Delivery, etc. of letters)

C. Attorney C.

【Criminal Power】

On August 28, 2015, the Defendant was sentenced to a two-year suspended sentence of imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) in the Seoul Eastern District Court, which was sentenced to a three-year suspended sentence on September 5, 2015. On August 25, 2016, the Defendant was sentenced to a four-year suspended sentence of imprisonment for a three-year period at the Seoul Southern District Court, which was sentenced to a three-year suspended sentence on March 31, 2017.

【Criminal Facts】

1. Basic factual basis

On January 14, 201, the Defendant entered into a contract for the acquisition of convertible bonds with an industrial bank in the name of D on January 14, 201, and received KRW 4 billion from the industrial bank to the account in the name of D as the fund for the acquisition of convertible bonds. The above funds were used only for the purpose of the entrusted operation of the lifelong educational institution affiliated with the E University and received an investment under the agreement to use the funds from the person in charge of the industrial bank every time it is used.

However, for the purpose of using the above KRW 4 billion for the business fund of the FF corporation with which the Defendant is a major shareholder, the Defendant was punished as a crime of fraud, such as a statement in the column of “criminal records”, where the Defendant received 4 billion won from the Industrial Bank even if he did not have any intent or ability to operate the business in accordance with the terms of the agreement even if he received the investment from the Industrial Bank, and the Defendant was punished as a crime of fraud, as stated in the column of “criminal records”.

2. Specific criminal facts;

On January 3, 2011, the Defendant: (a) issued a false electronic tax invoice of KRW 1,090,90,090 from H, as if he was supplied with services for remodeling works, even though he did not receive any services for remodeling works from H; (b) from that time, the Defendant was issued a false electronic tax invoice of KRW 3,363,636,361 in total in the same way four times as indicated in the separate crime list by March 14, 201; and (c) issued four copies of the false electronic tax invoice of KRW 3,363,63,636,361 in total, without supplying goods or services for profit-making purposes. Accordingly, the Defendant was issued a false tax invoice of KRW 3,363,636,361 in total, without supplying goods or services.

Summary of Evidence

1. Partial statement of the defendant;

1. Examination protocol of the accused by prosecution;

1. Written accusation, electronic tax invoice, each written judgment (Seoul Southern District Court 2016No1650, 2015Kadan5166, Seoul Southern District Court 2015Kadan5166, 2015Kahap89), management entrustment contract, convertible bond acceptance contract, artificial engineering construction contract, and e-mail (permission to withdraw an industrial bank);

1. Previous convictions: Criminal records, etc., each written judgment (Seoul Southern District Court 2016No1650, Seoul Southern District Court 2015 Godan5166, Seoul Southern District Court 2015 Godan5166, Seoul Eastern District Court 2015 Gohap89), investigation report (Attachment of summary information of related cases);

Application of Statutes

1. Article applicable to criminal facts;

Article 8-2 (1) 2 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 10 (3) 1 of the Punishment of Tax Evaders Act (generality)

1. Concurrent crimes and exemption from punishment;

Article 37 (latter part) and Article 39 (1) of the Criminal Act [this case shall be determined in consideration of equity in the case where a judgment is rendered together with the crimes listed on the criminal records of which judgment has become final and conclusive. The defendant was sentenced to a 2-year suspended sentence for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Embezzlement) with respect to the act of withdrawing borrowed money from an industrial bank kept in the name D and using it for operating funds of the F stock company, and the suspended sentence has become final and conclusive after being sentenced to a 3-year suspended sentence for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Embezzlement). This case does not appear to have been sentenced for the purpose of tax evasion, but it is hard to find that the defendant was sentenced to a 4-year suspended sentence of imprisonment with prison labor for a more than the above 4-year suspended sentence, in view of the circumstances where the defendant did not have been sentenced to a fine for the crime in this case, even if he did not have been sentenced separately prior to the judgment on the crime in this case.

1. Summary of the assertion

It is recognized that the Defendant issued a false electronic tax invoice of an amount equivalent to KRW 3,363,636,361 in total of the supply value H. However, the receipt of the false tax invoice was only for the purpose of withdrawing the amount equivalent to KRW 3.7 billion out of KRW 4 billion of the subscription fund for convertible bonds kept in the industrial bank account in the name of D, and was not for the purpose of refunding the input tax deduction or the amount of value-added tax, and thus the Defendant did not have any profit-making purpose

2. Determination

"Profit-making purpose" under Article 8-2 (1) of the Specific Crimes Aggravated Punishment Act refers to the purpose of obtaining wide economic benefits. The purpose of this is to acquire economic benefits without supplying or being supplied goods or services as a means of crime for the purpose of obtaining unjust profits, and also to obtain economic benefits by issuing or issuing a tax invoice under the Value-Added Tax Act (see, e.g., Supreme Court Decision 2015Do146, May 28, 2015).

As recognized by the Defendant himself, the Defendant borrowed KRW 4 billion from the Industrial Bank only for the purpose of the entrusted operation business of the E-university lifelong educational institution, and borrowed KRW 3.7 billion through the issuance of convertible bonds. Of them, the Defendant issued a false electronic tax invoice 4 as if he performed interior work and facility construction work on the above entrusted operation business, and actually collected the above money and used it as a fund for the operation of the F&A. According to the crime, the Defendant intended to gain profits by withdrawing the amount of KRW 3.7 billion from the said money, namely, to obtain a false electronic tax invoice i.e., to obtain profits by withdrawing the amount of KRW 3.7 billion. In light of the above legal principles, it is reasonable to view that the Defendant had the purpose of profit-making. The Defendant and the defense counsel’s assertion is not acceptable.

Judges Gin-type money

Judges Shin Jae-ho