of evidence, it is acknowledged that the defendant conspired with the above (name omitted) hotel age and 9% discounts as of the original judgment, and then entered the name of the above business in the bank credit card sales slip at a discount of 8 through 9% from them so that their sales are not exposed to the above business, and the defendant's criminal intent of tax evasion can be acknowledged, and it cannot be concluded that the principal agent of other business listed in the above sales slip at the time of the above sales slip at the time of the above act was paid and the value-added tax should be paid. In addition, even if the principal agent of the above other business pays it, it cannot be viewed as value-added tax paid by the principal agent who actually sold the above business, as well as the amount of value-added tax paid by the principal agent who actually sold the sales, and therefore, the court below's decision cannot be viewed as being exempt from the above criminal act.
The following grounds for appeal are examined as to the second ground for appeal, and in order to consider the act such as the defendant's original judgment as an accomplice of the tax evasion of value-added tax, it is necessary to specify the amount of tax evasion and the method of each tax evasion as the principal owner of the business where the above credit card sales slip was discounted and sold at discount, and the court below and the trial court have taken full account of various evidences which had gone through legitimate investigation procedures in the court below, and as to each of the above businesses' respective value-added tax evasion, it is not recognized as joint relations between the principal owner of the above businesses, and the amount of each of the value-added tax evasion should not exceed KRW 20,00,00 as recognized after the above tax evasion is not more than KRW 20,00,00, and the defendant should be punished as concurrent crimes of each tax evasion crime. However, the court below did not specify the amount of tax evasion and the method of tax evasion of value-added tax evasion as a single comprehensive crime, and it is necessary to reverse the judgment below as to the remaining grounds for appeal without any specific reasons for appeal.
On the other hand, it is the case where the court can judge without the amendment of the indictment because it does not infringe the identity of the facts charged because it is a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes and the applicable provisions of the Act on the Aggravated Punishment, etc. of Specific Crimes and the applicable provisions of the Act on the Aggravated Punishment, etc. of Specific Crimes, and it is possible to judge by applying the Punishment of Tax Evaders Act to each act of evading value-added tax committed in collusion with the owners of the above businesses
Therefore, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the judgment is again ruled as follows.
The defendant from March 5, 1989 to 2nd floor of Seoul (tax address omitted) building 1989 to be engaged in the banking credit card discount business. (Name omitted) The name of the business establishment located in Seoul (tax address omitted) is "non-indicted 1", "non-indicted 2", "non-indicted 3", and "non-indicted 4", the name of the business establishment located in Seocho-gu, and "non-indicted 4", which are located in Seocho-gu, sell alcoholic beverages, etc. to customers and write the name of the business establishment in the name of the above 8th floor in Seoul (tax address omitted) building 10% of the sales revenue as it is exposed to the National Tax Service's sales revenue to 10% of the sales revenue of the above 8th floor, and the sales revenue of the above 9th business establishment shall be individually stated in the name of the above 9th business establishment without reporting the sales revenue, and the sales revenue of the above 9th business establishment shall be stated in the name of the above 9th business establishment.
The facts of the judgment
1. Statement suitable for it made by the defendant in the first trial record of the court below;
1. Statement made by Nonindicted 5 in compliance with this Court
1. Each protocol of examination of the accused prepared by the prosecutor, which contains each statement suitable for it;
1. Each statement made by the prosecutor with respect to Nonindicted 6, Nonindicted 7, and Nonindicted 5, which is suitable for each statement made by the prosecutor
1. Each statement prepared by the Defendant, Nonindicted 8, and Nonindicted 7, which conforms to the statements
1. Statements suitable for part of the accusation prepared by the malicious director of the tax office;
1. Among the protocol of seizure prepared by the prosecutor, there is evidence to acknowledge the seizure of 1,885 sales slips from the defendant.
Each act of the defendant in the decision of the court below shall be punished by both imprisonment and fine prescribed under Article 9 (1) 3 of the Punishment of Tax Evaders Act and Article 30 of the Criminal Act. Article 5 of the Punishment of Tax Evaders Act shall be punished by both imprisonment and fine. Since each of the above crimes is concurrent crimes under the former part of Article 37 of the Criminal Act, Article 38 (1) 2 of the Criminal Act, Article 4 of the Punishment of Tax Evaders Act, and Article 50 of the Criminal Act, among concurrent crimes prescribed in attached Table 131 of the Punishment of Tax Evaders Act, which are the most severe punishment under Article 50 of the Criminal Act, the defendant shall be punished by imprisonment with prison labor for one year and fine 10,000,000, and if the defendant fails to pay the above fine, the defendant shall be confined by imprisonment with prison labor for a period of one year converted into the above sentence of imprisonment with prison labor for 50,000 won, and the defendant shall not be punished by imprisonment with prison labor for 2 years prior to the above sentence of imprisonment with prison labor for 3 years.
It is so decided as per Disposition for the above reasons.
Judges Kim Jong-soo (Presiding Judge)