[특정범죄가중처벌등에관한법률위반(조세)·공문서위조·위조공문서행사][공2008상,635]
Whether Article 84(1) of the Local Tax Act includes the Act on the Aggravated Punishment, etc. of Specific Crimes in the Punishment of Tax Evaders Act (negative)
Article 84(1) of the Local Tax Act provides that "the Punishment of Tax Evaders Act, etc. shall apply mutatis mutandis to local taxes violations" under the title "the Punishment of Tax Evaders Act, etc. against local taxes violations". In light of the language and text of the Act and the form of application mutatis mutandis under Article 82 of the Local Tax Act, "the Punishment of Tax Evaders Act" means the Punishment of Tax Evaders Act and subordinate statutes thereto. Meanwhile, the provisions of Article 84(1) of the Local Tax Act only provide that local taxes violations on legislative convenience shall apply mutatis mutandis under the Punishment of Tax Evaders Act, and they do not immediately constitute a violation of the Punishment of Tax Evaders Act. Article 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that "The purpose of this Act is to contribute to the maintenance and development of sound social order by providing aggravated punishment, etc. under the Criminal Act, the Customs Act, the Creation and Management of Forest Resources Act, and the Act on the Control of Narcotics, etc., and it is difficult to interpret the provisions of the Local Tax Act to include the provisions of the Punishment Act in light of the Act.
Article 84(1) of the Local Tax Act, Articles 1 and 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes
Supreme Court en banc Decision 2004Do7773 Decided October 19, 2006 (Gong2006Ha, 1950)
Defendant 1 and one other
Prosecutor
Attorney Yu Sin-si
Seoul High Court Decision 2007No716 decided August 16, 2007
All appeals are dismissed.
The grounds of appeal are examined.
The interpretation of penal provisions shall be strict, and the interpretation of the meaning of the provision of a clear statement to the disadvantage of the defendant is not permitted because it is against the principle of no punishment without the law and it is against the principle of no punishment without the law (see Supreme Court Decisions 2003Do6535, Feb. 27, 2004; 2004Do7773, Oct. 19, 2006, etc.).
Article 84(1) of the Local Tax Act provides that "the Punishment of Tax Evaders Act shall apply mutatis mutandis to local tax-related violations" under the title of "the Punishment of Tax Evaders Act, etc. against local tax violations". In light of the language and text of Article 82 of the Local Tax Act and Article 82 of the Local Tax Act, "the Framework Act on National Taxes and the National Tax Collection Act" shall apply mutatis mutandis to the imposition and collection of local taxes, except as otherwise provided for in this Act and other Acts and subordinate statutes, the above "the Punishment of Tax Evaders Act" shall be construed as "the Punishment of Tax Evaders Act and its subordinate Acts and subordinate statutes" and Article 84(1) of the Local Tax Act shall be construed as "the Punishment of Tax Evaders Act and its subordinate Acts and subordinate statutes" (Article 84(1) of the Local Tax Act shall apply mutatis mutandis to the punishment of violations of the Punishment of Tax Evaders Act mutatis mutandis with respect to the legislative convenience of the Act, and it shall not be immediately included in the punishment provisions of the Act on the Aggravated Punishment, etc. of Specific Crimes, as it is difficult to interpret the Act and statutory provisions concerning the punishment and management of narcotics Act.
In the same purport, the judgment of the court below affirmed the judgment of the court of first instance which dismissed the public prosecution on the grounds that the violation of the Local Tax Act under Article 8 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes does not constitute the crime of evading taxes under Article 8 (1) of the Local Tax Act, and the violation of the Local Tax Act under Article 84 (1) of the Local Tax Act and Article 9 (1) of the Punishment of Tax Evaders Act is not accused by the tax officials, etc.
Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Si-hwan (Presiding Justice)