Defendant 2 shall be punished by imprisonment with prison labor for not less than two years and six months and by a fine not exceeding one billion won.

When Defendant 2 fails to pay the above fine, the above defendant shall be confined in a workhouse for the period calculated by converting five million won into one day.

Defendant 2 shall order the provisional payment of an amount equivalent to the above fine.

Defendant 1’s appeal is dismissed.

A. Legal principles or mistake of facts (Defendant 1)

(1) Legal principles

Defendant 1’s return and payment of corporate tax in 2005 to Nonindicted Incorporated Company 1 (hereinafter “Nonindicted Company 1”) does not constitute “Fraud or other unlawful act” under Article 9(1) of the former Punishment of Tax Evaders Act (amended by Act No. 8138, Dec. 30, 2006; hereinafter the same). In other words, a simple non-declaration or false declaration does not constitute “Fraud or other unlawful act.” Defendant 1 did not submit specific documentary evidence, such as a tax invoice at the time of filing a return of corporate tax. Defendant 1 did not submit documentary evidence at the time of filing a return of the above corporate tax, and the value of transferred asset was attached to the document, but this does not constitute a supplement of the tax base and the amount of tax return.

(2) misunderstanding of facts

Defendant 1 delegated the management of Nonindicted Co. 1’s corporation and funds to Defendant 2, and did not have been delegated with Nonindicted Co. 1’s corporate tax or global income tax return. In addition, Defendant 1 merely reported Nonindicted Co. 1’s corporate tax according to the content of the accounting book received by Defendant 2, and Defendant 1 did not know of the illegal outflow of cash amounting to KRW 9.2 billion at the time of reporting corporate tax, and did not have any reason to manipulate the value of assets, thereby making a false accounting book by manipulating it. Accordingly, Defendant 1 did not make a solicitation of tax evasion with Defendant 2.

B. Unreasonable sentencing (defendants)

Each punishment sentenced by the court below to the defendants (three years of imprisonment, two billion won of fine) is too unreasonable.

2. Determination

A. Defendant 1

(1) As to the assertion of misunderstanding legal principles

The act of making a false book with excessive value of assets compared to the actual book value and thereby making a tax return so that the disposal profits from the disposal of assets fall under the act of making it impossible or considerably difficult to impose and collect taxes, and constitutes "Fraud or other unlawful act" under Article 9 (1) of the Punishment of Tax Evaders Act (see Supreme Court Decision 2002Do2569, Sept. 24, 2002, etc.).

According to the evidence duly adopted and examined by the court below and the court below, Defendant 1’s above act constitutes “Fraud or other unlawful act” under Article 9(1) of the former Punishment of Tax Evaders Act, as seen in the following (2). Accordingly, Defendant 1’s above assertion is without merit. In light of the above legal principles, Defendant 1’s above act constitutes “Fraud or other unlawful act” under Article 9(2) of the former Punishment of Tax Evaders Act, not simply made a false report when Defendant 1 filed corporate tax for 2005.

(2) As to the assertion of mistake of fact

For the reasons indicated in its reasoning, the lower court acknowledged the fact that Defendant 1 received corporate tax from Defendant 2 to be imposed on Nonindicted Company 1 and 1.5 billion won under the name of handling global income tax to be imposed on Defendant 2, and received corporate tax reports from Defendant 2, and that Defendant 1 fabricated the book value of Nonindicted Company 1’s assets to make a false book.

In light of the following facts, the judgment of the court below is justified, and there is no error of mistake of facts as alleged by the defendant 1, and there is no error of mistake of facts as alleged by the defendant 1.

① Defendant 2 asserts that Defendant 1 would have dealt with the issue of corporate tax at the prime cost of KRW 1.5 billion and that Defendant 1 would have entrusted Defendant 1 with the declaration of corporate tax in 2005 by Nonindicted Company 1’s corporate tax return in 2005 and paid KRW 1.5 billion including taxes and tax accountant’s expenses. Defendant 2’s assertion is credibility in the following point.

First, Defendant 2 made a confession at the court below which denied the crime of this case, but it was expected that the sum of the corporate tax of Nonindicted Company 1 and the income tax of Defendant 2 should be settled at KRW 1.5 billion, and Defendant 1 gave the above money to Defendant 1, and there was counsel's opinion that the crime of evasion can be established. Defendant 2 led to confession at the court below. The court below made a confession of all the matters concerning the report of this case with Defendant 1 and the tax return of this case in the court below. The above statements are persuasive in light of the circumstances of denial and confession.

Second, in order for Defendant 2 to reduce the amount of tax to be imposed by Nonindicted Co. 2 as the sale of Nonindicted Co. 1’s assets, Defendant 2 consulted Nonindicted Co. 5, who was a tax specialist, around December 2005, with the introduction of Nonindicted Co. 4, who was employed by the head of the tax office at the time, through Nonindicted Co. 4, the head of the management division of Nonindicted Co. 1’s company, and the head of the tax office at the time, consulted Nonindicted Co. 5, who was a tax specialist, on the reduction of the amount of tax to be imposed at the time, and the most interested in the amount of the total amount of tax to be imposed at the time. As such, Defendant 2 appears to have been in consultation by clarifying the actual asset value and sales amount

셋째, 피고인 2는 피고인 1로부터 인정상여로 소득세 약 30억 원, 법인세 약 20억 원가량 부과될 것이라는 의견을 듣고 피고인 1이 ‘15억 원과 세무처리에 필요한 법인인감, 관련 서류들을 모두 넘겨주면 공소외 1 회사를 양수하여 책임지고 아무런 문제 없이 세금 문제를 해결해 주겠다’는 제안을 받아 그 제안에 따랐다는 것인바, 부과예정인 정당한 세액 50억 원에 비해 피고인 1이 제시한 현실적인 부담액은 15억 원에 불과하여 그 차액이 35억 원 상당에 이르는 점, 피고인 2가 자산의 장부가액을 과대계상하여 자산처분이익을 과소신고하는 방식으로 조세를 포탈할 의도였다면 스스로 허위신고를 할 것이지 15억 원을 주면서까지 세금 문제 처리를 맡기지 않았을 것인 점, 피고인 1을 소개받게 된 목적 및 경위 등에 비추어 보면, 피고인 1의 위와 같은 세금 해결방안을 받아들여 회계장부를 비롯한 공소외 1 회사를 넘겨주었다는 피고인 2의 진술 내용은 허위로 꾸몄다고는 보기 어렵다.

Fourth, if Defendant 2 used 1.5 billion won as a loan to transfer the assets of Nonindicted Company 1 to another person by deceiving the assets, etc. of Nonindicted Company 1, and intended to have the other person bear corporate tax, etc. and to pass the tax to him/her finally due to his/her intention, he/she would transfer his/her tax relationship to the general public with respect to his/her tax law for the purpose of his/her intention, and there is no reason to transfer his/her intention to Defendant 1, who is a tax specialist with high risk of rashing.

② Defendant 1, along with Defendant 2, agreed to divide the transfer of Nonindicted Company 1 to the next generation of profits in the future. However, even if there was an agreement to do so, Defendant 1, even though there was no reason to find Defendant 2, did not have to do so, and Defendant 1, from February 7, 201 to April 4, 201, sought to Defendant 2 in Gangwon-do from February 7, 201 to April 7 to 6, 208 together with his wife and Nonindicted 1’s wife and Nonindicted 6. It appears that Defendant 1 tried to seek cooperation from Defendant 2 on his illegal tax return.

③ Defendant 1, along with the statement submitted on September 28, 201, which was the initial stage of the police investigation, received from Nonindicted Party 2’s Nonindicted Party 7’s financial statements, tax calculation table, etc. Of the above financial statements, “sales cost” was “3,860,736,550 won” and “6,058,494 won” were “6,69,578,565 won” and “the current net profit” was written in a normal condition that “6,89,578,565 won” was not written. On the contrary, the income statement attached to the corporate tax settlement statement for the year 2005, which was submitted by Defendant 1, attached to the corporate tax settlement statement, “the sales cost was either KRW 4,70,736,50, and KRW 50,” and “the amount was reduced to “the average profit of Defendant 1,604,605,650,” and “the average profit of Defendant 2605,6064,650.6.5”

④ Defendant 1 received from Defendant 2 the transfer of Nonindicted Company 1 and received accounting data, etc., along with KRW 1.5 billion, and thought that he could operate and dispose of the computer without Defendant 2’s instruction after the transfer. Since the transferee of the corporation examined not only the debt and asset status, but also the amount of tax to be imposed, and the transfer of the corporation did not pay any consideration, it appears that the above KRW 1.5 billion constitutes a consideration to handle the tax issue of Nonindicted Company 1.

(3) On the assertion of unreasonable sentencing

There are circumstances that can be considered in light of the circumstances, such as the fact that Defendant 1 had no criminal record of the same kind, the spouse to be supported by Defendant 1, and three children, and the fact that Defendant 1 was unable to have good health conditions due to urology, high blood pressure, liver diseases, etc.

However, the tax evasion amount of the corporate tax of this case is more than 1.5 billion won, the crime of this case consists of an excessive appropriation of the asset value and the method of drawing up a false account book, the tax payment of the 1.5 billion won received from Defendant 2 is limited to the amount extremely weak, the remainder is used for his own interest, and most of the remainder is used for his own interest. In full view of all the sentencing conditions including Defendant 1’s age, family relation, family relation, criminal record relation, character and conduct, environment, motive and circumstance of the crime, method and method of the crime, and circumstances after the crime, etc., it is not recognized that the sentence imposed by the court below is too unreasonable. Thus, the above assertion by Defendant 1 is without merit.

C. Defendant 2’s assertion of unreasonable sentencing

The crime of this case results from Defendant 2’s intent to evade tax even through the initial and unfair method; the amount of tax evasion of the corporate tax of this case is more than 1.5 billion won, and Defendant 2 did not pay the amount of tax evasion until the final judgment is rendered.

Meanwhile, Defendant 2 made confessions of the instant crime and reflects his mistake when it comes to the trial, Defendant 2 did not have the same criminal record, Defendant 1 and 1.50 million won for tax treatment, and Defendant 2 was obligated to pay the entire amount of evaded tax of the instant case by failing to pay taxes at all. In full view of all of the sentencing conditions, including Defendant 2’s age, family relation, criminal record, relationship, character and conduct, environment, motive and background of the instant crime, means and method of the crime, and circumstances after the crime, etc., the punishment imposed by the lower court on Defendant 2 is deemed unreasonable, and thus, Defendant 2’s above assertion is reasonable.

3. Conclusion

Therefore, since the appeal by Defendant 2 is well-grounded, the part against Defendant 2 among the judgment below is reversed pursuant to Article 364(6) of the Criminal Procedure Act and it is again decided as follows after the pleading. Since Defendant 1’s appeal is without merit, it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act.

Article 8(1)1 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. 8138, Dec. 30, 2006); Article 30 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 6 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges Yoon Sung-won (Presiding Judge)