(b) Whether the company is liable to pay the value-added tax where the person who has borrowed a construction business license executes construction works under the company name (negative);

C. In the case of the preceding paragraph, whether corporate tax and defense tax may be imposed on the company with respect to income from the construction business management (negative)

(d) The case holding that there was an error of law not applicable to the law at the time of act;

(b) Where a construction company which has obtained a construction business license lends a construction business license to another person without the direct execution of construction works and has the other person execute construction works in its name, there is no room for establishing a liability to pay value-added taxes on the supply of goods or services, unless the company provides goods or services.

C. In the case of the preceding paragraph, it is deemed that the person who actually runs a construction business and actually carried out construction works after borrowing a construction business license. Therefore, in light of the provisions of Article 3 of the Corporate Tax Act, which does not recognize exceptions such as Article 21 of the Enforcement Decree of the Income Tax Act in embodying the principle of substantial taxation, the above company, which is a mere legal title holder, is subject to corporate tax and defense tax on the income accrued from lending a construction business license, regardless of the imposition of corporate tax and defense tax on the income accrued from the lending of the construction business license, the above company shall not be deemed to have earned income

D. Since the establishment and punishment of a crime shall be governed by the Act at the time of the act, the judgment of the court below which applied Article 60 subparagraph 4 and Article 16-2 of the Construction Business Act, which was amended by Act No. 4075 of Dec. 31, 1988, after the act was committed with respect to a crime committed between January 4, 1986 and December 28, 1987, is erroneous and erroneous.

The case is remanded to Seoul High Court.

If the evidence of the first instance court maintained by the court below is examined by comparing it with the records, it can sufficiently recognize the facts constituting a violation of the Construction Business Act against Defendant 1 and 2, and it cannot be deemed that there was an error of law by misunderstanding the facts against the rules of evidence or by misunderstanding the legal principles concerning the lending of a permit for construction business, without making a proper examination on the judgment of the court below. Thus, there is

2. Determination as to the ground of appeal No. 1 by the counsel and No. 2 by the counsel (appointed)

(1) The judgment of the court below and the judgment of the court of first instance, on April 198, 197: (a) the total amount of non-indicted 1 company's corporate tax invoices and non-indicted 2, 70, 700, 700, 700, 708, 700, 700, 700, 70, 700, 700, 97, 70, 700, 97, 70, 700, 700, 97, 70, 700, 700, 700, 700, 500, 700, 700, 500, 97, 706, 97, 60, 97, 706, 97, 60, 97, 196, 197, 70, 196, 7,00

(2) However, in comparison with the evidence employed by the judgment of the court of first instance as cited by the court below, the non-indicted 1 limited partnership company or non-indicted 2 stock company (hereinafter referred to as "the above company") did not directly execute one construction work after 1985, only one construction work was contracted, and the non-indicted 1 was registered as its partner or director when he was awarded a contract for construction work in the name of the above company, and had the above company execute the construction work in the name of the above company and executed the construction work in the name of the above company. The above company borrowed the construction business license independently in the manner of granting a license for rent of 7 to 10 percent of the contract amount (hereinafter referred to as "exclusive installment"), so the above company did not purchase the construction materials from any person during the period from 1985 to 1987, while submitting the tax base of construction business and the fictitious tax invoice for the year 1985 that the defendants would have received the above input tax amount for the purpose of calculating the input tax amount, and did not constitute a disguised tax return for 1985 years.

(3) The crime of tax evasion under Article 9(1) of the Punishment of Tax Evaders Act is a crime of evading tax duties in a certain amount deemed to be committed against the State by a taxpayer. The crime of tax evasion is punishable by deeming the tax evasion of a certain amount of amount of tax that the taxpayer is deemed to be liable to pay to the State. In order to establish the crime of tax evasion, tax claims should be established upon meeting the taxation requirements under the no taxation without the law. Thus, unless the taxation requirements under the tax law are satisfied to enable the taxpayer to pay taxes, not only the tax liability is not established but also the crime of tax evasion is not established (see Supreme Court Decision 81Do2459 delivered on June 22, 1982

However, value-added tax is a tax that is subject to the supply of goods or services (Article 1(1) of the Value-Added Tax Act), and it is an independent supplier of goods or services independently for business (Article 2 of the same Act). Thus, even if the above company is a constructor who has obtained a construction business license, there is no room to establish an obligation to pay value-added tax that is subject to the supply of goods or services, unless it provides goods or construction services (Article 1(1), (3), and (5) of the same Act, and Article 2(1)1 of the Enforcement Decree of the same Act).

In addition, Article 3(1) of the Corporate Tax Act provides that "where a corporation to which all or part of income accruing from assets or business legally reverts and a corporation to which it actually accrues are different, corporate tax shall be imposed by applying this Act to the corporation to which it actually accrues," and Article 3(2) of the same Act provides that "the calculation provisions on the amount of taxable income subject to corporate tax shall apply to the substance of transaction, regardless of its name, regardless of the substance of the transaction." As a basic guiding ideology of tax law, one of the principles of imposing national tax is specified in the Corporate Tax Act and re-verifications the principle of substantial taxation as provided in Article 14 of the Framework Act on National Taxes without regard to such principle, it is necessary to declare the principle of substantial taxation under Article 7 of the Income Tax Act, but to consider the exception to the above principle as to the income accruing from the construction business operated by a person who has obtained a license under Article 21 of the Enforcement Decree of the Construction Business Act, it is not necessary to impose corporate tax on the person who has actually obtained a construction business license, separate from the above person who has actually obtained a construction business license.

(4) Nevertheless, on the premise that the above companies are liable for the payment of value-added tax, which independently supplied construction services on their business basis, the court below found that the Defendants evaded value-added tax by submitting the processing purchase tax invoice along with the input tax return when they reported the tax base and the amount of tax payable by the above companies to the government, and found the Defendants to have evaded value-added tax by receiving the input tax deduction. In addition, as to corporate tax and defense tax, the judgment of the court below should be reversed without any need to determine the grounds for appeal as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which affected the conclusion of the judgment, without any need to determine the grounds for appeal as to the difference between the defense counsel as to the grounds for appeal on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, because the Defendants reported the tax base and the amount of tax on corporate tax and defense tax of the above companies and submitted the processing purchase tax invoice to the government.

3. Determination ex officio on the violation of the Construction Business Act

The establishment and punishment of a crime shall be based on the punishment rate at the time of the act (Article 12(1) of the Constitution, Article 1(1) of the Criminal Act). However, the judgment of the court below is not erroneous in the application of laws, and it is clear that such illegality has affected the conclusion of the judgment, and the part of the judgment of the court below on the violation of the Construction Business Act among this point shall also be reversed, since Article 60 subparag. 4 and Article 16-2 of the Construction Business Act, amended by Act No. 4075 of Dec. 31, 198, was applied after the act was committed against Defendant 1 and 2 committed between January 4, 198 and December 28, 197.

4. Therefore, the part of the judgment of the court below concerning the Defendants shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Jae-sung (Presiding Justice)