Of the judgment of the court below, the guilty portion against Defendant 3 and each violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax) against Defendant 1, Defendant 2, and Defendant 5 on the Aggravated Punishment, etc. of Specific Crimes (Tax) against Defendant 2, and each violation of the Punishment of Tax Evaders Act against Defendant 2 on the Aggravated Punishment, etc.,

1. Defendant 1

Defendant shall be punished by imprisonment with prison labor for not less than two years and six months and by a fine not exceeding two billion won.

Where the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for three years.

However, the execution of the above imprisonment shall be suspended for three years from the date this judgment becomes final and conclusive.

2. Defendant 2

A defendant shall be punished by imprisonment for not more than ten months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

10,000 won shall be additionally collected from the defendant.

Of the facts charged against the accused, the charge of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax) and the Punishment of Tax Evaders

3. Defendant 3

A defendant shall be punished by imprisonment for a term of two years and a fine of one billion won.

Where the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for two years.

However, the execution of the above imprisonment shall be suspended for three years from the date this judgment becomes final and conclusive.

4. Defendant 5 Company

Defendant shall be punished by a fine of 2.7 billion won.

[Dismissal of Appeal]

The appeal by the prosecutor against Defendant 1, Defendant 2, and Defendant 3 against each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the prosecutor against Defendant 4 is dismissed.

A. Defendant 3

1) misunderstanding of facts and misapprehension of legal principles

As long as the Defendant, with the intention to use the subcontract amount as corporate expenses from the beginning, created extra funds as stated in the judgment of the court below in order to observe the provisions on the Framework Act on the Construction Industry related to the subcontract amount (hereinafter “the instant extra funds”), and actually managed and executed the same as the official corporate funds, and made up corporate tax, etc. to the subcontractor, there is no intention to evade tax. The Defendant specifically explained that the instant extra funds have been used as corporate expenses, and the said corporate expenses may be included in deductible expenses under the Corporate Tax Act, but the Defendant’s burden of tax evasion is contrary to the presumption of innocence. Even if the Defendant is partly allowed to include the extra funds in deductible expenses under the Corporate Tax Act among the places of using the instant extra funds, it cannot be readily concluded that the amount of tax evasion by each of the instant tax evasion crimes exceeds 50 million won.

2) The assertion of unreasonable sentencing

The punishment (two years of imprisonment, a fine of 1.6 billion won) imposed on the defendant by the court below is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts

A) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against Defendants 1, 2, 3, and 4

In the final and conclusive judgment (Seoul Central District Court 2004Dahap3699) on Nonindicted Co. 2, who had worked as the representative director of Defendant 5 Co., Ltd. (hereinafter “Defendant 5”), the fact that KRW 4.3 billion out of the instant side funds was used as illegal political funds, illegal street funds, etc. was revealed, and according to the X-cell file (Evidence No. 133) dated July 22, 2002, part of the instant side funds was paid to tax officials. Since it is highly probable that the instant side funds were used for the said purpose, the intention of unlawful acquisition may be inferred as to the whole of the instant side funds.

On the other hand, the details of the use of the foreign capital in this case asserted by the Defendants are abstract, and there is no objective evidence supporting such assertion, and most of them are actually conducting normal accounting of expenditures in the same name with items that can be managed normally, as well as remaining after the budget of the relevant items is not completely executed, so it is not reasonable to the extent that it damages the trend of the intention of unlawful acquisition.

B) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Tax) and violation of the Punishment of Tax Evaders Act against Defendant 1, Defendant 2, and Defendant 5

Defendant 1 was in charge of the management and receipt of the foreign capital of this case through the approval of the corporate tax declaration letter, etc., Defendant 2 performed functional control over the corporate tax evasion crime of this case through the act of raising the foreign capital of this case. Accordingly, Defendant 5, as the employer of Defendant 1 and Defendant 2, is liable for criminal liability under the joint penal provisions.

C) The point of taking property in breach of trust against Defendant 2

The Defendant received money and valuables from Nonindicted 1 who was introduced through Nonindicted 5’s former executive officers through the Defendant’s transfer of the company. Upon Nonindicted 1’s request, Nonindicted 3 Company (hereinafter “Nonindicted 3 Company”) registered and transferred the money and valuables to Nonindicted 5 Company as a cooperative company by Defendant 5, thereby enabling the Defendant to deliver the money and valuables to Defendant 5, and received cash or high-priced gifts from Nonindicted 1 in an confidential manner. Comprehensively taking account of these circumstances, the fact that the Defendant received illegal solicitation from Nonindicted 1 is recognized.

2) Defendant 3) assertion of unreasonable sentencing (Defendant 3)

The sentence imposed by the court below on the defendant is too uneasible and unfair.

2. Determination

A. Judgment ex officio due to changes in indictment

1) We examine the grounds for appeal ex officio prior to the judgment on the grounds for appeal. The prosecutor applied for amendments to the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) against Defendant 3, Defendant 1, and Defendant 2 among the facts charged against the Defendants, and the respective violations of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) against Defendants 1, Defendant 2, and Defendant 5, and this court permitted amendments to the Act and decided on the Aggravated Punishment, etc. of Specific Crimes. This part of the judgment below was no longer maintained. However, even if there are such grounds, it is still meaningful that Defendant 3’s assertion of mistake and misapprehension of legal principles and the prosecutor

2) The above Defendants asserted to the effect that the indictment procedure is invalid in violation of the provisions of the Act, since it is not identical to that of the facts charged prior to the amendment, since it is not recognized that the indictment is completely different from that of the facts charged prior to the amendment, the amendment of indictment should not be permitted. Since there was no legitimate accusation by tax officials as to the facts charged after the amendment.

Since corporate tax takes a business year as a taxable period, one crime of evasion is established each business year (see Supreme Court Decision 87Do84 delivered on December 22, 1987, etc.), and the effect of prosecution and accusation on part of a crime in the relationship of a single crime extends to the whole crime (see Supreme Court Decision 2002Do5411 delivered on January 14, 2005, etc.).

As long as the prosecutor indicted the above Defendants of a crime of evading corporate tax in addition to each of the pertinent taxable years, it is permitted to change the form of the crime through amendments to the indictment. The effect of the accusation made by the director of the Seoul Regional Tax Office on September 29, 2016 on the facts charged prior to the change of this part is to change this part of the facts charged after the change of this part in relation to the crime by each taxable year (only after the change in this part of the facts charged is limited to the change in the form of the crime, and no change exists in the amount of tax evaded for each taxable year). This part of the above Defendants’ assertion is without merit

B. Judgment on the mistake of facts and misapprehension of legal principles by Defendant 3

1) Facts of recognition

According to the evidence duly adopted and examined by the court below and the trial court, the following facts can be acknowledged:

① The Defendant was in office as the representative director of Defendant 5 from October 2004 to March 2009, and was in general in charge of Defendant 5’s management.

② The Defendant directed Nonindicted 4, a director in charge of the purchase of materials teams (former headquarters for the purchase of materials, to raise extra funds by using a subcontract with the subcontractor. Nonindicted 4 instructed Nonindicted 5 to the chief of the material department, Nonindicted 5 to the chief of the material department, Defendant 2, the chief of the material department, and Defendant 2 to the Defendant 4, who was in charge of the purchase of the materials team, respectively.

③ Accordingly, in the process of concluding a subcontract with a subcontractor through bidding, Defendants 2 and 4 selected as the party to the subcontract. Article 31 of the Framework Act on the Construction Industry, Article 34 of the Enforcement Decree of the same Act, and Article 34 of the Enforcement Decree of the same Act, where the subcontract amount is less than 82% of the contract amount, if the subcontract amount is less than 82% of the contract amount, Defendants 2 and 4 entered into the subcontract with the subcontractor at least 82% of the contract amount in lieu of the contract amount, if the initial bid price for construction work ordered by the State, a local government, or a public institution is less than 82% of the contract amount, they entered into the subcontract with the subcontractor in question, on the basis of the contract amount in question in cash, instead of the contract

④ Defendant 2 and Defendant 4, when a sewage-based company bring to cash under the above agreement, received direct transfer of the money without having to keep the transaction records, such as receipts, and entered them in a separate account book for the creation of the extra funds. After reporting to Nonindicted 4, who is the chief management support office through Nonindicted 5, a commercial company, to Defendant 5, the person in charge of the management support headquarters in charge of the fund management affairs of Defendant 5, was delivered to Defendant 1.

⑤ Defendant 1 kept the money received as above in the company’s treasury without entering it in the company’s official book, and received and disbursed it according to the representative director’s instruction. In relation to the management of out-of-the-counter funds so created, Defendant 1 collected a cash custody certificate stating the date, time, amount, etc. of payment from each department using out-of-the-counter funds at each time of payment, and reported the current status and balance of the deposit and payment to the representative director once every two months. Defendant 1 discarded the documents, etc. related to out-of-the-counter funds at that time or destroyed them only for one year.

④ During the process of refunding the difference between the agreed construction cost and the initial bid price from the sewage contractor, Defendant 2 and Defendant 4 deducted a certain amount of fees as determined by Defendant 5 company under the pretext of compensating for the corporate tax, etc. to be additionally borne by the sewage contractor in relation to the return of the said difference. Of the sewage contractor, there was also an enterprise that has delayed the return of the agreed amount for a considerable period of time on the ground of the financial situation, etc., but there was also an enterprise that has a delay in the return due to the demand of Defendant 2 and Defendant 4, and that has refused the return on the ground of the company’s own circumstance and the increase in the construction cost. Since the agreement with the sewage contractor was merely a verbal agreement, and it was in the nature of avoiding the relevant provisions of the Framework Act on the Construction Industry, even if Defendant 2 and Defendant 4 were to delay or refuse the return, it was difficult for Defendant 5 and Defendant 4 to force the sewage contractor to return the agreed amount, other than pressured by taking advantage of Defendant 5’s superior position in the subcontracting relationship.

2) Whether it constitutes fraud or other unlawful act

In the former Punishment of Tax Evaders Act (wholly amended by Act No. 919, Jan. 1, 2010) “Fraud or other unlawful act” refers to an act that enables the evasion of tax, which is recognized as unlawful under social norms, namely, a deceptive scheme that makes the imposition and collection of tax impossible or considerably difficult. Therefore, it does not constitute mere failure to file a report under tax law or making a false report without accompanying other acts, but it does not constitute a mere failure to file a report or making a false report under tax law or making a false report. However, it may be recognized as making it impossible or considerably difficult to impose and collect tax where the circumstances indicate such as intentionally failing to enter income or sales in the account book (see, e.g., Supreme Court Decision 2010Do9871, Jun. 14, 2012). In order for the corporation to evade corporate tax for a specific business year through fraud or other unlawful act (see, e.g., Supreme Court Decision 2010Do9871, Jun. 14, 2015).

According to the above facts of recognition, Defendant 5 did not account for the amount to be returned by the sewage company to Defendant 5, but agreed with the sewage company not to account for the outside so that it can not understand the amount to be returned from the outside, and traded closely by means of receiving it directly in cash, etc. In managing the funds raised by the above methods in a separate account book or record, Defendant 5 prepared a false account book by omitting it in the company’s official account book, and underreporting Defendant 5’s income. Such act constitutes fraud or other unlawful act that significantly makes it difficult to impose and collect taxes because it entails active concealment of income.

3) Whether it is possible to include expenses related to the use of foreign capital in deductible expenses

A) Relevant legal principles

According to the Corporate Tax Act, the items recognized as deductible expenses and the permissible limit thereof are stipulated in cases where a corporation has disbursed expenses due to the necessity of its business operation. Thus, in cases where the amount was used as deductible expenses by means of a false appropriation of expenses or an excessive appropriation, excluding public funds, and then disposed of as deductible expenses the amount equivalent to such amount, even if such amount was used for the whole company's business operation, it cannot be exempted from the liability for the crime of evading tax unless it proves that it is an item that can be recognized as deductible expenses and is within the permissible limit of deductible expenses by specifying its specific purpose (see, e.g., Supreme Court Decisions 2002Do2569, Sep. 24, 2002; 2005Do5772, Jun. 1, 2007).

In cases where a tax authority finds any income omitted in the initial return when it determines necessary expenses corresponding to the total amount of income of a resident in the relevant year, barring special circumstances, such as account books or documentary evidence revealed that the necessary expenses corresponding thereto were separately paid, it shall be deemed that the necessary expenses corresponding to the total amount of income are included in the necessary expenses corresponding to the income amount. In such cases, if a taxpayer who seeks to include necessary expenses or deductible expenses in the calculation of the total amount of income receives such deduction on the ground that he/she omitted a report on the expenses corresponding to the omitted income was omitted, he/she shall assert and prove such omission (see Supreme Court Decision 2010Do13764, Jan. 27, 20

Although it is clear that there is a prosecutor who bears the burden of proving the amount of evaded tax, including gross income and deductible expenses, according to the principle of the burden of proof under the Criminal Procedure Act, since deductible expenses are favorable to the taxpayer, and most of the facts generated therefrom are located in the control area of the taxpayer, and thus, considering that the proof is easy, it is sufficient for the taxpayer to determine the credibility of deductible expenses based on the evidence submitted by the defendant who is the taxpayer, and it is sufficient for the prosecutor to prove that there is no deductible expenses exceeding the recognized amount of deductible expenses.

B) Determination

Examining the following circumstances acknowledged by the court below and the court below’s duly adopted and examined the evidence, in light of the legal principles as seen earlier, even if part of the foreign capital of this case was used for Defendant 5’s business operation, there is insufficient evidence to acknowledge that it was an item that can be acknowledged as losses because most of the foreign capital of this case’s use was not specifically stated by the amount, and it was used for the pertinent taxable year that omitted earnings, and thus, it cannot be included in deductible expenses.

① Although the Defendant asserted that all of the extra funds in this case were used for the company’s expense that can be included in deductible expenses, the Defendant was unable to submit objective evidentiary data other than the confirmation or statement of facts by the executives and employees of the Defendant 5. Even based on the evidence submitted by the Defendant, the use of the extra funds is merely an estimated amount based on abstract factual relations, and it is difficult to divide it by time, item, and amount, and it is difficult to recognize it as deductible expenses for any year and item, and the permissible limit amount cannot be specified.

② Defendant 1, in charge of the custody, management, and receipt and disbursement of the instant out-of-the-counter funds, stated in the prosecutor’s office that “The user of the out-of-the-counter funds was denied most of the deductible expenses. This is because, with documentary evidence, most of the user of the out-of-the-counter funds was used as cash expenses for which normal accounting is difficult. When disbursed with internal funds, all the entertainment expenses are treated as entertainment expenses and the loss is caused.” In the court of the court below, it stated in the purport that “The above stated by the prosecutor’s office as above requires evidence to the tax authorities in accordance with a very strict standard, and there is a strong tendency to regard it as entertainment expenses unless otherwise, and that most of them were used as cash expenses difficult to keep accounts.”

③ The Defendant used internal expenses, such as expenses incurred in receiving orders related to the project for reconstruction and redevelopment, expenses incurred in holding orders related to the project for reconstruction, and expenses incurred in holding orders, all kinds of event expenses of the company, encouragement funds at the construction site, and expenses incurred in conducting competition in and out of the construction site. The Defendant asserts that such use is an item that can be included in deductible expenses, such as entertainment expenses, travel expenses, transportation expenses, welfare expenses, advertisement expenses, etc. However, most of the above use details claimed by the Defendant, even if the use was verified through objective evidence, is not recognized as deductible expenses under the Corporate Tax Act for expenses other than the payment regulations of the company, or even if it is recognized as entertainment expenses, it cannot be recognized as deductible expenses since the Defendant used them in excess of the limit of entertainment expenses recognized under the Corporate Tax Act from 201 to 201

4) Whether the crime of tax evasion is recognized

The crime of tax evasion, which is established by a fraudulent or other unlawful act, is not an intentional crime, and thus does not require the defendant to evade or evade tax, and the crime of tax evasion requires the criminal intent. The crime of tax evasion is committed by the person liable for tax payment, recognizing that his act constitutes a fraudulent or other unlawful act, and recognizing that the act constitutes a fraudulent or other unlawful act, and thereby the result of tax evasion is committed or attempted to commit an unlawful act (see Supreme Court Decision 2004Do817, Jun. 29, 2006, etc.).

The Defendant’s active act of concealing income as seen earlier, thereby omitting the foreign capital of this case from the gross income, and thereby resulting in the evasion of tax on the foreign capital of this case inevitably. Even if part of the foreign capital of this case was used for Defendant 5’s business operation, it may not be included in deductible expenses. Furthermore, as the Defendant’s assertion, even if Defendant 5 compensated for expenses, such as corporate tax, which is additionally borne by sewage companies in relation to the refund for raising the foreign capital of this case, to sewage companies, it is difficult to conclude that the total amount of corporate tax additionally borne by sewage companies is identical to the amount of corporate tax evaded by Defendant 5, due to the difference in the tax rate based on the corporate tax base. Thus, it cannot be recognized that the Defendant did not have any awareness of the reduction of national tax revenue.

Examining these circumstances and the scale and duration of the instant extra loan in light of the aforementioned legal principles, it is deemed that the Defendant sufficiently recognized the fact that the Defendant’s act at the time of committing the instant crime constituted fraud or other wrongful acts and that the occurrence of tax evasion results.

5) Sub-committee

Therefore, the defendant's assertion of mistake and misapprehension of legal principles is without merit.

C. Judgment on the prosecutor's assertion of mistake

1) Determination on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against Defendants 1, 2, 3, and 4

A) Relevant legal principles

In a case where data that could be seen as having been used for a personal purpose is considerably short of the whereabouts or source of the funds, even though the funds kept and managed were withdrawn or used, or where the funds were used for a personal purpose, it may be inferred that the act of using the funds constitutes embezzlement by illegal acquisition intent. However, in a case where the Defendants explained the whereabouts or source of the funds for the reasons that it is difficult to recognize the existence of illegal acquisition intent, and accordingly presented data accordingly, barring such circumstance as where the Defendants used the funds for another purpose, it cannot be concluded that the Defendants embezzled the funds by withdrawing or using the funds for an unlawful acquisition intent (see Supreme Court Decisions 94Do998, Sept. 9, 1994; 201Do549, Jul. 26, 2002; 2005Do497, Sept. 7, 200).

B) The judgment of the court below

The court below acknowledged that the portion revealed by the evidence submitted by the prosecutor that the foreign capital was used for the same illegal purpose as the facts charged is extremely limited to a part of the whole use period and size, and that considerable part of the foreign capital was disbursed for the actual purpose of the company's profit. Thus, according to the principle of the burden of proof, the prosecutor must prove that there are sufficient circumstances to conceal the intent of unlawful acquisition in relation to the individual use of the foreign capital, and simply, it is difficult for the defendants to regard the use of the foreign capital as the whole to have been used by the defendant, or it is difficult for the defendants to find that the use of the foreign capital was difficult or that the defendants did not submit objective evidence, solely on the ground that the defendants did not clarify the specific contents of the use of the foreign capital and submit the objective evidence, it is difficult to presume that the whole foreign capital of this case was withdrawn and used for a purpose unrelated to the company's profit, and further, it is difficult to find the specific use of the foreign capital of this case as the evidence of the prosecutor's specific use of the foreign capital of this case.

(1) On July 14, 2004, Nonindicted Party 2, who had been working as the representative director of the Defendant 5 company from April 198 to October 204, 2000, the head of the Seocho-gu Seoul Central District Court 2004Da369, and Defendant 3 (the case was not prosecuted for the above case) was convicted of the difference between Defendant 5 and Nonindicted Party 2, 4,368,500,000 won for the construction work site of 00,000 won, and 70,000,000 won for the 20,000,000,000 won for the 5,000,000,000 won for the 10,000,000,000 won for the 10,000,000 won for the 205,000,000 won for the 205,000,000 won for the 2,00.

D. However, the Defendants asserted that the remaining KRW 3.3 billion was used for illegal political funds in addition to the embezzlement amount of KRW 1.0 billion against Nonindicted Party 2. At the time, Nonindicted Party 2 also argued the same purport in the trial process. However, other than the above judgment in this case, direct evidence concerning the use of the above KRW 3.3 billion is not submitted, and regarding the use of the above portion in the judgment in the above, it is difficult to conclude that there was no evidence to prove that there was an unlawful use of funds for illegal political funds, reconstruction associations, and real estate brokers for the purpose of their business activities, and it is difficult to conclude that there was an unlawful use of funds for the above portion other than KRW 1.0 billion for the above illegal political funds as stated in the judgment in the judgment of the court below. Furthermore, it is difficult to conclude that there was no evidence to prove that there was an unlawful use of funds for the above 3.4 billion, including the above unlawful use of funds, and there was no evidence to prove that there was no evidence to prove that it was an unlawful use of the above 3.4.7 billion won.

In addition, even if examining the remaining evidence submitted by the prosecutor, it is difficult to find out reliable materials to acknowledge that the foreign capital of this case was used for an illegal purpose, and that there was an intention of unlawful acquisition. Ultimately, the part that can be recognized as being used for an illegal purpose, such as the facts charged, is merely one billion won out of the foreign capital raised around 2002-2003 and used for an illegal purpose.

In full view of various facts and circumstances concerning the size, period, method, method of management, and partial use of the foreign capital of this case, which are revealed by the records of this case, it is difficult to exclude considerable parts of the foreign capital of this case from the possibility of being used for the purpose of using cash expenses, etc., which are insufficient for the company alleged by the defendants, without any reasonable doubt. The main purpose of using the foreign capital of this case is to recognize the existence of an intention of unlawful acquisition as an expenditure for the company’s operating capital or for the company’s operational needs.

㈎ 이 사건 부외자금은 주로 하도급계약 체결을 담당하는 피고인 5 회사 외주구매본부에서 피고인 5 회사가 수급한 공사에 관하여 하수급업체와 사이에 공사금액을 부풀려 하도급계약을 체결한 다음, 하수급업체에 기성금이 지급되면 그 차액을 현금으로 일률적으로 반환받는 방식으로 조성되었다. 이와 같은 방식의 부외자금의 조성 행위는 피고인 3이 피고인 5 회사 관리본부장으로 전보되기 전부터 회사 전체 차원에서 일반적·관행적으로 이루어진 것으로 보이고, 특정 사업부서에서 공사 수주와 관련한 불법 로비자금 등과 같은 구체적인 용도를 정해놓고 그때그때 필요한 금액을 의도적으로 조성하였다고 볼 만한 정황은 나타난 바 없다.

㈏ 외주구매본부는 위와 같이 부외자금을 조성한 후 그 내역을 표로 정리하여 관리하였고, 피고인 5 회사의 자금 관리 업무를 담당하는 경영지원본부 자금팀에서 외주구매본부로부터 부외자금을 전달받아 경리부서 사무실 내에 공식자금의 현금시재, 유가증권, 기타 중요서류 등을 보관하는 금고에 넣어두었다. 이 부외자금을 사용하고자 하는 부서의 임직원은 부서명, 이름, 금액 등이 기재된 현금보관증을 작성하여 내부결재를 받아 대표이사에게 보고한 후 자금팀에 위 현금보관증을 교부하고 현금을 지급받아 사용하였다. 당시 부외자금 출납업무를 담당한 피고인 1은 두 달에 한 번 정도 부외자금의 입출금 현황 및 잔액에 대해 대표이사에게 보고하였다. 이처럼 이 사건 부외자금의 조성과 사용 주체가 분리되어 있고, 자금 출납을 담당하는 부서 및 임원에 의해 공식적인 회사 자금에 준하여 관리되었으며, 그 집행과정에서도 내부보고 과정을 거쳤던 점에 비추어 볼 때, 이 사건 부외자금 조성 및 사용에 관여한 임직원들은 이 사건 부외자금을 회사 자금으로 인식하였고 특정 사업부서나 임직원이 임의로 쓸 수 있는 구조는 아니었다.

㈐ 이 사건 부외자금 중 2002. 5~6.경 조성된 부분에 관련한 집행내역(증거기록 6,311쪽)에 의하면, 이 사건 부외자금은 피고인 5 회사의 각 부서의 성격과 규모, 현금성 경비의 필요성 등을 고려하여 골고루 배분되었던 것으로 보이고, 공사 수주와 관련이 없는 부서를 모두 포함하여 회사 전체적으로 부외자금이 배분되었던 것으로 판단된다.

㈑ 피고인들이 주장하는 사용처에 관하여 구체적으로 살펴본다.

① First of all, regarding the activities related to the offering of a bribe for the internship. In the case of a package deal project for design and construction, a successful bidder shall be selected on the basis of ordinary execution capacity, bid price, and design evaluation score, and design evaluation score shall be granted by the design evaluation deliberation committee of the ordering agency. From among the examiners, including professors and experts, up to a maximum of 3,00 persons up to 3,00 persons prior to the year 20, an examiner is selected on the date of design evaluation, and the successful bidder is selected within a short time period from the date of deliberation to the date of the successful bidder’s selection, it seems that there is a need to conduct prior public relations activities for the examiners before the selection of the design evaluation committee. The public service project headquarters and the construction project headquarters of Defendant 5 participated in the tender for the 37 internship project from around 204 to around 209. From around January 1, 2005 to around 207, it appears that there were some possibility of Nonindicted Party 1’s public service activities from the prosecution’s office’s 200.

② 재건축·재개발 사업과 관련한 수주활동비에 관하여 본다. 피고인 5 회사가 영위하는 사업 중 주택 관련 사업이 전반적으로 전체 매출에서 가장 큰 비중을 차지하고 있고, 피고인 5 회사는 2002년경부터 2010년경까지 사이에 총 73건의 재개발·재건축 사업에 참여하였다. 재건축·재개발 사업의 경우 시공사를 조합원 총회를 통하여 선정하므로 건설사들은 다수의 조합원들의 표심을 얻기 위하여 소속 직원들을 사업장에 파견하여 조합원들을 상대로 시공능력 등 사업 참여 조건에 관하여 홍보활동을 하도록 하였다. 2002. 4.경부터 주택사업본부에 근무하면서 재건축·재개발 사업의 수주 업무를 담당한 공소외 17의 원심 법정 및 검찰에서의 진술, 2006년경부터 2010년경까지 주택사업본부에서 재건축·재개발 사업을 담당한 공소외 18의 검찰에서의 진술, 2008년경부터 주택사업본부장으로 근무한 공소외 19의 원심 법정에서의 주5) 진술, 실제 피고인 5 회사가 2007년경 참여한 □□ ◎◎◎◎◎◎아파트 재건축사업과 관련하여 소속 직원 300명을 □□에 파견하여 3,750명에 이르는 조합원들을 상대로 홍보활동을 한 사실이 있는 점, 위 ㈐항의 2002. 5~6.경 부외자금의 집행내역에 의하면 피고인 5 회사가 □□ ◁◁동 재건축사업을 추진할 무렵인 2002년 중반경 주택사업팀에 부외자금 5,000여만 원이 배분되기도 한 점 등에 비추어 재건축·재개발 사업을 수주하기 위한 홍보활동에 필요한 경비 중 일부는 공식자금 외에 이 사건 부외자금에서도 지원되었던 것으로 보인다.

③ 다음으로 공사현장의 운영과정에 필요한 현금성 경비(돌관비)에 관하여 본다. 2000. 4.경부터 2008.경까지 아파트, 대형마트 등 공사현장에서 현장소장으로 근무한 공소외 20의 돌관비에 관한 원심 법정에서의 주6) 진술, 피고인 5 회사는 피고인들이 이 사건 부외자금을 돌관비 명목으로 사용하였다고 주장하는 2002년경부터 2004년경까지 무렵에 100여개의 공사 현장을 상시 운영하고 있었고, 위 ㈐항의 2002. 5~6.경 부외자금의 집행내역에 의하면 2개월 동안 공사현장으로 4억 8,000여만 원이 배분되기도 한 점, 공사현장의 운영 특성상 그 소요경비를 모두 예산에 미리 반영하여 처리할 수 없거나 현실적으로 증빙을 일일이 갖추기 어려운 경우가 있어 현금성 경비의 필요성을 충분히 수긍할 수 있는 점 등에 비추어 볼 때, 이 사건 부외자금 중 일부는 위와 같은 돌관비 명목으로 공사현장에 지원되었을 가능성이 있으며 이는 공사현장의 원활한 운영을 도모하기 위한 비용으로 볼 수 있다.

④ Finally, internal expenses, such as various event expenses, incentives at the construction site, and competition expenses, are considered to be considered to be internal expenses. Nonindicted 12, 17, 20, 21, and 19, Defendant 5’s employees, statements at the prosecution or the court of original instance concerning internal expenses of the company, and various official event expenses of the company, which were not set separate budgets. In light of the scale of the event (as of 2009, the total number of employees of Defendant 5 were 2,000 and the subsequent amount was maintained) or frequency of the company’s exercise (as of 209, the number of employees of Defendant 5 were 2,00 and the subsequent amount was ever maintained) and the company’s official budget was set as a incentive at the time of visiting the site with the representative director’s official budget, but it was difficult to readily conclude that the total amount was less than 80,000 won for each officer of each business department, and that there was no possibility that there was an additional expense for the company’s internal and external activity expenses.

㈒ 이 사건 부외자금 중 10억 원이 2002. 11. 말경부터 같은 해 12. 초경까지 사이에 불법 정치자금 명목으로 쓰인 사실은 인정된다. 그러나 검사가 제출하는 증거들만으로는 피고인들이 위 범행에 가담하였다고 인정하기 어렵다. 설령 피고인들이 위 범행에 가담하였다고 하더라도, 이 부분 범행은 구 특정경제범죄 가중처벌 등에 관한 법률(2012. 2. 10. 법률 제11304호로 개정되기 전의 것) 제3조 제1항 제2호 , 형법 제356조 , 제355조 제1항 에 해당하는 범죄로서 그 법정형이 3년 이상의 유기징역이므로 형사소송법(2007. 12. 21. 법률 제8730호) 부칙 제3조, 구 형사소송법(2007. 12. 21. 법률 제8730호로 개정되기 전의 것) 제249조 제1항 제3호 에 따라 그 공소시효가 7년인데, 이 부분 공소는 범행종료일인 2002. 12.경으로부터 7년이 경과한 후인 2016. 10. 19. 제기되어 공소시효가 완성되었다(다만 원심이 간과하였으나, 형사소송법 제253조 제2항 에 따라 공범인 공소외 2에 대하여 공소가 제기된 2004. 4. 12.부터 그 판결이 확정된 2004. 7. 22.까지의 기간인 3개월 11일 동안 공소시효가 정지되었는데, 이를 감안하더라도 공소시효는 완성되었다).

C) Determination of the immediate deliberation

(i)The acquitted portion

Among this part of the facts charged, we examine the part concerning the crime since October 19, 2006.

In light of the following circumstances acknowledged by the records of this case, the court below's aforementioned fact-finding and judgment are recognized as legitimate after comparing them with records, and it does not seem that there was an error of misunderstanding of facts as pointed out by the prosecutor in this part of the judgment of the court below.

① The Defendants’ intent to obtain unjust enrichment cannot be readily acknowledged solely on the ground that the Defendants did not present objective evidentiary data, such as receipts, etc., on the ground that the Defendants did not present any objective evidentiary data regarding the specific place of use.

② Inasmuch as the Nonindicted Fund was created in a general and customary manner by which part of the construction cost is returned from the subcontractor who entered into a subcontract with Defendant 5 rather than intentionally raising an amount necessary therefor, the Nonindicted Fund was likely to be used without normal accounting management for the execution of cash-related expenses necessary for the business of the company, even if it was possible to conduct a normal accounting for the relevant user or the relevant budget remains, even if it was possible to use the Nonindicted Fund in the execution of cash-related expenses necessary for the business of the company.

Shed parts of acquittal

This part of the facts charged is examined as to the part concerning the crime until October 18, 2006.

As seen earlier, since there is no proof of a crime since October 19, 2006, the statute of limitations should be determined as to the crime by October 18, 2006 except this part. This part of the crime is a crime falling under Article 3(1)1 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Feb. 10, 2012); Articles 356 and 355(1) of the Criminal Act and its statutory punishment is imprisonment for life or for a limited term of five or more years (Act No. 8730, Dec. 21, 2007); Article 3 of the Addenda of the Criminal Procedure Act (Amended by Act No. 8730, Dec. 21, 2007); Article 249(1)2 of the former Criminal Procedure Act (Amended by Act No. 8730, Dec. 21, 2007; Act No. 10650, Apr. 16, 2006).

【Court Decision】

In the event that there is no evidence of conviction against part of the inclusive crime and the prescription of prosecution against the remaining part has expired, it is right to indicate the order of innocence favorable to the defendant and explain only the reasons for the judgment (see, e.g., Supreme Court Decision 2016Do11324, Dec. 29, 2016). Since the statute of limitations has expired for the part concerning the crime until October 18, 2006 among the facts charged in this part, the acquittal shall be pronounced pursuant to Article 326 subparagraph 3 of the Criminal Procedure Act. However, as long as the court below acquitted the part concerning the crime in this part of the facts charged in relation to the blanket crime after October 19, 206, it is not sentenced separately from the disposition.

Therefore, this part of the prosecutor's argument is without merit.

2) Determination as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Tax) against Defendants 1 and 2, and each violation of the Punishment of Tax Evaders Act against Defendants 1, 2, and 5

A) Defendant 1

(i) Relevant legal principles

Article 30 of the Criminal Act provides that two or more persons jointly commit a crime. In order to constitute a joint principal offender, the subjective element of the joint principal offender requires the fact that a crime is committed through functional control over a functional act based on the joint doctor as an objective element. The intent of joint principal processing must be integrated to commit a specific crime with the intention of joint principal, and the intention of joint principal processing shall be to move to the execution of one’s own intent by using another’s act (see, e.g., Supreme Court Decision 2002Do7477, Mar. 28, 2003). In full view of the position, role, control over the progress of the crime, etc. of the joint principal offender, a person who does not directly participate in part of the act constituting the elements of a crime among the joint principal offender may be liable for the so-called joint principal offender if it is deemed that there exists a functional control over the crime through an essential contribution to the crime (see, e.g., Supreme Court Decision 2017Do15476, Dec. 16, 2017).

Dozed Facts

According to the evidence duly adopted and examined by the court below and the trial court, the following facts can be acknowledged:

① Around November 2001, Defendant entered Defendant 5 as the director of the accounting department and the director of the accounting division, and around March 2003, the officer in charge of accounting of the accounting team, the head of the personnel team and the director of the re-election team around December 2004, the head of the management support headquarters around March 2009, the head of the management support headquarters around March 201, the head of the management support headquarters around February 201, and the vice president from February 2014. Defendant 5, the director of the accounting division, the vice-chairperson, and the director of the management support headquarters, shall take charge of accounting affairs, including tax reports, and the fund affairs, and the director of the management support headquarters, and the re-election division

② From April 2003, the Defendant was in charge of the storage, management, and receipt and disbursement of the instant extracurricular funds. From January 2008 to December 2, 2012, Nonindicted 19, who was employed as the head of the Housing Project Headquarters, stated in the prosecutor’s office that “after assumed office as the head of the headquarters around January 2008, the Defendant asked the Defendant about the shortage of management expenses, and the Defendant stated that “The Defendant reported the shortage to the representative director, and that “the Defendant was aware of the fact that the Defendant manages the place of using extracurricular funds under the order of the representative director.” Defendant 2 made a merial book in relation to the deposit of extracurricular funds, and reported the current status and balance of the payment of extracurricular funds to the representative director once every two months.”

③ As seen earlier, the Defendant, at the prosecution, stated in the purport that “The Defendant used most of the use places of foreign capital as deductible expenses, which are difficult to keep a normal account with documentary evidence.” The Defendant stated in the court of the court below to the effect that “The Defendant stated in the prosecutor’s office that “The above statement in the prosecutor’s office is required to prove that it is very strict standard and that it is strong for the tax authorities to consider it as entertainment expenses unless otherwise,” and that most of it is used as cash-related expenses difficult to keep accounts, and thus, it shall be memory that most of them are denied as deductible expenses.”

④ From 206 to 2006, the Defendant was involved in reporting corporate tax by Defendant 5 as the head of the re-election team, the head of the office of management support, the head of the office of management support, and the head of the management support headquarters. The Defendant was aware of the existence, amount and use of the instant out-of-the-counter funds, and the circumstances that the instant out-of-the-counter funds were not treated as earnings. From 2011 to 2016, Nonindicted 22, the accounting team staff of the financial team in the re-election division, including Defendant 5’s tax base and tax amount assessment, did not receive any instruction from the representative director who is the approving authority or the Defendant, etc. who is the head of the management support headquarters in relation to reporting corporate tax. At the time, the Defendant did not know

【Judgment

In light of the above facts in light of the legal principles as seen earlier, it can be sufficiently recognized that the defendant, while taking charge of the management of the foreign capital of this case and the reporting of the corporate tax of this case, has performed functional control through the intrinsic contribution to the crime of evading corporate tax of this part by gathering the representative director, etc. with the intent to evade corporate tax related to the foreign capital of this case. The prosecutor's assertion of mistake of facts that points this out has merit.

B) Defendant 2

According to the evidence duly adopted and examined by the court below and the trial court, the defendant is found to have been involved in the creation of the outdoor fund of this case while working at the headquarters for the purchase of the company 5, who is in charge of the conclusion of the subcontract at the time of this case.

However, even upon examining the evidence submitted by the prosecutor, it is insufficient to recognize the fact that the defendant had an intention to evade corporate tax of Defendant 5 at the time of raising the foreign capital, or that the defendant had a leading role in the use of the foreign capital of this case or the reporting of corporate tax. Rather, according to the records of this case, the defendant did not participate in the management or use of the foreign capital of this case after transferring the foreign capital created in transactions with the sewage company to Defendant 1, and only can it be recognized that the defendant has been in charge of affairs unrelated to the reporting of corporate tax within Defendant 5. In light of these circumstances, the fact that the defendant participated in the raising of the foreign capital of this case, just because he participated in the raising of the foreign capital of this case, cannot be readily concluded that he had a functional control over the crime of evading corporate tax as stated in this part of the facts charged with the intention of joint consent.

This part of the prosecutor's argument of mistake is without merit.

C) Defendant 5

As seen above, Defendant 1, an employee of the defendant, has evaded corporate tax regarding the defendant's business. As such, the defendant also bears criminal liability for the crime of evading corporate tax in accordance with joint penal provisions.

The prosecutor's argument that points this out is justified.

3) Defendant 2’s possession of property in breach of trust

A) The judgment of the court below

The lower court acknowledged the fact that the Defendant acquired money and valuables and entertainment from Nonindicted 1 as stated in this part of the facts charged, but determined that it is difficult for the Defendant to recognize that the Defendant received an illegal solicitation from Nonindicted 1. The specific reasons for the judgment are as follows.

① In light of the fact that, as a matter of principle, among the collaborative companies registered, Defendant 5 was selected as the most favorable company for Defendant 5 as the subcontractor through the minimum competitive bidding, Nonindicted Co. 3 was selected as the subcontractor and most of them were selected as the subcontractor for the instant construction work through a normal competitive bidding between the majority of subcontractors, and it is difficult to deem that the Defendant had the authority to select the supplier, it is difficult to find that Nonindicted Co. 1 requested the Defendant to the effect that “the Defendant had the power to supply construction materials, etc. to the construction site of Defendant 5.”

② Even if Nonindicted Co. 1 asked the Defendant to the effect that Nonindicted Co. 3 would be able to enter the list of Defendant Co. 5’s partner companies in connection with the instant construction project, it is difficult to view that Defendant Co. 5’s partner companies are excluded from legitimate competition in the process of supplying construction materials or given preferential status merely because it is registered with Defendant Co. 5 in order to be selected as a supplier with respect to the construction project ordered by Defendant Co. 5, and it is difficult to conclude that the money and valuables received by the Defendant and entertainment offered in a pro-friendly relationship between the Defendant and Nonindicted Co. 1 as the price for illegal solicitation to the extent that it would undermine the integrity of transaction. In light of the above, it is difficult to recognize that the Defendant received illegal solicitation to the extent that it goes beyond the scope of lawful and normal processing in relation to the affairs entrusted by Defendant 5, and received money and valuables as a consideration.

B) Determination of the immediate deliberation

(i) Relevant legal principles

The crime of taking property in breach of trust under Article 357 (1) of the Criminal Act is established when a person who administers another person's business obtains property or profits from property in exchange for an illegal solicitation in connection with his/her duties, and the crime of taking property in breach of trust is not established unless there is an illegal solicitation between the donor and the purchaser of the property or profits. In this context, the term "illegal solicitation" does not necessarily require it to the extent that it is the substance of occupational breach of trust, and it is sufficient if it is contrary to social rules or the principle of trust and good faith. In determining this, the contents of the solicitation and related amount of the consideration, form, and integrity of transactions, which are protected legal interests, should be comprehensively examined (see Supreme Court Decision 2008Do6987, Dec. 11, 2008, etc.).

Dozed Facts

According to the evidence duly adopted and examined by the court below and the trial court, the following facts can be acknowledged:

(1) around February 2012, the Defendant served as the head of the external sales headquarters (the head of the external sales headquarters after February 2013) in charge of determining suppliers of construction materials, such as the purchase of various kinds of external construction works performed by Defendant 5, the selection of a subcontractor, and the conclusion of a contract.

② At the time of Defendant 5’s construction work (the name of the construction omitted) ordered by Nonindicted Co. 24 (hereinafter “instant construction work”). However, Nonindicted Co. 25, Nonindicted Co. 26, and Nonindicted Co. 1 who operated Nonindicted Co. 27’s agency business of construction materials at the time agreed to receive brokerage fees from Nonindicted Co. 3 when Nonindicted Co. 3’s construction materials are supplied to the instant construction work.

③ Accordingly, Nonindicted 1 served as the Defendant’s commercial name at the headquarters for the purchase of off-the-counter stocks of Nonindicted Company 5 and served as the vice-chairperson in around 2009. In relation to Nonindicted 1’s introduction, Nonindicted 5, who was in charge of Nonindicted Company 25, was first sent to Nonindicted 5, along with Nonindicted 5, at the mutual influent restaurant located in the Seocho-gu Seoul Metropolitan Government distribution Dong around the end of 2012. In the above meal place, Nonindicted 5, who was the Defendant, stated that “ Nonindicted 1, who is well in delivery of construction materials, is well influence,” and Nonindicted 1, who was prepared in advance, gave up KRW 1 million in cash between Nonindicted 1 and Nonindicted 1, who was in charge of the purchase of off-the-counter stocks of Nonindicted Company 5. In order to this end, Nonindicted 1, who prepared for Nonindicted 200, to the extent that he would have to bear a burden on Defendant 2 and Nonindicted 5.”

④ As a matter of principle, Defendant 5 was selected as a sewage supplier through a competitive bid from among those registered as a subcontractor. However, Nonindicted Co. 3 was not registered as the first subcontractor of Defendant 5, and thus could not supply construction materials to the instant construction work.

(5) Cooperative companies related to collaborative companies, such as the registration, management, and evaluation of collaborative companies, were in charge of the headquarters for external purchase to which the Defendant belongs, and the Defendant, as a person responsible for the headquarters for external purchase, was able to recommend and register a new company as a collaborative company. The final selection of a subcontractor was also in charge of the headquarters for external purchase. The final selection of a subcontractor was conducted at the headquarters for external purchase, but the evaluation was conducted on the adequacy of the bid price and

⑥ As above, Nonindicted 1 became aware of the Defendant through the introduction by Nonindicted 5, and Nonindicted 3 was registered as a cooperative company of Defendant 5. Nonindicted 3 was mainly selected as a subcontractor of the instant construction project through competitive bidding, and continuously supplied the instant construction work by not later than 2016. Accordingly, Nonindicted 1 was paid KRW 2.15 million from Nonindicted 3 under the name of the intermediary fee.

⑦ 그 과정에서 공소외 1은 이 부분 공소사실 기재와 같이 피고인의 골프 여행경비 150만 원 상당을 대신 내주고, 피고인의 처 생일 선물 명목으로 시가 500만 원 상당의 샤넬 가방을 교부하였으며, 피고인의 큰 딸 축의금 명목으로 텔레비전 구입비용 280만 원을 송금하였고, 시가 100만 원 상당의 시계를 피고인에게 주었다(별지 범죄일람표Ⅲ 순번 2 내지 5). 이 부분 공소사실과 같은 금품과 향응 이외에도 공소외 1은 피고인 부부의 중국 골프여행 경비를 대신 부담해 준다거나 피고인의 딸 2명의 취업을 도와주기도 하였다.

⑧ 위와 같은 금품 및 향응 제공과 관련하여, 공소외 1은 검찰에서 “영업을 위해서 피고인에게 금품과 향응을 제공하였다.”라는 취지로, 검찰 및 원심 법정에서 “피고인의 처에게 샤넬 가방을 준 것은 피고인의 처에게 호감을 얻는 것이 가장 빠른 영업 방법이라고 판단했기 때문이다.”라는 취지로 각 진술하였다. 공소외 1은 위와 같은 금품수수 사실이 외부에 드러나는 것을 막기 위하여 자신의 직원인 공소외 28 명의 계좌를 통하여 위 텔레비전 구입비용 280만 원을 피고인의 사위 명의 계좌로 송금하였다.

9) Nonindicted 1 stated at the prosecution that “The supply of construction materials by Nonindicted Company 3 was able to deliver them to the instant construction work is because the Defendant attempted to do so by requesting the Defendant.”

【Judgment

According to the above facts, Nonindicted Party 1, a person in charge of the department in charge of the registration of a collaborative company and the selection of a subcontractor, intentionally accessed Nonindicted Company 3 as a subcontractor and delivered KRW 1 million in cash at the first place to the Defendant. Nonindicted Company 3 registered as a cooperative company of Defendant 5 and entered into a considerable subcontract on a scale. Nonindicted Party 1, who received enormous profits in the process, provided the Defendant with various benefits, such as money and valuables and entertainment equivalent to KRW 11.3 million in total going beyond a private case as indicated in this part of the facts charged, as well as the travel expenses and job placement services. In addition, the relationship between the Defendant and Nonindicted Party 1, was intentionally formed in accordance with the business purpose of Nonindicted Party 1, the fact that the above property or property gains accrued to the Defendant, all of the property or property gains provided by Nonindicted Party 1 belongs to the Defendant, and Nonindicted Party 1, a person who received enormous profits in the process, ought to be deemed to have explicitly changed to the effect that “the Defendant was supplied to the Defendant or the Defendant in good faith.”

The prosecutor's argument that points this out is justified.

3. Conclusion

Among the acquittal portion of the judgment of the court below, each of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) to Defendant 1, Defendant 2, and Defendant 3 and the prosecutor's appeal against Defendant 4 is without merit, and it is dismissed in accordance with Article 364 (

Among the judgment of the court below, the guilty portion against Defendant 3 and each violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) against Defendant 1 and Defendant 2, each violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) against Defendant 1, Defendant 2, and each violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) against Defendant 5 are reversed due to the changes in the indictment; Defendant 1 and Defendant 5 violated the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) against the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) against Defendant 1; Defendant 1 and Defendant 5 violated the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) against the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) against Defendant 2; Defendant 2 violated the Act on the Aggravated Punishment, etc. of Specific Crimes against the Aggravated Punishment, and the prosecutor's appeal against the violation of the Act on the Aggravated Punishment, etc. of Tax Evaders against Defendant 2 is reversed as follows.

1. Defendants 1 and 3

Defendant 5 Company is a corporation established for the purpose of building business and civil engineering business.

Defendant 1 worked in the △△ Group Planning and Coordination Office, and was transferred to Defendant 5’s accounting division on November 2001, and worked as a vice president holding the concurrent office of the head of the management support headquarters and the head of the housing project headquarters on February 1, 201 through the head of the re-election team, the head of the management support headquarters, and the head of the management support office, etc., and was in charge of Defendant 5’s accounting and fund-related affairs.

Defendant 3, from October 2001 to September 2004, was in general control of Defendant 5’s general affairs, financial affairs, and affairs related to outsourcing, etc., and was in general control of Defendant 5’s management from October 2004 to March 2009.

Defendant 3 instructed Nonindicted 4, a director in charge of material purchase of the material team (on the port side purchase headquarters), to raise funds using a subcontract with the subcontractor. Nonindicted 4, the chief of the material department, Nonindicted 5, Defendant 2, the chief of the material department, Defendant 4, the chief of the material department, and Defendant 2, the chief of the material department, ordered Defendant 4, the person in charge of the purchase of the material team, to pay the construction cost in installments and receive a refund of the difference in cash and manage the funds thereafter. Defendant 1, the chief of the accounting department, the director in charge at the time of Nonindicted 4 and Nonindicted 5, who delivered the funds to Nonindicted 29, the director in charge of the general affairs, ordered him to manage the funds. Defendant 1 kept the funds delivered as above, and received and disbursed them by the direction of the representative director.

Accordingly, Defendant 2 and Defendant 4 entered into a subcontract with a subcontractor in around 2007, and received a refund of the aggregate of KRW 2,532,526,374 in the name of rebates, etc. on the condition that they did not account for the difference from the outside, and did not take measures to include the refund in the gross income, and did not take measures to manage the funds raised by the said method in a separate account book or record and omitted it in the company’s official account book, and actively concealed income equivalent to the difference.

around March 31, 2008, the Defendants conspired not to include the amount equivalent to the above difference in the corporate tax base for the corporate tax for the year 2007 by Defendant 5, but to evade KRW 633,131,594 by making the corporate tax payment due date expired at that time. From that time, until March 2009, the Defendants paid the construction price by withdrawing the construction price to the sewage-based company as described in the attached Table II Nos. 1 and 2, and received a refund of the difference again, the Defendants evaded corporate tax of KRW 1,567,123,344 by fraud or other unlawful act by not including the amount equivalent to the difference in the corporate tax base until March 31 of the following year.

Defendant 1, in collusion with Nonindicted 30 (at the time from March 2009 to January 2014) and Nonindicted 31 (at the time from February 2014 to February 2017) of the former representative director of Defendant 5, Defendant 1, from March 2010 to March 3, 2014, paid the construction price in installments to the subcontractor from March 3 to March 2014, and received a refund of the difference, shall be included in the gross income. However, Defendant 1 evaded corporate tax of KRW 1,00,912,00 in total by fraud or other unlawful means, such as not including the amount equivalent to the difference in the corporate tax base by March 31 of the following year as the gross income tax base.

2. Defendant 5

around March 2010, around March 2012, around March 2012, around March 2013, around March 2013, and around March 2014, Defendant 1, who is the representative, Nonindicted 30, Nonindicted 31, and employee, evaded corporate tax in the same manner as described in paragraph (1) with respect to the Defendant’s business.

3. Defendant 2

Around July 1988, the Defendant entered Defendant 5 and worked as the head of the Foreign Affairs Administration around February 2013 through the head of the materials management division, the head of the external affairs team, and the head of the external affairs division. Around February 2013, Defendant 5 was in charge of the purchase of various kinds of outsourcings, the selection of subcontractors, the conclusion of contracts, and the receipt of construction price.

around the end of 2012, the Defendant received cash KRW 1 million from Nonindicted 1, the representative director of Nonindicted Company 25, who supplies construction materials, such as others, to Defendant 5, at the mutual influent restaurant in Seocho-gu Seoul, Seocho-gu, Seoul, with Nonindicted 1’s request from Defendant 5 to the effect that “the supply of construction materials, etc., to Defendant 5’s construction site,” and received money and valuables or entertainment from Nonindicted 1, as described in attached Table 3, from that time until July 2015.

Accordingly, the defendant, as a person in charge of external purchase of defendant 5's company, acquired property or financial benefits equivalent to KRW 11,300,000 in total in receipt of illegal solicitation on his duties.

1. Each of the original judgments made by the witness, Nonindicted 5, Nonindicted 4, and Nonindicted 1

1. Each prosecutor's protocol of examination of the suspect against Defendants 1, 2, 3, and 4

1. A protocol of examination of suspects of offenses against Defendants 1, 2, and 3;

1. Each prosecutor’s statement on Nonindicted 19, Nonindicted 32, and Nonindicted 1

1. Copy of the Nonindicted 3’s statement and Nonindicted 6’s statement

1. Each written accusation;

1. On the management screen (Evidence No. 3870 pages), each statement of entertainment expenses (Evidence No. 8,064-8,078 pages), list of deposits and receipts, and details of raising funds for sales of Defendant 5 (Evidence No. 8,346-8,357 pages)

A. Defendant 1: Each of the Defendants 1: Article 8(1)2 and (2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 9919, Jan. 1, 2010); Article 9(1)3 of the former Punishment of Tax Evaders Act (Amended by Act No. 9919, Jan. 1, 2010; hereinafter the same shall apply); Article 30 of the Criminal Act [Attachment II 1; 207; 2007; 208; 208; 205; 3; 4; 5; 5; 1; 20; 3; 4; 1; 20; 3; 4; 1; 30; 25; 4; 1; 30; 1; 40; 25; 4; 30; 1; 30; 40; 1; 25; 30; 4; 1; 5; 20; 4; 30; 4; 4; 1;20 of each of the penal provisions of the Criminal Act

B. Defendant 2: Article 357(1) of the former Criminal Act (amended by Act No. 14178, May 29, 2016) (amended by Act No. 14178, May 29, 2016)

C. Defendant 3: Each of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 919, Jan. 1, 2010); Article 8(1)2 and (2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes; Article 9(1)3 of the former Punishment of Tax Evaders Act; Article 30 of the Criminal Act [Attachment II No. 1, 207, 2007, and 2008; and both penalties of fines: Provided, That the upper limit of imprisonment is governed by the main sentence of Article 42 of the former Criminal Act (Amended by Act No. 10259, Apr. 15, 2010)];

(d) Defendant 5: Articles 18 and 3(1)2 of the Punishment of Tax Evaders Act (Attached Table II - 3 taxable years), Article 18 and the main sentence of Article 3(1) of the Punishment of Tax Evaders Act (attached Table II - from 4 to 6 taxable years to 2013)

1. Aggravation for concurrent crimes;

A. Defendant 1: the former part of Article 37 of the Criminal Act, Articles 38(1)2 and 50 of the Criminal Act, Article 4(1) of the former Punishment of Tax Evaders Act, Article 20 of the Punishment of Tax Evaders Act [in the case of imprisonment with prison labor, the sum of fines prescribed for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) and the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) shall not be applied, while Article 38(1)2 of the Criminal Act provides for heavy restriction on concurrence of fines under Article 38(1)2 of the Criminal Act, Article 4(1) of the former Punishment of Tax Evaders Act, and Article 20 of

B. Defendant 3: the former part of Article 37 of the Criminal Act, Articles 38(1)2 and 50 of the Criminal Act, Article 4(1) of the former Punishment of Tax Evaders Act [the sum of fines prescribed by the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) and the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) shall not apply to imprisonment with prison labor, among the concurrent criminal offenders with prison labor, which is heavier than imprisonment, set forth in attached Table II of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) 2 of 208, with respect to fines, without applying Article 38(1)2

(c) Defendant 5 company: the former part of Article 37 of the Criminal Act, and Article 20 of the Punishment of Tax Evaders Act (the sum of fines prescribed in the Punishment of Tax Evaders Act in the crimes of violation of the Punishment of Tax Evaders Act, instead of applying the provisions on restricted aggravation on the concurrence of fines under Article 38

1. Discretionary mitigation;

Defendant 1 and Defendant 3: Articles 53, 55(1)3 and 6 of the Criminal Act (The following consideration of each of the favorable circumstances among the reasons for sentencing)

1. Detention in a workhouse;

Defendant 1 and Defendant 3: Articles 70 and 69(2) of the former Criminal Act (Amended by Act No. 12575, May 14, 2014)

1. Suspension of execution;

Defendant 1, Defendant 2, and Defendant 3: Each of the provisions of Article 62(1) of the Criminal Act (The following consideration is given to each of the favorable circumstances among the reasons for sentencing)

1. Additional collection:

Defendant 2: The latter part of Article 357(3) of the former Criminal Act (Amended by Act No. 14178, May 29, 2016)

The crime of this case was committed by Defendant 5 Company’s company, which received a partial return of the subcontract price from the sewage company, thereby evading corporate tax by intentionally omitting the foreign capital created in the process. Defendant 3, as the representative director, led the instant crime, and Defendant 1 was involved in the instant crime for the long time, despite the change of the representative director as the executive officer in charge of the accounting, accounting, and funding-related affairs of Defendant 5. Defendant 5 forced Defendant 5 to enter into a contract with the sewage company to return part of the construction price to Defendant 5 company by taking advantage of the economic superior status. Defendant 5 committed the instant crime over a long-term period. The instant crime was committed on a systematic basis, and the amount of evaded tax reaches KRW 2.5 billion in total, and KRW 1.5 billion in total in the case of Defendant 3. This is a crime that disturbs the national tax collection order and seriously undermines tax justice, which may adversely affect the general public’s awareness of tax payment. This is a serious disadvantage to the Defendants.

All of the taxes evaded due to the instant crime were paid. The Defendants seem to have no benefit by themselves from the instant crime. From May 2013, Defendant 5 discontinued the creation and use of such extra funds. Defendant 1 was the first criminal without any previous criminal record, and Defendant 3 did not have any criminal record exceeding the fine. The social relationship between the Defendants is apparent. Defendant 3 is the age of 70 years old, and is not good for health conditions due to a compromise. This is favorable to the Defendants.

In addition, the defendants' age, character and conduct, environment, family relations, criminal records, the circumstances and results of the crime, and all the sentencing conditions shown in the arguments after the crime are taken into account, the punishment as ordered shall be determined.

2. Defendant 2

The crime of this case was committed by Defendant 5 Company’s non-indicted 1, who was approaching to be selected as Defendant 5 Company’s sewage companies, and received money, valuables, and entertainment repeatedly in return for unlawful solicitation from Defendant 5 Company’s sewage companies, and the nature of the crime is not good. The Defendant began to receive KRW 1 million in cash from Defendant 1’s first Gangnam, and received money, valuables, entertainment, and profits from Nonindicted 1 several times, and the sum of the money, valuables, and entertainment prosecuted amount to KRW 11,30,000. Upon the commencement of the investigation of this case, the Defendant actively attempted to abolish evidence, such as the Defendant’s talking that Nonindicted 1 would throw away his cellular phone. These points are the circumstances unfavorable to the Defendant.

The Defendant is an initial offender with no previous conviction. It does not seem that the instant crime was committed according to the Defendant’s affirmative demand. Defendant 5 did not want to punish the Defendant. The social relationship of the Defendant is apparent. This is the circumstances favorable to the Defendant.

In addition, the defendant's age, character and conduct, environment, family relations, criminal records, circumstances and results of the crime, and all the sentencing conditions shown in the arguments, such as circumstances after the crime, shall be determined as ordered.

3. Defendant 5

The representatives and employees of the Defendant, for a long time exceeding 10 years, received a return of part of the subcontract price from the sewage supplier to create and use the foreign capital, and evaded corporate tax by intentionally omitting the foreign capital created in the process from the account book. Nonindicted 2 and the Defendant, the representative director of the Defendant, even though they were subject to criminal punishment by the same method on July 2004, continued the instant crime without suspending the raising and use of the foreign capital. This is an unfavorable circumstance to the Defendant.

All the taxes evaded due to the instant crime were paid. Since May 2013, the Defendant discontinued the creation and use of such extra capital. These points are favorable to the Defendant.

In addition, in consideration of the various sentencing conditions shown in the argument of this case, the sentence shall be determined as per the Disposition.

The summary of this part of the facts charged is as stated in the corresponding part of the attached Form.

2. Determination

This part of the facts charged constitutes a case where there is no proof of a crime as prescribed in Article 2-3(b) of the Criminal Procedure Act, and thus, is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

[Attachment]

Judges Kim Jong-dae (Presiding Judge)

1) As such, it was mainly used in government-funded works, but it was not limited to government-funded works.

2) Although there was a suspicion that a refund was received by account transfer, a third party’s account was chosen in this case.

Note 3) In the judgment of the above case (In Busan District Court Decision 2010Gohap42) 5 to 6, “The two copies of the check on which Nonindicted 9 was handed down to the Defendant and which was the regular director of Nonindicted 8, who was Defendant 5 Co., Ltd., was issued under the name of Nonindicted 11, the representative director of Nonindicted 23 Co. 11, who was the regular director of the company at the time, used it to use it to go to the evaluation committee members, etc.” (Evidence No. 281, No. 50 million won cashier’s checks).

Note 4) From 2008 to 2009, Nonindicted Party 16’s statement in the trial court of the first instance in charge of Nonindicted Party 15’s public relations activities for the order of the tonk Construction Work, and Nonindicted Party 16’s statement in the trial court of the first instance that served as the head of the civil engineering project headquarters from January 2008 to April 2009 are the same purport.

Note 5) From December 2004 to January 2008, Non-Indicted 16’s statement in the court room is also the same purport.

Note 6) The same purport is that Nonindicted 12’s statement at the court of original instance, who served as the field director of the Civil Work Headquarters from 2002 to 2004, is the same.

7) To the extent that the facts charged against the Defendants do not disadvantage the Defendants’ exercise of their right of defense, some revisions or revisions were made according to the facts obtained through the examination of evidence without the amendment process.