(a) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

(b) Occupational embezzlement;

(c) Forgery of private documents;

(d) Exercising a falsified investigation document;

(e) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes;

(Violation of Recognized Punishment of Tax Evaders Act)

f. Violation of the Punishment of Tax Evaders Act

2. B

Law Firm E, Attorney F (Defendant B)

Defendant B is ordered to pay an amount equivalent to the above fine to Defendant B.

[2016 Highest 1114]

1. Occupational embezzlement by Defendant A;

The defendant is the fund manager of the fund management company G with the share of 100% of the victim B (hereinafter referred to as "B"), who has been engaged in the business of substantially managing and operating the fund of the company B, and the accomplice H (the final decision of December 10, 2015) has served as the deputy head in charge of the business of I (hereinafter referred to as "I") of the mobile phone manufacturer and distributor with the head office in Taiwan.

around June 201, the Defendant and H planned to put “K, the business owner of which is its own, into the distribution stage, and to have the profits of K acquired by the Defendant and H, while promoting the distribution business that B purchases a liquid book from the manufacturing company with the I’s purchase fund and supplies it to the mobile phone retail store.

While the Defendant and H have been engaged in the business of purchasing and supplying Liriri as above, they solicited Ha and the Defendant to use Ha and the Defendant for personal purposes, not for the purchase of Liriririri, the amount that B transferred to K as a fund for the purchase of Liririririri.

A. On August 31, 201, the Defendant and H transferred KRW 132 million of the Company’s funds to the NAC account for the purchase price of I mobile phone L, and kept in the course of business for B. H immediately transferred the said funds to the NAC account of her own J. After immediately transferring the said funds from the said NAC account to the NAC account of the said J. From October 3, 201, the Defendant and H transferred KRW 10 million from the said NA’s account to the NAC account of the said J, KRW 5 million in total three times. < Amended by Presidential Decree No. 23272, Oct. 20, 2011; Presidential Decree No. 23272, Oct. 20, 2011; Presidential Decree No. 25750, Oct. 20, 2011; Presidential Decree No. 25700, Feb. 25, 2011>

After that, the Defendant used part of the above 55 million won for personal purposes, such as living expenses, by withdrawing or settling cash with the debit cards of the above JJ’s account, and H used part of the remainder for personal purposes, such as living expenses.

B. On November 24, 201, the Defendant and H transferred KRW 147,400,000 from B to B’s agricultural bank account in the same manner as described in the foregoing paragraph (a) and transferred the purchase price of KRW 100,000 from B to B for the said L, and H immediately transferred the said amount to her agricultural bank account by locating J’s agricultural bank account, and thereafter, H transferred KRW 40,000,000 from the said agricultural bank account to the said J’s Korean bank account on December 5, 201, respectively, and transferred KRW 20,000,000 on two occasions in total.

After that, the Defendant used part of the above KRW 40 million for personal purposes, such as living expenses, by withdrawing or settling cash with the debit cards of the above JJ’s account, and H used the remainder for personal purposes, such as living expenses, in cash.

In collusion with H, the Defendant embezzled the total amount of KRW 95 million owned by the victim in total five times.

2. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud);

A. The Defendant and H continued to receive funds from B in a manner that, on the ground of false transactions, received funds from B, such as the purchase price of I mobile phone L, by adding certain profits to the purchase price received prior to the purchase price, and return them to B by taking out the appearance of the purchase fund granted to B.

H, on January 4, 2012, one false statement to the effect that "the purchase of I mobile phone Lane and supply them to retail stores" was false, and the Defendant sent a false statement to the effect that "the purchase order of the above documents and the purchase order of the goods to B offices located in Gangnam-gu Seoul at that time, the Defendant, while placing the above documents and the purchase order of the goods to N in the financial officer of B, would carry out the I mobile phone Lbook distribution business through K, and therefore, he paid the purchase price to K.

However, there is no fact that I ordered a mobile phone set-off, so even if the defendant and H received the purchase price from B, they did not intend to purchase one mobile phone set-off and deliver it to retail stores, or to pay it to B with the purchase fund from the I head office.

Nevertheless, Defendant and H, as seen above, by deceiving B financial officer in charge of B, received KRW 15 million from B through the NA account of K business L in the name of purchase price for I mobile phone L on January 4, 2012, through the 10,000,000 won. From around that time to December 18, 2012, Defendant and H acquired KRW 8 billion in total under the same method as indicated in the list of crimes (1) in the same manner, such as the list of crimes (1) from around 19 times to December 18, 2012.

B. Around November 2012, the Defendant and H had commenced a tax investigation with respect to K, and no longer receive the purchase price related to the I Distribution Business from K from B, the Defendant and the H planned to use the remainder by receiving money from B as the loan proceeds. A part of the Plaintiff, which had been established by H, received money from B, was prevented from returning the purchase price received in connection with the I Distribution Business to B, and the remainder was planned to be used by them.

Accordingly, on February 8, 2013, the Defendant made a false statement to the effect that the Defendant borrowed KRW 800,000 to 0,000 operated by H as he planned to receive reimbursement from P in charge of finance of B up to February 21, 2013.

However, in fact, the defendant and H proposed to return the money borrowed from B to B or to use it for personal use as above.

Nevertheless, the Defendant and H, as above, by deceiving a financial officer in charge of B, obtained 80 million won through the one bank account from B through the same day as the loan money.

C. When the Defendant and H were no longer able to receive the purchase price related to the distribution business from B, the Defendant and H attempted to promote a business by purchasing QHphone from R with the domestic distribution right of QHphone and deliver it to retail stores. Some of them received money for the purpose of issuing a bank balance certificate to R and received money for the purpose of issuing a bank balance certificate, and the remainder was planned to be used by them.

On February 20, 2013, the Defendant, at the above B office, issued a bank balance certificate from R to acquire the right to purchase the sales of QHphone distribution business, and made a false statement to the effect that the Defendant borrowed KRW 1 billion to this effect.

However, in fact, in order to promote the above hedge distribution business, it is necessary to secure only deposits equivalent to KRW 200 million, and H and the defendant were scheduled to use KRW 800 million, excluding the above KRW 200 million among the above KRW 1 billion for the personal use of H and the defendant.

Nevertheless, the Defendant and H, by deceiving the financial officer in charge of B as above, obtained KRW 1 billion from B through the SC bank account of KRW 0 under the pretext of the loan for issuing a balance certificate.

D. The Defendant and H planned to pay part of KRW 1 billion received from B for the purpose of issuing a balance certificate of bank, and continuously use the purchase price of the said Hphone by acquiring it.

On March 26, 2013, at the above B office, the Defendant made a false statement to the effect that “The Defendant would purchase and deliver the above P with 1.1 billion won from R” and pay the purchase price to S through QHphone distribution business.”

However, the defendant and H did not have the intention or ability to purchase QHphones equivalent to KRW 1.1 billion from R.

Nevertheless, the Defendant and H, by deceiving a person in charge of the financial affairs of B as above, obtained 1.1 billion won through the SC bank account of 0 SC Bank on the same day from B through the aforesaid Hphone purchase price.

As a result, the Defendant, in collusion with H, received a total of KRW 10.95,599 million by deceiving the victim B.

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3. Forgery of private documents and uttering of private documents by Defendant A;

On February 20, 2013, the Defendant prepared the “Agreement of Joint and Several sureties” at the office in Gangnam-gu, Seoul, without the consent of the Defendant’s wife, who was requested by the said company to have a joint and several sureties for the obligation of KRW 1 billion, and used the “Agreement of Joint and Several sureties” without the consent of the Defendant’s wife. The Defendant arbitrarily stated T’s resident registration number, address, and name, affixed a prior seal imprint of T in his custody, and forged one copy of T’s joint and several sureties agreement, which is a private document on rights and obligations, and submitted one copy of the forged Agreement of Joint and Several sureties to U without knowledge.

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4. Violation of the Punishment of Tax Evaders Act by Defendant A;

The defendant is the operator of the Gangnam-gu M building and B's office in the third floor of Seoul.

(a) Receipt of false tax invoices;

No person shall be issued a tax invoice under the provisions of the Value-Added Tax Act without being supplied with the goods or services.

Nevertheless, the Defendant, at around March 8, 2012, issued a false tax invoice as if he received a false tax invoice as if he received goods or services equivalent to KRW 270,000,000 from K, even though the Defendant had not received goods or services from the Company B, at the office around March 8, 2012. From that time, until December 17, 2012, the Defendant received a false tax invoice as if he received goods or services equivalent to KRW 7,023,627,190, total value of supply from the Company, as shown in the list of crimes (2).

(b) Issuance of false tax invoices;

No person shall issue a tax invoice as provided in the Value-Added Tax Act without supplying any goods or service.

그럼에도 피고인은 2012. 3. 6.경 위 B 사무실에서 사실 주식회사 B가 V 등 업체에게 재화나 용역을 공급한 사실이 없음에도 불구하고 V에게 공급가액 147,272,727원 상당 재화나 용역을 공급한 것처럼 허위 세금계산서를 발급한 것을 포함하여, 그떄부터 2012. 12. 3.경까지 별지 범죄일람표(3) 기재와 같이 V 등 업체에게 공급가액 합계 7,611,890,000원 상당 재화나 용역을 공급한 것처럼 허위 세금계산서를 발급하였다.

(c) Submission of false list of total tax invoices by customer;

No person shall submit to the Government, without being supplied with goods or services, a list of invoices for individual suppliers under the Value-Added Tax Act by entering it falsely.

Nevertheless, on April 25, 2012, the Defendant filed a value-added tax return in Gangnam-gu, Gangnam-gu, Seoul, and submitted a list of total tax invoices by purchaser, stating as if he was supplied with goods or services equivalent to KRW 734,401,818, the supply price of which is the total amount of KRW 734,401,818 from K, including the submission of a false list of total tax invoices by purchaser from K, etc., from January 24, 2013 to January 24, 2013.

(d) Submission of a false list by buyer;

No person shall submit to the Government, without supplying goods or services, a sum table of invoices for customer tax under the Value-Added Tax Act by entering it falsely.

Nevertheless, on April 25, 2012, the Defendant filed a value-added tax return with the said Gangnam Tax Office, and submitted a list of total tax invoices by customer, stating false information as if he/she supplied goods or services equivalent to KRW 320,000,000, to V, etc., even though he/she did not have supplied goods or services to the companies, including the submission of a list of total tax invoices by customer, stating false information as if he/she supplied goods or services equivalent to KRW 320,00,00 in total, from that time to January 24, 2013, to V, etc., such as the list of crimes (4) Nos. 5 through 8, 8,196,530,000 in total supply value.

5. Violation of the Punishment of Tax Evaders Act by Defendant B

The defendant is a corporation established with the main purpose of distributing franchises related to food beverages.

The Defendant received or issued a false tax invoice equivalent to KRW 30,155,676,198 in total supply value as stated in the above paragraph (4) with respect to the Defendant’s business at the same time and place as described in the above paragraph (4), and submitted to the Government a list of total tax invoices by customer and customer.

Summary of Evidence

"2016 Gohap114"

1. The defendant A's partial statement

1. Legal statement of the witness H;

1. Each police statement made to W, U, and P;

1. Copy of e-mail, etc. sent by a suspect A and H; (ju) B copy of the register of public accounts; (B) copy of the accusation (No. 76903); B; (2) copy of the transaction (No. 2013 type No. 88095); written complaint (2013 type No. 88095); loan agreement; written opinion of an accused agent; B’s certified transcript of corporate register; W and X e-mail; B’B details of transaction (2.10,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,000,00,00,00,000,00,000,00,000,00,00,000,00.

Supreme Court Decision 2015Do15947 Decided Punishment

"2016 Gohap1218"

1. Defendant A’s legal statement

1. Each police statement to T or U;

1. A complaint, entry or departure certificate, complaint, joint and several guarantee agreement, each certificate of personal seal impression, investigation report (investigation on a certificate of personal seal impression issued in the name of the complainant), request for investigation cooperation, recording on the complainant, issuance register of a certificate of personal seal impression, power of attorney, and report on investigation;

"2017 Gohap200"

1. The defendant A's partial statement

1. Legal statement of the witness H;

1. Each police interrogation protocol of AA and W;

1. A written accusation, a statement of completion of the investigation of tax offenses by seller, a list of total tax invoices by seller (total in the second half of year 2012), a list of total tax invoices by seller (total in the second half of year 2012), a list of total tax invoices by seller (total half in the second half of year 2012), a list of total tax invoices by seller (total half in the first half of year 2012), a list of total tax invoices by seller (total half in the first half of year 2012), a list of total tax invoices by seller (total half in the first half of year 2012), two copies of a service contract, a service contract, a service contract, a service contract, a written statement, a summary order (H), a list of total tax invoices by seller (the second half of year 2012), a list of total tax invoices by seller (the latter part of year 2012), a certificate of completion of investigation related to trade order, a copy of a tax investigation report (including tax invoices, etc.);

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

(a) Defendant A: Articles 356, 35(1), and 30 (Occupational Embezzlements, inclusive of them) of the Criminal Act; Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Articles 347(1) and 30 of the Criminal Act; Article 347(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Article 231 of the Criminal Act; Article 231 of the Criminal Act; Articles 234 and 231 of the Criminal Act; Article 234 of the Criminal Act; Article 231 of the Criminal Act; Article 10(3)1 of the Punishment of Tax Evaders Act; Article 10(3)3 of the Punishment of Tax Evaders Act; Article 10(3)3 of the Punishment of Tax Evaders Act (the submission of a false aggregate tax invoice; the selection of imprisonment)

(b) Defendant B corporation: Articles 18 and 10 (3) 1 of the Punishment of Tax Evaders Act (issuance and receipt of false tax invoices), and Articles 18 and 10 (3) 3 of the Punishment of Tax Evaders Act (including the submission of a list of total tax invoices);

1. Aggravation for concurrent crimes;

(a) Defendant A: the first sentence of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act is the most severe penalty provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

(b) Defendant B: the former part of Article 37 of the Criminal Act, Article 20 of the Punishment of Tax Evaders Act (Article 38 (1) 2 of the Criminal Act shall not apply, but the fine shall be determined separately for each violation of the Punishment of Tax Evaders Act);

1. Discretionary mitigation;

Defendant A: Articles 53 and 55(1)3 of the Criminal Act (The conditions favorable to the reasons for sentencing below)

1. Order of provisional payment;

Defendant B: Article 334(1) of the Criminal Procedure Act

Judgment on the assertion of Defendant A and Defense Counsel

1. The point of occupational embezzlement;

A. Summary of the assertion

Even if the Defendant and H divide the amount of KRW 95 million out of the amount received as a price for purchase of a mobile phone from B (hereinafter “victim”), since the amount paid by the victimized company to K was paid through a normal transaction agreement, the said amount is owned by K. Therefore, it cannot be deemed that the Defendant and H were in the position of a person who keeps the said money in the course of business for the victimized company.

B. Determination

In the crime of embezzlement, “the custody of goods” means a state of de facto or legal control over the property, and the custody thereof should be based on the consignment relationship. However, it is not necessarily required to be established by a contract such as loan of use, lease, delegation, etc., and may also be established by administrative management, custom, cooking, good faith principle, etc. (see, e.g., Supreme Court Decision 2010Do17396, Mar. 24, 201).

The following circumstances acknowledged by the evidence duly adopted and examined by the court (i.e., the Defendant and the Vice Minister of Business in charge of I (hereinafter “Defendant, etc.”) planned to conduct a business (hereinafter “the instant business”) using I’s domestic professional fund purchase at around June 201 to deliver it to communications agencies, etc. Around June 201, the Defendant, etc. (i.e., the Defendant, etc., planned to enter into a contract for supply of goods between K and K on August 31, 201 (hereinafter “the instant business”) by using K in its distribution stage to have their own money in the name of its own proceeds, and (ii) the Defendant, etc. did not directly control the Defendant’s business and supply of goods in the name of its spouse by using the 3rd company’s own funds, such as the 3rd company’s management and use of evidence, and (iii) the Defendant did not directly control the Defendant’s business and the 1st company’s management and use of the 3rd company’s funds.

Therefore, we cannot accept the above argument of the defendant and defense counsel.

2. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Punishment of Tax Evaders;

A. Summary of the assertion

On December 2, 2011, the Defendant did not have received notice from H that I’s head office will suspend the distribution business of the mobile phone amount, and the Defendant knew that the transaction between the victimized company and K was false transaction. As such, the Defendant did not have any intent to commit fraud with respect to the transaction corresponding to each date and amount listed in the separate crime list (1) Nos. 1 through 12 (hereinafter “instant transaction”), and did not know that the transaction was false transaction regarding the tax invoice issued and received in the name of the victimized company until September 2012 and the list of the total tax accounts submitted to the Government by the victimized company. As such, the Defendant did not support the liability for the crime of violating the Punishment of Tax Evaders Act as to each of the aforementioned parts.

B. Determination

이 법원이 적법하게 채택·조사한 증거들에 의하여 인정되는 아래와 같은 각 사정들, 즉 ① 피고인은 위 1.항 기재와 같이 H과 함께 이 사건 사업을 계획하고 진행하여 왔는데, 피고인 등은 판시 업무상횡령의 점과 같이 피해회사로부터 지급받은 구매자금 합계 2억 7,940만 원 중 9,500만 원을 각자 개인적인 용도에 임의로 사용하였음에도 피해회사에게 그 사실을 숨기고 피해회사가 지급한 구매자금 상당액에 이윤 명목의 금액까지 더하여 308,030,850원을 돌려주었는바(2016고합1114 증거기록 3권 849쪽), 위 횡령금 상당액을 마련하여 메꾸지 못하는 경우 피고인 등이 이 사건 사업을 계속 진행하여 당초 계획했던 것처럼 정상적으로 수익을 얻는 것은 어려웠을 것으로 보이는 점, (2) H은 그 후 2012. 1. 4.자 거래부터 피해회사 측에 "일이 제대로 되고 있다"는 식으로 이야기를 하면서 기존에 받은 구매자금에 이윤을 붙여서 돌려주었던 점(증인 H에 대한 2017. 4. 11.자 증인신문 녹취서 9쪽), ③ 그러나 피고인 등의 판시 업무상횡령 범행이 있은 후 I 측의 프로모션 진행 중단 지시 등을 이유로 이 사건 거래를 비롯한 별지 범죄일람표(1) 기재 각 일자 및 금액에 해당하는 이 사건 사업 관련 실물 거래가 한 건도 이루어지지 않은 점(증인 H에 대한 2017. 4. 11.자 증인신문 녹취서 27쪽), ④ 피해회사가 지급한 구매자금은 기존에 횡령·편취한 구매자금을 순차적으로 이른바 '돌려막기' 식으로 수습하는 용도로 사용되었고, 피고인 등은 피해회사가 지급한 별지 범죄일람표(1) 기재 각 금액 중 위와 같이 돌려막기를 하고 남은 19억 원 가량을 액세서리 구매 대금 등 이 사건 사업 추진을 위하여 사용하지 않고 각자 나누어 가졌는바(2016고합1114 증거기록 3권 1164쪽), 판시 업무상횡령 범행 이후 피고인 등에게 이 사건 사업을 정상적으로 진행하여 수익을 얻고자 하는 의사가 없었던 것으로 보이는 점, ⑤ H은 이 법정에서 피고인에게 이 사건 사업과 관련한 모든 진행상황을 있는 그대로 말하였고, 항상 피고인과 함께 논의하며 진행하였다고 진술한 점(증인 H에 대한 2017. 4. 11.자 증인신문 녹취서 10쪽), ⑥ H은 당초 수사기관에서 피고인이 실제 거래가 없었다는 점을 알지 못하였다는 취지로 진술하였다가 그 후 입장을 바꾸어 피고인도 모든 것을 다 알고 있었다는 취지로 진술을 변경하였는데, H은 위와 같은 진술을 변경하게 된 경위에 대하여 당초 이 사건과 관련하여 문제가 되자 피고인이 자신에게 "내가 살아 있어야 시간을 끌어서 변제하든지 해서 일을 해결할 수 있으니, 네가 다 뒤집어쓰는 걸로 하자, 나는 2012. 12.경 강남서가 B에 세무조사가 들어올 때 알게 된 것으로 하자"고 하여 처음에는 피고인의 말에 따랐으나, B 등의 직원들과 대책회의를 할 때 피고인이 오히려 자신을 공격하고, 자신 혼자 한 일이라는 내용의 확인서를 작성해달라고 하는 등 점점 책임을 떠넘기자 세무조사도 받는 상황에서 매우 겁이 나 피고인의 책임을 비롯한 모든 사실을 밝히게 되었다고 진술하였는바(위 증거기록 1권 298-299쪽), 위 진술 변경 경위에 합리성이 있는 것으로 보이는 점, ⑦ 피고인은 수사기관에서 당초 2011. 11.에서 12.경 세무서로부터 허위가공거래에 대하여 소명을 하라는 연락을 받아 세무서 담당자를 만나서 설명을 들으며 이 사건 사업에 문제가 있다는 사실을 알게 되었다고 진술하다가(위 증거 기록 1권 250, 251쪽) 사법경찰관이 피고인이 2012. 9. 14. H에게 보낸 위 진술과 배치되는 내용의 이메일을 제시하며 추궁하자 위 이메일의 내용에 맞추어 2012. 9.경부터 이 사건 사업의 문제를 알았다는 취지로 진술을 변경한 점(위 증거기록 1권 264쪽), ⑧ 피고인은 2012. 5. 16., 2012. 8. 27. 수신자가 피해회사로 되어 있는 I 명의의 상품 발주 의뢰 공문을 첨부하여 '첨부된 파일을 보고 작업해 달라'는 내용의 이메일을, 2012. 7. 2. 수신자가 피해회사로 되어 있는 K 명의의 2012년 상반기 아웃소싱 대행수수료 지급요청 공문을 첨부하여 '해당 양식을 출력하여 날인하여 저에게 전달하여 달라'는 내용의 이메일을 H에게 각 발송하기도 한바(위 증거 기록 1권 150, 151, 158, 159쪽), 피고인이 I의 직원인 H에게 위와 같은 이매일을 보낸 것은 이 사건 사업에 관하여 피해 회사의 자금운용업무 수행자에 불과한 피고인의 지위에 비추어 정상적이지 않은 행위로서 이는 피고인이 H과 공모하여 허위 거래의 외관을 만들며 이 사건 사기범행을 적극적으로 추진하였다고 볼 수 있는 정황에 해당하는 점, ① 피고인은 피해회사가 K에게 지급한 물품대금 중 일부를 H의 배우자인 J 명의의 금융계좌로 이체한 뒤 위 계좌의 직불카드를 이용하여 피해회사가 별지 범죄일람표(1) 1항 기재 물품대금을 지급한 바로 당일인 2012. 1. 4.부터 2012. 11. 8.까지 합계 4억 3,500만 원을 인출하여 개인적으로 사용해 이익을 취하였는바, 이에 비추어 피고인에게 2012. 1. 4.부터 피해회사의 돈을 편취할 의사가 있었던 것으로 보이는 점(위 증거기록 1권 324, 325쪽, 3권 660-668쪽), 1① 설령 H의 진술처럼 피고인 등등이 물품대금 중 일부로 기존 손실금액을 돌려막을 생각을 하면서도 이 사건 사업이 실제로 추진될 수 있음을 믿었다고 가정하더라도 피해회사에 대하여 물품대금 중 일부를 이른바 '돌려막기' 방법으로 사용할 것을 사실대로 말하지 않은 이상 피고인 등에게 사기죄가 성립함에 아무런 지장이 없는 점 등에 비추어 보면, 피고인은 H과 공모하여 별지 범죄일람표(1) 기재와 같이 피해회사를 기망하여 재물을 편취한 사실 및 재화 또는 용역의 공급이 없다는 점을 알면서도 별지 범죄일람표(2), 범죄일람표(3), 범죄일람표

(4) As described above, the above assertion by the Defendant and the defense counsel cannot be accepted, since the issuance and receipt of false tax invoices and the submission of false aggregate tax invoices to the Government can be recognized.

Judgment on Defendant B and Defense Counsel’s argument

1. Summary of the assertion

Since the violation of the Punishment of Tax Evaders Act due to the receipt and issuance of false tax invoices on the same transaction and the violation of the Punishment of Tax Evaders Act due to the submission of the false aggregate tax invoices are in the relationship of the legal landscape agreement, only the violation of the Punishment of Tax Evaders Act due to

2. Determination

Legal concurrence refers to a case where a single act appears to be an external constituent element of several crimes, but actually constitutes only one crime. Whether a single crime or several crimes are actually established shall be determined by considering the evaluation of constituent elements and the legal interests protected by the law (see Supreme Court Decision 2000Do5318, Mar. 27, 2001).

In light of the text of Article 10(3) of the Punishment of Tax Evaders Act, the legislative purport of the above Act, and the legislative structure of the above Act, the violation of Article 10(3)2 of the Punishment of Tax Evaders Act due to the receipt and issuance of a false tax invoice and the submission of a false list of total tax invoices on the same transaction may be established separately from each other, as well as the date, time, place, counterpart, object, and means of the same transaction. Thus, each violation of Article 10(3)4 of the Punishment of Tax Evaders Act cannot be deemed as having a legal concurrence relationship, and it shall be deemed as a substantive concurrent crime whose legal interest and grounds for punishment are different. Accordingly, the assertion by the defendant and the defense counsel shall not

Reasons for sentencing

1. Defendant A

(a) Scope of applicable sentences under Acts: Imprisonment for two years and six months to twenty-two years; and

(b) Scope of recommendations based on the sentencing criteria;

1) Crimes of occupational embezzlement

[Determination of Punishment] Type 1 (100 million won)

[Scope of Recommendation] Imprisonment from April to April (Basic Area)

2) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[Determination of Punishment] General Fraud 4 type (at least five billion won, but less than 30 billion won)

[Special Mitigation Measures] In a case where punishment is not imposed or damage is recovered from a considerable part

[Special Aggravation] Where a crime was committed against an unspecified or large number of unspecified victims or repeatedly during a considerable period of time.

[Scope of Recommendation] 5 years to 8 years (Basic Area)

3) Crimes of forging private documents

[Determination of Punishment] Type 1 of the Act on the Forgery, Alteration, etc. of Private Documents (Counterfeit, Alteration, etc. of Private Documents)

[Scope of Recommendation] Six months to two years (Basic Area)

4) Violation of each Punishment of Tax Evaders Act

[Determination of Punishment] Type 3 (not less than 5 billion won) such as the receipt of a false tax invoice

[Special Mitigation Measures] Where there is no purpose of tax evasion or any result of tax evasion has not occurred;

[Scope of Recommendation] Imprisonment between 8 months to 1 year and 6 months (Mitigation)

5) Five to nine years of imprisonment with prison labor for a multiple crime processing standards (three or more multiple crimes, the lower limit is five years of imprisonment with prison labor, which is the lower limit of the sentencing range for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), and the upper limit is eight years of imprisonment with prison labor, which is the upper limit of the sentencing range for the crime of forging private documents (i.e., one year), 1/2 of two years, which is the upper limit of the sentencing range for the crime of forging private documents (i.e., one year), and 1/3 of June, which is the upper limit of the recommended sentencing range for each crime of violating the Punishment of Tax Evaders Act

(d) Determination of sentence: Four years of imprisonment; and

After committing the crime of occupational embezzlement with H, the Defendant committed the crime of fraud against the victimized company repeatedly in order to raise the funds for repayment of the amount of damage, and even if the outstanding amount has been raised in the course of managing the so-called ‘discipation of purchase funds', the Defendant did not stop the crime, thereby saving the crime of fraud again, and the amount acquired by the Defendant did not reach approximately KRW 1.1 billion, and the outstanding amount is up to KRW 1.9 billion, in addition to the money borrowed through the 'discipation' process of the crime, the crime of violation of each of the Punishment of Tax Evaders Act committed in the course of the above crime is likely to disturb the national tax collection order and undermine the sound commercial order, and there is a great need to additionally commit the crime of this case in light of the fact that the total sum of supply values on the tax invoices and the total sum of tax invoices submitted by the Defendant by falsity issued by falsity is more than 30 billion won, and that the Defendant committed the crime of this case in the name of compensating the damage of the victimized company.

However, the defendant recognizes part of the crime of this case and reflects the depth, the defendant does not have any particular criminal record, the defendant does not commit each crime of violation of the Punishment of Tax Evaders Act for the purpose of evading tax, and the defendant compensates part of the damaged company's damage, and other sentencing conditions specified in the arguments of this case, such as the defendant's age, character and conduct, environment, motive for the crime and circumstances after the crime, shall be determined as ordered by taking into account all of the sentencing conditions specified in the arguments

2. Defendant B

(a) Scope of applicable sentences under law: Fines of 50,000 to KRW 9,046,702,857;

(b) Scope of recommendations based on the sentencing criteria: The sentencing criteria shall not apply to fines.

C. Determination of sentence: The crime of violation of the Punishment of Tax Evaders Act in this case is one that disturbs the national tax collection order and damages the tax justice, and the total supply value on the tax invoice and the list of the total tax invoices falsely submitted by A is not less than 30 billion won. However, the defendant's criminal liability is a crime of violation of the Punishment of Tax Evaders Act committed by A while committing the crime of occupational embezzlement and fraud against the defendant, and it is difficult to view that the defendant was seriously damaged by the above embezzlement and the crime of violation of the Punishment of Tax Evaders Act, such as occupational embezzlement and fraud, and the crime of violation of the Punishment of Tax Evaders Act. The defendant was not able to obtain any economic benefits due to the violation of the Punishment of Tax Evaders Act, taking into account all the sentencing conditions indicated in the argument of this case, such as the fact that the representative director, etc. of the defendant at the time of the crime of this case was known or known to him.

Judges Shin Sung-sung

Judges Kim Gin-ho

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.