조세범처벌법위반
The judgment of the court below is reversed.
Defendant shall be punished by a fine of five million won.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. In fact, the Defendant, as the head of the laboratory affiliated with the OM Technical Research Institute, was dispatched to B Co., Ltd. (hereinafter “instant company”), and was engaged in research and development business, and did not have worked as a management director. Therefore, the Defendant did not have been involved in the receipt of the tax invoice of the instant company.
Nevertheless, the court below erred by misunderstanding the facts charged and adversely affecting the conclusion of the judgment.
B. The sentence of the lower court that is unfair in sentencing (an amount of five million won) is too unreasonable.
2. Determination
A. Article 20 of the Punishment of Tax Evaders Act provides that “Any person who commits an offense under Article 10 of the Punishment of Tax Evaders Act shall not be subject to the provision on aggravation of restriction on concurrent fines under Article 38(1)2 of the Criminal Act, prior to the grounds for appeal ex officio.”
“.......”
The meaning of this is that the main text of Article 38(1)2 of the Criminal Act does not apply to “an aggravated sentence by up to 1/2 of the maximum amount of fines prescribed for the most severe crime” when a person is punished by a fine at the same time for a number of offenses for which judgment has not become final and conclusive.”
Therefore, where a fine is imposed at the same time on a crime of violation of the Punishment of Tax Evaders Act due to each of the offenses prescribed in Article 10 of the Punishment of Tax Evaders Act, a fine shall be imposed for each of the offenses, separately, and the amount of the fine shall be imposed (see, e.g., Supreme Court Decisions 94Do952, May 31, 1996; 2013Do1235, Apr. 11, 2013). The lower court imposed a fine on each of the offenses, but Article 38(1)2 of the Criminal Act on the grounds that the offense of violation of Article 10(3)1 of the Punishment of Tax Evaders Act was committed at the same time on the grounds that each of the offenses was concurrent offenses among the offenses.