[조세범처벌법위반][공2009하,2061]
[1] In a case where a prosecutor has conducted a non-prosecution disposition on the charge of violating the Punishment of Tax Evaders Act upon accusation by a tax official, etc. but subsequently files a new accusation against a tax official, etc. (negative)
[2] The meaning of "justifiable cause" under Article 10 of the Punishment of Tax Evaders Act and the method of determining the "justifiable cause"
[1] A public prosecutor’s disposition of non-prosecution has no same effect as final and conclusive in the final and conclusive judgment, and once the statute of limitations expires, a public prosecution may be instituted at any time prior to the expiration of the period of prescription. Thus, even if a tax official, etc. has once rendered a disposition of non-prosecution with respect to the violation of the Punishment of Tax Evaders Act, which can be prosecuted only upon accusation by the tax official, etc., the previous accusation by the tax official, etc. remains valid
[2] “Justifiable reason” under Article 10 of the Punishment of Tax Evaders Act includes not only reasons for taxpayers to pay taxes in mind, such as natural disasters, fire, war, or other disasters, or theft, but also reasons for taxpayers having difficulty in paying taxes due to their economic circumstances, such as the illness of taxpayers or their family members living together, declaration of bankruptcy of taxpayers, commencement of auction of property of taxpayers. Furthermore, in determining the existence of justifiable reason, the determination shall be made on an individual basis by taking into account the details of the delinquency, the amount in arrears, and the period of arrears, as well as the details of the relevant punishment, considering the legislative intent of the punishment.
[1] Article 6 of the Punishment of Tax Evaders Act, Articles 246, 247, and 249 of the Criminal Procedure Act / [2] Article 10 of the Punishment of Tax Evaders Act
[2] Supreme Court Decision 2000Do2858 decided Oct. 27, 2000 (Gong2000Ha, 2481) Supreme Court Decision 2008Do7318 decided Oct. 9, 2008
Defendant
Defendant
Attorney Lee Byung-il
Seoul Central District Court Decision 2009No187 Decided June 26, 2009
The appeal is dismissed.
We examine the grounds of appeal.
1. On the first ground for appeal
A public prosecutor’s disposition of non-prosecution has no same effect as final and conclusive judgment, and once the statute of limitations expires, a public prosecution may be instituted at any time prior to the completion of the statute of limitations. Thus, even if a tax official, etc. has once rendered a non-prosecution disposition with respect to the violation of the Punishment of Tax Evaders Act, which can be prosecuted only upon accusation by the tax official, etc., the accusation filed by the tax official, etc. is still valid, and therefore,
According to the reasoning of the judgment below and the records, the head of Seocho District Tax Office accused the Defendant’s arrears in the year 2002 and 2003 to an investigation agency, but was not a disposition of non-prosecution, and thereafter the head of Seocho District Tax Office again accused the Defendant’s arrears in the year 2004, the prosecutor can find out the fact that the amount of arrears in the national tax in the year 2002 and 2003, which was the previous non-prosecution disposition, was also the part of the disposition of arrears in the national tax in the year 2004. In light of the above legal principles, the accusation on the arrears in the national tax in the year 202 and 2003 among the facts charged in the instant case, is still valid after the prosecutor’s non-prosecution disposition is made, and therefore
In the same purport, the court below is just in holding that the prosecution against this part of the facts charged is lawful, and there is no error in the misapprehension of legal principles as alleged.
2. On the second ground for appeal
The term "justifiable cause" under Article 10 of the Punishment of Tax Evaders Act means a cause or event that a taxpayer cannot pay taxes according to his/her mind, such as natural disaster, fire, war, or other disaster, or theft. It includes not only the causes that a taxpayer or his/her family member's illness, declaration of bankruptcy, and commencement of auction of the taxpayer's property, but also the causes for which it is practically difficult to pay taxes due to the taxpayer's economic reasons, such as the taxpayer's or his/her family member's illness, declaration of bankruptcy, and commencement of auction of the taxpayer's property. Furthermore, in determining whether a justifiable reason exists, the determination shall be made on an individual basis of specific matters by taking into account the circumstances of the delinquency, arrears, and period, etc. in full consideration of the legislative intent of the punishment (see Supreme Court Decisions 200Do2858, Oct. 27, 200; 208Do7
The court below found the defendant guilty of the facts charged in this case on the ground that there was no justifiable reason for the defendant's failure to pay national taxes. The judgment of the court below is acceptable in light of the above legal principles and records, and there is no violation of the rules of evidence as alleged.
3. Conclusion
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yang Sung-tae (Presiding Justice)