However, if the investigative agency returns separate evidence to the persons subject to seizure and seize it again after voluntary production, the causal relationship between the first procedural violation that has seized the evidence and the final collection of evidence may be deemed to have been severed. However, in the course of submitting it again after return, the seizure may substantially be conducted under the pretext of voluntary production in accordance with the superior position of the investigative agency. As such, the prosecutor bears the burden of proving the Voluntary production to the extent that it may exclude a reasonable doubt, and if it cannot be deemed that it has been voluntarily submitted,

1. As to the Prosecutor’s Grounds of Appeal

A. As to the part on the property in breach of trust from Nonindicted 1

The court below reversed the judgment of the first instance court convicting Defendant 1 of this part of the facts charged on the following grounds: (a) based on the statement of Nonindicted 1, Nonindicted 2, and Nonindicted 3, etc. on this part of the facts charged, it is difficult to recognize that Defendant 1 demanded money or received money from ○○○○○ or Nonindicted 1 in return for the supply thereof directly or indirectly; and (b) it is difficult for Defendant 2, and Defendant 3 to evaluate the acquisition of property or property gains as the same as that of Defendant 1’s receipt; and (c) it is difficult for Defendant 2, and Defendant 3 to recognize that Defendant 1 received property or property gains from ○○○○○ or Nonindicted 1 in return for the supply thereof; and (d) based on the facts that Defendant 1 received KRW 353,358,694 in sum on 35 occasions from May 7, 2004 to June 4, 206, the court below found Defendant 2 not guilty of this part of the facts charged.

Examining the reasoning of the judgment below in light of the records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the status relationship and conspiracy relation

B. As to the part on taking property in breach of trust from Defendant 3

The court below affirmed the judgment of the court of first instance that acquitted Defendant 1 and Defendant 2 of this part of the charges on the ground that the money that Defendant 3 paid to Defendant 2 from April 20, 2004 to May 23, 2006, as shown in the annexed list 3 of the court below's judgment, was an investment profit in the funds invested by Defendant 2 to Defendant 3; there is no evidence to deem that the money that Defendant 3 paid to Defendant 2 to Defendant 3 was delivered or actually reverted to Defendant 1; and it cannot be deemed that Defendant 1's business cannot be seen as Defendant 1's business, in full view of the circumstances in its reasoning, such as the fact that Defendant 1 and Defendant 2 received the above money in return for illegal solicitation from Defendant 3 was not proven to be beyond a reasonable doubt.

Examining the reasoning of the judgment below in light of the records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors of violation of the principle of free evaluation of evidence against logical

C. As to the violation of the Processing of Livestock Products Act

The lower court affirmed the first instance judgment convicting Defendant 1 and Defendant 2 of this part of the charges on the ground that the evidence submitted by the prosecutor alone does not necessarily lead to the conclusion that the instant U.S. beef was likely to have been affected by Mad Cow Disease, and that the instant LA was packed prior to August 30, 2003, and the circulation period was expired on June 20, 2004, and Defendant 1 and Defendant 2 sold the instant LA by newly setting up and attaching a boiler with false circulation period.

Examining the reasoning of the judgment below in light of the records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors of violation of the principle of free evaluation of evidence against logical

D. As to the part on fraud

The lower court affirmed the first instance judgment that acquitted Defendant 1 and Defendant 2 of this part of the facts charged, inasmuch as the lower court affirmed the first instance judgment that acquitted the said Defendants of the violation of the Processing of Livestock Products Act, on the premise that the facts charged against Defendant 1 and Defendant 2 were guilty.

Examining the reasoning of the judgment below in light of the records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors of violation of the principle of free evaluation of evidence against logical

2. As to Defendant 1’s ground of appeal

A. As to the assertion on the exclusionary rule of illegally collected evidence

(1) A prosecutor or a senior judicial police officer, when necessary for a criminal investigation, may conduct a search and seizure by a warrant issued by a judge in cases where there is a circumstance to suspect that a criminal suspect committed an offense. However, a search and seizure may be conducted only for evidence relevant to the suspected criminal facts based on which the warrant was issued. As such, in cases where a separate evidence irrelevant to the suspected criminal facts based on which the warrant was issued is seized, this cannot be used as evidence of conviction in principle.

However, in a case where an investigative agency returns the separate evidence to the person against whom the evidence was seized, and seizes it again after voluntary production, the causal relationship between the initial procedural violation that has seized the evidence and the final evidence collection may be deemed to have been severed. However, in the course of submitting it again after return, the seizure may substantially be conducted under the pretext of voluntary production in accordance with the superior position of the investigative agency. As such, the prosecutor bears the burden of proving the voluntariness of submission to the extent that it can be ruled out a reasonable doubt, and where it cannot be deemed that the evidence is voluntarily submitted,

(2) With respect to Defendant 1’s tax evasion, the lower court: (a) the investigator of the Seoul Southern District Prosecutor’s Office seizes the USB in Gangnam-gu Seoul Metropolitan Government ( Address omitted); and (b) the prosecutor in charge of the investigation conducted on May 1, 2009 on the goods seized from Nonindicted 4, which were irrelevant to the suspected facts stated in the search and seizure warrant (hereinafter “instant warrant”); (c) returned the said USB as well; (d) the Seoul District Tax Office’s tax official who was present at the seat of Nonindicted 5 on the same day at the request of Nonindicted 6 for cooperation in the tax investigation of Defendant 1; and (e) determined that the said evidence was not admissible as evidence for the instant tax evasion contract, which was lawfully collected from Nonindicted 2, 209, based on the evidence that was found to have been seized by Nonindicted 6’s substantive operation of △△△△△△, Co., Ltd., Ltd.; and (e) determined that the said evidence was not admissible as evidence for the instant tax evasion contract.

(3) However, according to the reasoning of the lower judgment and the record, ① the investigator of the Seoul Southern District Prosecutors’ Office seized the foregoing warrant from Nonindicted 4, “PC 1,” “documents related to △△△△△△,” and “one USB in storage of computerized data, such as purchase and sale, etc.,” and the above seized evidence is irrelevant to the facts stated in the warrant, and ② the investigative agency did not deliver a detailed list of seizure to the party subject to seizure in search and seizure of the above opening office, and did not prepare a seizure protocol regarding the evidence seized at the above opening office; ③ the prosecutor did not take measures such as returning the evidence seized at the above opening office to the person subject to seizure; ③ Nonindicted 5, who was the birth of Nonindicted 1, as the prosecutor’s office, did not receive the list of articles subject to seizure and its consent at the time of the request of the prosecutor, and ④ Nonindicted 6, who did not receive the above list of articles subject to seizure and its consent at the time of the request of the prosecutor at the time of the above opening office.”

In light of the aforementioned legal principles, the developments leading up to the seizure of the above USB, the period during which the investigative agency held the said USB, the objective situation and circumstance at the time when Nonindicted 5 submitted the receipt of the seized article and the written consent, and the contents of the “list of temporary storage documents, etc.” prepared by Nonindicted 5, etc., which can be known by such factual basis, are doubtful as to whether Nonindicted 5 was returned the said USB from the investigative agency and again submitted it to the tax official. In addition, even if Nonindicted 5 submitted the said USB to the tax official, it cannot be said that the voluntariness of the submission was proven beyond a reasonable doubt. Thus, it is difficult to view that the causal link between the procedural violation of which the said USB was seized, which is an evidence irrelevant to the suspected criminal facts stated in the instant warrant, and the final evidence collection. Accordingly, the said USB and the business performance table stored therein are inadmissible.

Nevertheless, the lower court recognized the admissibility of the business performance table on the premise that Nonindicted 5’s return of the above USB and re-written submission by Nonindicted 5 at will, thereby cutting down the causal link with the initial procedural violation. In so determining, it erred by misapprehending the legal doctrine on the exclusion of illegally obtained evidence or the voluntary submission, thereby adversely affecting the conclusion of the judgment on the admissibility of evidence.

(4) However, Defendant 1, Nonindicted 7, and Nonindicted 8 notified of the right to refuse to make statements or the right to refuse to testify in the open court (excluding some statements made by which illegally collected evidence, such as business performance table), the prosecutor’s statement to Nonindicted 6, and the Seoul regional tax office’s remaining evidence, which were collected regardless of business performance table, such as △△ Livestock Cooperative’s account statement, monthly house account statement, etc., which were voluntarily submitted by the Seoul regional tax office in the course of tax investigation, or whose business performance table and causal relationship are cut off, can be sufficiently recognized. Accordingly, the lower court’s above error cannot be deemed to have affected the conclusion of the judgment.

B. As to the assertion on the actual transaction structure of the instant case

The court below found that the △△ Livestock Cooperative Distribution Business Association, which is in fact operated by Defendant 1, concluded a contract with the meat processing factory of △△ Livestock Cooperative, which is a branch of △△ Livestock Cooperative, to entrust the processing of livestock products, and in substance, the △△ Livestock Cooperative Distribution Business Association purchased the unprocessed meat from △△ Livestock Cooperative, and supplied it to the Korea Gaz and the new Gaz and the new Gaz Co., Ltd.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s aforementioned fact-finding and determination are justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation

C. As to the assertion on the criminal intent of “Fraud or other unlawful act” and tax evasion

In the crime of tax evasion under Article 9(1) of the former Punishment of Tax Evaders Act (wholly amended by Act No. 919, Jan. 1, 2010); “Fraud or other unlawful act” means an act which enables the tax evasion and which is considered to be illegitimate under social norms, i.e., a deceptive scheme which makes the imposition and collection of taxes impossible or considerably difficult. Therefore, it does not constitute mere failure to file a tax return under tax law or making a false tax return without accompanying other acts, but it does not constitute the mere failure to file a tax return or making a false tax return; however, it may be recognized as making the imposition and collection of tax impossible or considerably difficult (see, e.g., Supreme Court Decision 2013Do13829, Feb. 21, 2014).

On the other hand, in the crime of tax evasion established by a fraudulent or other unlawful act, the criminal intent is to commit or attempt to commit an unlawful act while recognizing the fact that the person liable for tax payment constituted a fraudulent or other unlawful act and recognizing that such act constituted a result of tax evasion (see Supreme Court Decision 2004Do817, Jun. 29, 2006, etc.).

The lower court determined that it was sufficient to recognize Defendant 1’s evasion of comprehensive income tax by “Fraud or other unlawful act” with the criminal intent of tax evasion, on the ground that Defendant 1 did not report income tax for a long time on the ground that he formed the appearance such as all income accrued in the future of △△ Livestock Cooperative, even though he actually carried out income amounting to KRW 2.5 billion each year, which is an intermediate processing and distribution business entity, as an intermediate processing and distribution business entity separate from △△ Livestock Cooperative.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court’s aforementioned determination is just and acceptable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against the logical and empirical rules, or by misapprehending the legal doctrine on “Fraud or other unlawful act” or criminal intent in the crime

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)