2. Defendant 3 shall be punished by imprisonment with prison labor for 5 years and by a fine of 130,000,000,000 won, and Defendant 4 by imprisonment for 4 years and a fine of 80,000,000 won.

3. In a case where Defendant 3 and 4 did not pay each of the above fines, the period calculated by converting KRW 200,000,000 to Defendant 3 as one day, and 100,000,000 to Defendant 4 as one day converted to one day shall be confined to each of the above Defendants in the workhouse.

4. The 337 days under detention prior to the pronouncement of the original judgment shall be included in the above imprisonment with prison labor for Defendant 3 and the 282 days shall be included in the above imprisonment with prison labor for Defendant 4.

5. To order the defendant 3 and 4 to make provisional payment of the amount equivalent to the above fine.

6. Defendant 3 and 4 shall be confined in a workhouse until the above fine is paid in full.

7. The prosecutor's appeal against the defendant 1 and 2 is all dismissed.

A. Defendant 3

(1) misunderstanding of facts and misapprehension of legal principles

㈎ 제비무역 주식회사 및 주식회사 동화금은을 통한 조세포탈에 의한 특정범죄가중처벌등에관한법률위반(조세)의 점에 대하여

Defendant 3 did not directly intervene in the operation of the company's business, except for the business profits of the company in the course of operating the name gold bullion (hereinafter referred to as "the name gold"), and did not engage in the bomb business, and did not participate in the distribution or distribution of taxes evaded by the bomb, and in collusion with the above bomb, Defendant 3 convicted Defendant 3 of this part of the charges by misapprehending the legal principles, or by misapprehending the legal principles, the lower court convicted Defendant 3 of this part of the charges, although he did not participate in the crime of evading value-added tax (in particular, since the above Defendant sold the right to operate the bombs Co., Ltd. (hereinafter referred to as "bombs") to Nonindicted 3 in early 204.

㈏ 부가가치세 부정환급에 의한 특정범죄가중처벌등에관한법률위반(조세)의 점에 대하여{주식회사 에이원글로벌을 통한 부가가치세 부정환급에 의한 특정범죄가중처벌등에관한법률위반(조세)의 점은 제외}

① Although Defendant 3 received the refund of value-added tax through gold bullion exporters as indicated in the lower judgment, it cannot be deemed as “illegal refund” of the tax prohibited by the Act, since it purchased the gold bullion exporters and exported the value-added tax after being traded and collected, and received the refund of the value-added tax collected according to the tax invoice that was received. ② Since the gold bullion exporters were operated by Nonindicted 4 and the said Defendant did not actually control and operate the said companies, the lower court convicted the Defendant of this part of the charges by misapprehending the legal doctrine or by misapprehending the legal doctrine.

㈐ 피해자 주식회사 성민지앤에스에 대한 특정경제범죄가중처벌등에관한법률위반(횡령)의 점

Defendant 3 did not actually operate Sung C&S Co., Ltd. (hereinafter “S”), and did not have divided profit margin of 3.6 billion won in the corporate account owned by Sung C&S through the instant tax-free gold metals transaction, and thus, the above Defendant cannot be liable for the crime of embezzlement against Sung C&S, the lower court erred by misapprehending the legal doctrine, or by misapprehending the legal doctrine, thereby convicting the Defendant of this part of the facts charged.

(2) Unreasonable sentencing

The above defendant did not have the same criminal records and actively cooperate with investigation authorities to clarify the appearance of the crime of this case, and the above defendant embezzled the money of an enterprise that has led to the evasion of value-added tax, which is virtually a company that is a mere one of the above defendants, and the above defendant repents his wrongness in depth, etc. In light of the various sentencing conditions of this case, the judgment of the court below against the above defendant [the judgment of the court of first instance [the judgment of the court of first instance [the judgment of the Seoul Western District Court 2004Da419, 2005Da59, 68, 200, 200, hereinafter the same shall apply] and the judgment of the court of second instance (the Seoul Central District Court 2006Da1142, Jan. 12, 2007; hereinafter the same shall apply] are unfair.

(b) Defendant 4 [Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)]

Defendant 4 found Defendant 4 guilty of this part of the facts charged on the ground that, although Defendant 3 did not actually operate or have been involved in the operation of Seongbuk S&S or Hyundai Gold Co., Ltd (hereinafter “the present price”), did not have received any benefits from the said gold bullion transaction from Defendant 3 or Nonindicted 2 in collusion with Defendant 2 and did not have received any distribution of the said benefits, etc., the said embezzlement was committed, or was involved therein, the lower court found Defendant 4 guilty of this part of the facts charged, on the ground that, by misapprehending the facts, the statements made by Nonindicted

(c) Prosecutors;

(1) misunderstanding of facts and misapprehension of legal principles

㈎ 피고인 1에 대하여

Defendant 1, as the representative director of Defendant 3, was in practical charge of the company’s management duties under the direction of Defendant 3, and was in collusion with the representative of Defendant 3, SPS and E. E.A., the exporter company, and Defendant 3, in order to evade value-added tax or receive illegal refund. As such, Defendant 1 was liable for committing a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax). However, the lower court acquitted Defendant 1 of all the charges on this part on the ground that there was no evidence to acknowledge that Defendant 1 was involved in the said tax evasion or illegal refund in collusion with Defendant 3, etc., by misapprehending the legal doctrine.

㈏ 피고인 2 및 피고인 3의 특정범죄가중처벌등에관한법률위반(관세), 관세법위반의 점에 대하여

The pre-sale price operated by the above Defendants was exported from July 30, 2003 to November 28, 2003 through various stages on the same day and received a simplified fixed amount refund. While the above Defendants knew of the above facts, they were fully abolished the simplified fixed amount refund system for the export of gold products since December 1, 2003, and when the method of refunding customs duties was integrated into an individual refund system, they were abused the permit point (the fact that there is no rubber in the import declaration corresponding to the export goods that received a simplified fixed amount refund), and subsequently, it was difficult to find the Defendants not guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes on the ground that the above Defendants did not receive a double refund of customs duties (the fact that the above Defendants were subject to a simplified fixed amount refund because they were affixed with the above import declaration corresponding to the export goods that received a simplified fixed amount refund).

㈐ 피고인 3, 4의 성민지앤에스를 통한 조세포탈에 의한 특정범죄가중처벌등에관한법률위반(조세), 피고인 4의 현대금은을 통한 조세포탈에 의한 특정범죄가중처벌등에관한법률위반(조세)의 점에 대하여

Defendant 3 and 4 shall abuse the tax-free gold bullion system from the beginning to purchase a large quantity of tax-free gold bullion in a short time, and sell it in whole at the price lower than the market price, thereby withdrawing the remaining amount excluding the purchase price from the sale price included in the value-added tax. Such a series of acts by the above Defendants shall clearly constitute “an act of deception or other unlawful act that makes it impossible or significantly difficult to impose and collect taxes” in light of the protected legal interests of the crime of tax evasion, the purpose of punishment, the intent of the defendants, the transaction status of the tax-free gold bullion, objective facts, etc., but the lower court acquitted the remaining Defendants of this part of the charges on the grounds that it is difficult to view that the aforementioned Defendants, by misapprehending legal principles, did not have committed deceptive or other unlawful act that makes the imposition and collection of taxes impossible or significantly difficult.

㈐ 피고인 3의 에이원글로벌을 통한 조세부정환급에 의한 특정범죄가중처벌등에관한법률위반(조세)의 점에 대하여

Defendant 3, in collusion with Nonindicted 5, the representative director of the Ewon Global, for the purpose of evading the value-added tax, purchased the tax-free gold bullion at a price lower than the purchase price, and exported the tax-free gold bullion to foreign countries at a price lower than the purchase price upon being refunded the value-added tax, and converted the tax-free gold bullion into the tax-free gold bullion system from the beginning to the tax-free gold bullion in formality without intent to distribute the tax-free gold bullion normally, and then made the refund of the value-added tax by exporting the tax-free gold bullion formally, it is not reasonable to say that the above Defendant’s series of acts constitutes a case where taxes are refunded by fraud or other unlawful acts in light of the protected legal interest of the tax offense, purpose of punishment, intent of the Defendant, trade situation of the tax-free gold bullion, objective fact-finding, etc., but the lower court found the Defendant guilty of this part of the charges on the ground that the above Defendant purchased the tax-free gold bullion amount through Ewon Global global, exported the value-added tax,

(2) The judgment of the court of first instance on the conviction of Defendants 3 and 4

The crime of embezzlement by the above Defendants is a planned crime committed as a tool to evade value-added tax, and the nature of the crime is extremely poor, the amount of embezzlement reaches a large amount, and the amount of profit acquired as a crime should be imposed concurrently as a fine, but it can be possible to achieve the purpose of punishment such as the prevention of recidivism, etc. in light of the various sentencing conditions in this case.

2. Judgment of party members

A. Ex officio determination (Defendant 3's part)

(1) Prior to the judgment on the grounds of appeal by the above defendant 3, the court of original judgment shall examine the defendant 3 ex officio; the court of original judgment shall examine the defendant 3 as Seoul Western District Court Decision 2004Da419, 2005Kahap59, 68, 200 (each consolidation) and 2006 Mahap1142 (each consolidation) and the Seoul Central District Court Decision 2006Dahap1142 (each consolidation), respectively; the defendant shall be sentenced to imprisonment for 2 years and 6 years; and the defendant shall be sentenced to imprisonment for 6 years and 60 billion won; the prosecutor filed an appeal against the above two appeals; the court of first and second trials decided to jointly examine the above two appeals cases; since each of the above defendants is concurrent crimes under the former part of Article 37 of the Criminal Act, the court below's judgment against the defendant shall be reversed in that it is within the single term of punishment imposed on the defendant under Article 38 (1) of the Criminal Act.

(2) In addition, the prosecutor filed an application with the court of first instance for the amendment of the indictment against the above defendant, among the facts charged against the above defendant in the judgment of the court of first instance, as to the tax evasion through sexual C&S, EB global, each violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax), and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax), and the second court's amendment of the indictment to the indictment against the above defendant. The above facts charged against the above defendant was modified in the trial due to the party's permission.

(3) However, despite the above reasons for ex officio destruction, the above defendant and prosecutor's assertion of misunderstanding of facts and misapprehension of legal principles are still subject to the judgment of this court, and we will review below.

B. Determination on the grounds of appeal by the prosecutor on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax) by tax evasion through Defendant 3 and 4 Sung C&S

(1) Summary of this part of the facts charged

피고인 3, 4는 명주금은의 대표이사 피고인 1, 성민지앤에스의 대표이사 공소외 1 등과 순차적으로 상호 공모하여, 금융시장 및 금지금(금괴 또는 골드바 등 원재료 상태로서 순도가 1,000분의 995 이상인 금) 거래의 활성화를 도모하기 위하여 2003. 7. 1.부터 2005. 6. 30.까지 한시적으로 일정한 자격을 갖춘 금지금 도매업자 등이 면세거래추천자로부터 면세추천을 받은 금세공업자 등에게 금지금을 공급하는 경우 부가가치세를 면제하되, 그 외의 사업자에게 금지금을 공급하는 경우에는 이를 공급받은 사업자로부터 부가가치세를 거래징수하여 과세기간 종료 후 25일 이내에 사업장 관할세무서장에게 부가가치세 과세표준 신고를 제출한 후, 위와 같이 거래징수한 부가가치세를 납부하도록 하는 금지금에 관한 부가가치세 과세특례제도가 시행되고 있음을 기화로, 국내 최대의 금도매시장인 속칭 ‘종로금시장’에서는 2,000여개가 넘는 금지금 관련 업체들이 위 과세특례제도를 악용하여 각 업체의 자금력, 면세금지금 취급자격 여부, 위 시장에서의 신용도 등에 따라 수입ㆍ도매ㆍ수출까지의 거래라인에 각자의 위치를 점하고, 수입업자는 부가가치세 면세금지금을 수입한 다음 일정한 마진을 남기면서 1차 도매업체에 면세로 매출하고, 1차 도매업체(속칭 도관업체)는 일정한 마진을 남기면서 2차 도매업체인 폭탄업체(국내 유통단계에서 직접 부가가치세를 포탈하고 법인자금을 횡령하여 도주하는 역할을 하는 법인을 말함. 이하 같다)에 면세로 매출하고, 폭탄업체는 면세로 매입한 금지금을 과세로 전환하여 매출하면서 매출처로부터 부가가치세를 거래징수하고, 3차 도매업체(속칭 도관업체)는 매입한 금지금에 일정한 마진을 남기면서 4차 도매업체(속칭 바닥업체)에 과세로 매출하고, 4차 도매업체는 수출업체에 과세로 매출하거나 직접 수출하여 부가가치세를 환급받는 일련의 거래과정에서, 폭탄업체 운영자는 자신들로부터 최종적으로 금지금을 매입한 수출업체를 비롯한 과세사업자가 거래징수당한 부가가치세를 매입세액으로 공제받거나 환급받는 것을 가능하게 함으로써 부가가치세 포탈로 인한 수익을 최종적으로 실현할 수 있도록 하기 위하여, 면세금지금 거래승인을 취득한 회사를 인수하여 경제적 자력 없는 사람 등을 대표이사로 취임하게 하고, 위 회사를 통해 피고인 3 등의 수입업체 또는 위 회사의 전 단계 매입처로부터 면세금지금을 매입하여 모두 매입가격보다 낮은 가격으로 과세금지금을 공급하는 등 구조적으로 손해를 볼 수 밖에 없는 거래를 반복함으로써 부가가치세를 납부할 수 없는 거래를 한 후, 처음부터 부가가치세법에 의한 과세표준과 납부세액 등을 신고하지 아니하거나, 또는 신고하더라도 세무당국의 징수를 불가능하게 하기 위해 위 법인계좌에 남아 있는 거래징수한 부가가치세 납부세액 및 이득금을 거래 당일 대부분 현금으로 인출하여 자금추적을 어렵게 한 후 세무당국의 세무조사 및 범칙조사가 착수되기 직전 영업을 폐업하고 부가가치세를 납부하지 아니하는 방법으로 포탈하고, 위 피고인들이 실질적으로 지배ㆍ운영하는 법인 또는 같은 방식의 금지금 거래를 하고 있는 자들이 배치해 놓은 위 폭탄업체의 직ㆍ간접적 매입처와 매출처로 하여금 그 거래 물량, 시기, 가격, 상대방, 이득액 등을 미리 정해주고, 그 정해진 순서에 따라 거래를 진행하게 하며 세금계산서와 금지금 운송 관련 거래 증빙 등 거래의 외형을 갖추게 함으로써 수입업체, 수출업체, 바닥업체와 같은 속칭 전주세력과 폭탄업체와의 직접적인 거래를 단절시켜 세무당국이 폭탄업체 세무조사 및 범칙조사시 위 전주세력까지 조사가 확대되지 않도록 하는 속칭 쿠션역할을 하게하고, 수출단계에서는 위 피고인들이 직ㆍ간접적으로 지배ㆍ운영하거나 같은 방식의 금지금 거래를 하고 있는 자들이 배치해 놓은 6～8단계의 도관업체를 통해 마치 순차적으로 정당하게 금지금을 매입하여 수출하는 것처럼 가장하나, 위와 같이 정해진 거래라인에 포진해 있는 폭탄업체가 처음부터 부가가치세의 징수를 불가능하게 하거나 현저히 곤란하게 할 의도로 거래상대방으로부터 징수한 부가가치세액 상당 전부를 유보하지 아니한 채 사기 기타 부정한 행위로 부가가치세를 포탈하기로 마음먹고, 2003. 10. 1.부터 2003. 11. 21.까지 성민지앤에스 사무실에서, 제1 원심 판시 별지 (주)성민지앤에스 범죄일람표 (2)의 면세금지금 매입내역 기재와 같이 14개 업체로부터 376회에 걸쳐 면세금지금 24,153kg을 362,714,964,263원(부가가치세가 면제된 금액)에 매입한 후, 같은 기간 동안 17개 업체에 333,038,920,645원(부가가치세를 제외한 금액)에 부가가치세 10%를 포함하여 366,342,812,710원에 과세금지금으로 공급하여 부가가치세 33,303,892,065원 상당을 징수하였음에도, 교부받은 부가가치세를 징수당하지 않으려고 성민지앤에스의 계좌에 입금된 부가가치세 납부세액이 포함된 3,627,848,447원 상당을 공소외 1 등에게 지시하여 거래가 끝날 때마다 당일 전액 인출하는 방법으로 부가가치세 징수를 불가능하게 하면서 이를 납부하지 아니하고 2003. 11. 21. 사실상 폐업하는 방법으로 2004. 1. 25.이 경과함으로써 2003년도 제2기분 부가가치세 33,303,892,065원을 포탈하였다.

(2) The judgment of the court below

The court below found the Defendants not guilty of this part of the facts charged on the ground that the above Defendants sold the tax-free gold bullion as above and issued the tax invoice, and accordingly reported the amount of the value-added tax payable by Sung C&S, even if they did not pay the returned tax amount, or there was a deceptive scheme or other unlawful act that makes it impossible or considerably difficult to impose and collect taxes due to the fact that the Defendants actually consumed and discontinued the assets of the corporation that is the taxpayer without paying the returned tax amount, and it is difficult to deem that there was any fraudulent or other unlawful act that the Defendants evaded value-added tax as stated in this part of the facts charged.

(3) Determination of party members

㈎ 기초사실

In full view of the evidence duly adopted and examined by the court below, the following facts can be recognized.

(i)basic behavior of a gas supply business;

(1) Where gold bullion wholesalers, etc., who meet certain qualifications from July 1, 2003, supply gold bullion to tax-free business operators, etc. upon recommendation of tax-free business operators, the so-called "tax-free gold bullion business" formed to evade value-added taxes by abusing this system in a paper gold market shall also be the same as even before June 30, 2003: Provided, That the qualification requirements and procedures for the business operators capable of handling duty-free gold have been strengthened; hereinafter the same shall apply) "import business operators ? ? ? ......... The distribution stage of the gold bullion-free business operators, such as the gold bullion-free business operators ?... The distribution stage of the gold bullion-free business operators, which is computed by deducting the sales proceeds from the original business operators from the sales proceeds of the gold bullion-free business operators, shall be paid in the order from the original business operators to the revenue-free business operators, and eventually, the sales proceeds of the gold bullion-free business operators, which are then distributed within 10% from the final business operators selling gold bullion.

② In order to prevent disputes or incidents that occur between the parties that interfere with prompt trade and payment in the course of a transaction through multiple stages, the same owner shall operate both the exporting company and the importing company at the same time, and the primary company and the cood company that directly trades with the coodan company shall be placed at the company with substantial control or trust of the former owner, and the quantity and unit price of the transaction shall be determined by the former owner at each transaction stage, and so, the latter is made within most series of transactions leading from the importing company to the exporter to maximize its profits, and thus, it is most cases where the latter is directly exported from the import company, not every transaction stage but every transaction stage.

(3) An operator of a heavy coal business shall be distributed profits from the former owner instead of imposing taxes after undergoing a tax investigation and undermining the risk of criminal punishment. The operator of a heavy coal business shall again employ a reasonable amount of remuneration and a nominal representative (the latter president) in order to transfer such risks to the head of the branch office and conceal the existence of the actual operator.

④ If a company operates its business within a short period and closes its business without paying value-added tax, it is also initiated a tax investigation with a company involved in a transaction with a company involved in a trade with a company involved in a trade with a company involved in a trade with a company involved in a trade with a company involved in a trade with a company involved in a trade with a company involved in a trade with a company involved in a trade with a company involved in a trade with a company involved in a trade with a company involved in the trade. The former owner artificially places several involved companies in the trade process to prevent tracking, and the representative of each company involved in the business involved in the trade will face the risk of undergoing a subsequent tax investigation. As such

2) Details of the instant transaction by Sung C&S

① on November 20, 201, SPPP was established with the representative director as non-indicted 1, and wholesale and retail business. On July 2003, it acquired approval for trading tax-free gold bullion from the head of the competent tax office, and purchased on October 1, 2003 at 6,225,110,630 tax-free gold bullion 420 g from 7 companies, including Naumd Co., Ltd., and purchased at 6,287,715,90,000 (excluding value-added tax) and purchased at 36,364,000 won on the same day, including 10% of value-added tax, and purchased at 36,363,000,000 won on the same day (excluding value-added tax), and purchased at 36,287,589,0000 won on the same day, 236,0146,063,000-7,063.

② SP issued the sales tax invoice of value-added tax to the sales office at each of the above transactions, and reported the amount of value-added tax payable to the competent tax office (Seoul Western District Prosecutors’ Office 2004 type No. 52371, No. 2, No. 624, No. 670 of the investigation records of the Seoul Western District Prosecutors’ Office). However, sales of the above non-taxation amount and deposits into the corporate account of Seongdong C&S, total of 3,602,481,00 won, including the amount of profit (the difference between the sales price including value-added tax and the purchase price) generated from the above transactions, shall be immediately withdrawn and paid immediately to Defendant 4, and some of the amount shall be paid to Defendant 3 and Nonindicted 1, who forms part of the value-added tax payment period, and it was impossible to collect value-added tax by making almost no balance of the corporate account before January 25, 2004, which is the value-added tax payment period.

㈏ 피고인 3, 4의 범행에의 관여 여부

공소외 1의 검찰에서의 제1회 피의자 진술(서울중앙지방검찰청 2005형제93626호 수사기록 제134쪽 이하), 원심 증인 공소외 6의 진술 등 당심 및 원심이 적법하게 채택하여 조사한 증거들에 의하면, 성민지앤에스의 대표이사인 공소외 1은 고향친구인 공소외 7을 통하여 그 형인 피고인 3을 알게 되었는데, 피고인 3에게 성민지앤에스의 명의로 폭탄영업을 하겠다고 제의하였고 이에 피고인 3이 ‘네가 그렇게 영업을 해 준다면 약 10억 원 정도는 손에 쥘 수 있도록 해 주겠다’면서 (주)보광코리아를 운영하는 피고인 4 등 여러 사람을 소개하여 주어 이들과 폭탄거래를 하기 시작한 사실, 공소외 1은 위와 같이 면세금지금을 구입하여 과세금지금으로 매출하는 거래가 끝나는대로 성민지앤에스의 법인계좌에 남아 있는 금액을 모두 현금으로 인출한 뒤 피고인 3 등에게 전달하여 준 사실, 위 폭탄영업 당시 공소외 1에게 매입처 및 매출처를 지정하여 주는 등 업무오더를 내린 사람은 피고인 3으로부터 소개받은 피고인 4, 8, 강 사장(원래 진짜 성은 김씨), 안 사장 등인 사실, 위 폭탄영업으로 얻은 판매이익 중 12-13억 원 가량은 피고인 4 등 중간거래업체 운영자들에게 분배되었고 나머지 22-23억 원 가량 중 공소외 1이 7억 5,000만 원을 사용하고 약 15억 원은 피고인 3에게 전달된 사실, 피고인 3이 실제로 운영한 명주금은의 경리이사였던 공소외 6은 공소외 1이 위와 같은 거래로 인하여 번 돈을 피고인 3에게 전달하는 장면을 2～3회 목격하기도 한 사실( 2006노63호 공판기록 제199쪽)을 인정할 수 있다( 공소외 1은 그 후 검찰 조사 및 원심 법정에서 일부 진술을 번복하였으나, 위 진술번복의 이유가 석연치 않고 검찰에서의 1회 진술은 일관성 및 구체성을 띠고 있어 신빙성이 있다고 할 것이다).

As seen in the above facts, in full view of the background and contents of the business of Sung C&S and the degree of involvement of Defendants 3 and 4 as seen above, it is reasonable to view that Defendants 3 and 4 led or participated in the above-mentioned bomb operation in collusion with Nonindicted 1, etc.

㈐ ‘사기 기타 부정한 행위’로써 조세를 포탈하였는지 여부

1) The crime of tax evasion under Article 8(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 9(1) of the Punishment of Tax Evaders Act is the legal interest protected by the law of securing national tax revenues through appropriate imposition and collection of taxes. It is established by fraudulent or other unlawful means, under the premise that the taxation claim is specifically determined by the taxpayer’s duty return or the tax authority’s disposition, etc., and thus, in cases where the determination of the tax claim is impossible or considerably difficult due to fraudulent or other unlawful acts, there is no doubt that the collection of the tax is impossible or considerably difficult, thereby infringing the State’s tax revenue. Furthermore, even though it does not interfere with the determination of the tax amount due to a proper tax return, etc., the crime of tax evasion under Article 9-3 of the Punishment of Tax Evaders Act can be established even in cases where it was caused by fraudulent or other unlawful acts to prevent the collection of the tax within the expiration date of the crime of tax evasion under Article 9-3 of the Punishment of Tax Evaders Act.

However, when a legitimate final and conclusive determination of tax is made, various institutional devices are installed to satisfy tax claims, such as expansion of taxpayers under Article 38 of the Framework Act on National Taxes, guarantee of physical tax liability and priority of national taxes on general claims under Article 42 of the same Act, and procedure for compulsory collection of national taxes through disposition on default. Meanwhile, Article 12(1) of the Punishment of Tax Evaders Act provides that when a person who occupies a delinquent taxpayer or a delinquent taxpayer’s property returns, leaves the property, omits, omits, or enters into a false contract for the purpose of evading or evading taxes, it shall be subject to separate punishment for illegal acts such as delinquent taxpayers. In order to constitute a crime of tax evasion, where the final and conclusive determination of tax is not hindered and only impossible or considerably difficult to collect taxes, reasons why it is impossible or considerably difficult to collect taxes, degree thereof, etc. from the beginning, and where most of the delinquent taxpayer or a delinquent taxpayer’s property is substantially able to file a return on tax base by means of fraud or other unlawful acts from the beginning, and thus, most of the tax bases or other unlawful acts should be determined solely on the basis of tax base.

2) As seen in the above basic facts, comprehensively considering the process of purchasing and selling SP gold bullion, transaction period or time, purchase and sale price, use of sales marginal profit, closure circumstances, etc., the above transaction method can only be seen as losses on the premise of the payment of legitimate tax from the beginning. Ultimately, the transaction collection from the counter-party to the transaction is intended, while the tax authority can find that the amount equivalent to the value-added tax, which is exempted from the payment due to the closure of business, was the source of profit and the motive of the transaction that can be presented in the transaction, and the tax amount was determined normally by issuing and delivering the tax invoice, and submitting the tax base and tax return to the above Defendants, even if the tax payer who purchased gold bullion from the above Defendants received or refunded the input tax collected from the above Defendants as the deduction or refund of the input tax collected from the above Defendants, and thus, it does not mean that the actual reduction of tax revenue or losses incurred by the National Treasury, and thus, it is considerably difficult for the said Defendants to collect the value-added tax from the whole or any other unlawful act.

3) Nevertheless, the court below erred in finding the Defendants not guilty of this part of the facts charged on the ground that it is difficult to deem the remaining Defendants’ above acts of misunderstanding facts or misunderstanding legal principles to have evaded taxes by fraud or other unlawful acts, and therefore, the Prosecutor’s appeal on this part is justified.

C. Determination on the grounds for appeal by the prosecutor on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Taxes) by the unlawful refund of taxes through Defendant 3’s transfer global level

(1) Summary of this part of the facts charged

Defendant 3, in collusion with Non-Indicted 5, etc. of Lee Won Global Representative, he evaded value-added tax by fraud or other unlawful act through the gold bullion b. (1) above, and the above defendant, etc. who finally purchased gold bullion distributed by the b. (1) shall receive refund equivalent to the value-added tax amount, but he is in a systematic transaction structure in which ultimate profits are generated from the above unlawful trade, so he is willing to obtain criminal proceeds by being unlawfully refunded by the method of pretending normal trade as above, etc. on July 23, 2003, Non-Indicted 5, upon the defendant 3's instructions, purchased 1,310,576,00 won from LD Metal, and filed an export declaration with Seoul Customs Office at the Gangnam-gu Seoul on July 24, 2003, and submitted 105,000 won of value-added tax on July 25, 2003 to 30,000 won of value-added tax to 105,005 won of value-added tax on July 24, 94, 2013.

(2) The judgment of the court below

On the other hand, the court below found Defendant 3 not guilty of this part of the facts charged on the ground that there is no evidence to acknowledge that Defendant 3 conspired to participate in the act, even if Defendant 3 was unlawfully refunded the value-added tax, if it purchased a tax ban amount, and then exported the value-added tax, and received a refund of the value-added tax collected according to the tax invoice legitimately delivered.

(3) Determination of party members

㈎ 기초사실

In full view of the evidence duly adopted and examined by the court below, the following facts can be recognized.

① On December 11, 2001, Samsung Gold Co., Ltd. (hereinafter “Tsung”) on July 23, 2003. Samsung Gold Co., Ltd. (hereinafter “Tsung”). The representative director is Nonindicted Co. 9, and the person who actually operated the above Co., Ltd. is Nonindicted Co. 4, 100 g of 1,310,576,00 won (including the input tax amount) were purchased on 40 g of 5 g of 5 g of 5 g of 5 g of 5 g of 5 g of 5 g of 5 g of 5 g of 5 g of 5 g of 5 g of 5 g of 5 g of 1,31,50 g of 40 g of 5 g of 5 g of 5 g of 203 g of 5 g of 40 g of 5 g of 2003.

② Nonindicted 5 embezzled the profits accrued from the above export transaction (such as the purchase price lower than the purchase price, excluding the value-added tax, but the purchase price of value-added tax was refunded by the State) from the AB global corporate account at which the above export price was deposited by Nonindicted 5, thereby withdrawing the purchase price of value-added tax, and delivering it to Defendant 3, etc.

㈏ 피고인 3의 가담 여부

In light of the following circumstances acknowledged by the court below and the evidence duly adopted and examined, ① Defendant 3 had his defense counsel for 40 minutes during the third examination of suspect, and had his defense counsel for 40 minutes during the examination of suspect, and had Nonindicted 5 provided a legal entity with KRW 50 million and had Nonindicted 5 do so. On December 2003, 203, Nonindicted 3 stated that “The above global financial statements were made by Nonindicted 3 to the investigation agency for 450 million because the capital increase was necessary to operate as gold bullion importer,” and that “The above global financial statements were made by Nonindicted 40 million won by Nonindicted 5 with his defense counsel for 40 minutes during the third examination of suspect, and that Nonindicted 3 had no more than the aforementioned global financial statements made by the Seoul District Court for 206 type 12010 and No. 500 won, and that there was no more objective evidence for its operation than the above global financial statements made by Defendant 3 to the investigation agency.”

㈐ ‘사기 기타 부정한 행위’로써 부가가치세를 환급받았는지 여부

1) According to the evidence duly adopted and examined by the court below and the court below, gold bullion business is supplied as tax-free until the normally imported gold bullion business is supplied as above. The company supplied the gold bullion at a price lower than the purchase price and collects the value-added tax from the counter-party. In order to not pay the value-added tax, even if it does not report the tax base and the tax amount to be paid under the Value-Added Tax Act, or if it is declared, it is impossible to collect the balance in cash, and it is closed, and then the exporter purchased the gold bullion from the counter-aducing company or the counter-subsidiary company that purchased the gold bullion prohibited from the counter-added tax and then becomes entitled to the value-added tax from the country after the purchase of the gold bullion. In light of the structure and source of the gold bullion business, it can be recognized that the exporter finally purchased the gold bullion business through the above series of transactional transactions, and if it is deemed that the exporter received the refund of the value-added tax through the counter-purchase company's purchase of the gold bullion business profits in the above process.

2) In light of the above legal principles, dynamics actually operated by Defendant 3 among those that are subject to the refund of value-added tax, among the fact that Defendant 3 received the above tax-free gold bullion through the above tax invoices, etc., the pre-sale gold (Defendant 3 imported the tax-free gold bullion from the pre-sale to the middle, and transferred it to the middle, which is the floor company through the wide carbon company, the pre-sale gold, which was the pre-sale. Although the pre-sale gold was the original importer, it is stated that the pre-sale gold was the floor company from December 3, 2003, but the pre-sale gold was the pre-sale business entity, the pre-sale gold was paid the value-added tax by exporting the gold bullion purchased from the pre-sale 30 [the pre-sale 30 [5] No. 143,256,000 won from November 10, 203, the pre-sale gold bullion purchase amount of the pre-sale tax amount of the pre-sale gold bullion 3030,20.4,250.7.3

However, as to the portion of Samsung Metal which was refunded the value-added tax by exporting the gold bullion purchased from ELM on the ground that it was refunded the value-added tax [the portion of the refund from 1 to 29, 31, 32, 34 through 46 (the total amount of KRW 2,789, 702, 965) until September 5, 2003] among those for which ELM was refunded the value-added tax, Defendant 3 had consistently denied the purchase price of Samsung Metal from ELM to the original appellate court, and Defendant 3 had no other evidence to acknowledge the purchase price of Samsung Metal from ELM to the above global gold bullion or from ELM to the above global gold bullion that it was difficult to view that there was no other evidence to acknowledge the purchase price from ELM or from ELM to the above global gold bullion or from the above global gold bullion's sales price to the above global gold bullion's sales price.

Therefore, in light of the gold bullion trade structure at the time, etc. in the gold bullion market, although Defendant 3 had been aware that part of the gold bullion purchased from Samsung F&D or LD metal had already been evaded from value-added tax through the heavy coal company, at least, Samsung F&D or all gold bullion purchased from ELD were evaded from value-added tax through the heavy coal company, and Defendant 3 was aware of such fact and received value-added tax by using it in this case without any evidence to deem that the value-added tax was refunded (for example, Samsung F&V or LD metal is not the heavy coal company, but the normal gold bullion of the company supplied the low value for the reason of temporary shortage, etc. while paying the value-added tax, and Defendant 3 stated that the Samsung F&D or LD metal is unrelated to the heavy coal company.) Defendant 3 purchased from the above Samsung F&D or LD metal and received the value-added tax after being traded from the above Samsung F&D and then received it, and it constitutes an unlawful act of fraud or other tax collection.

On the other hand, as the above defendant set the volume, time, price, counterpart, amount of profit, etc. of gold bullion transactions to exporters in advance, and transaction is conducted in accordance with the order of set, the tax invoice prepared and issued by the exporter company in the process of purchasing the exported goods by the above defendant who is the former owner of the taxable income, profit, calculation, act, or transaction is not the exporter but the former owner of the export company. The above defendant asserts that the value-added tax was not unlawfully refunded by submitting a false tax invoice as above. However, although the plaintiff purchased and exported the gold bullion from Samsung F&C, etc., the former tax invoice cannot be deemed to be false as long as the name of the person who received the gold bullion in the tax invoice after purchasing the gold bullion from E.S. is the former global corporation, and the prosecutor raised a prosecution that the above tax invoice was committed in collusion with the above global representative director of E.I.S., and there is no reason for the prosecutor's assertion that the above transfer of the gold bullion was attributable to the above global corporation.

3) Therefore, among this part of the facts charged, the portion of the refund of value-added tax on the portion of the purchase of gold bullion from YD, Samsung, and ELD metal shall be found innocent, so this part of the appeal by the prosecutor is reasonable within the above recognition scope (However, the prosecutor shall institute a public prosecution on the grounds that the total amount of the tax refund in 2003 and 2004 exceeds one billion won. Of the convicted portion, the total amount of the tax refund in 2004 among the tax refund in 2004 is more than one billion won, so the same Act can be applied, but the tax refund in 2003 cannot be applied by the same Act because it falls short of five hundred million won, which is the lowest amount applicable by the same Act, and the tax refund in 2003 should be applied by the same Act, and the rate under Article 9 (1) 3 of the Tax Punishment Act).

D. Judgment on the grounds of appeal by the prosecutor on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) by tax evasion through Defendant 4

(1) Summary of this part of the facts charged

Defendant 4, as an actual operator of tax-free gold bullion 12, Nonindicted 13,2, and 14, the actual operator of the above company, who is the representative director of the said company, in collusion with Nonindicted 13, 14, and 13, on September 203, 15, Nonindicted 12, who is not capable of paying the value-added tax, as the representative director, shall make the processed tax invoices issued through Nonindicted 16, and shall obtain approval of the tax-free gold bullion trade on January 204, 204, 14 through 10,000 won for the total amount of value-added tax (excluding the value-added tax amount of KRW 5,00,000,000 for KRW 16,000,000,000 for KRW 16,000,000,000,000 won per 16,0000 won, and 16,06,06,000).

(2) The judgment of the court below

The court below found the Defendant not guilty of this part of the facts charged on the ground that, since the Defendant, etc. issued a tax invoice on February 16, 2004 when selling gold bullion more than 20 companies, it is difficult to view that there was a deceptive scheme or other active act that makes it impossible to impose and collect taxes or making it considerably difficult for the Defendant to impose and collect taxes due to the mere fact that the Defendant, etc. actually consumed and discontinued the assets of the taxpayer corporation without simply filing a tax invoice when selling gold bullion, and that there was no other evidence to prove that the Defendant evaded value-added tax as stated in this part of the facts charged by fraud or other unlawful act.

(3) Judgment of the court below

㈎ 기초사실

In full view of the evidence duly admitted and examined by the court below, including each statement at the court of original instance of Nonindicted 2 and 14, each statement of the suspect interrogation protocol on Nonindicted 12 and 2 prepared by the public prosecutor, each statement of the investigation report (the confirmation report on the suspected company, the modern funds related to the tax evasion, and the report on the embezzlement of corporate funds) and each statement of the investigation report, the following facts can be acknowledged.

① On May 13, 2002, Hyundai Gold is a gold bullion wholesale or retail company established with the representative director in the order of category (after that, on October 14, 2003, the representative director changed to Nonindicted 12). Even if Nonindicted 14 purchased the tax-free gold bullion by issuing the tax-free gold bullion, it was falsely reported as if it had been processed and sold without the intention to process it, and obtained approval for trading the tax-free gold bullion on January 20, 2004. On February 16, 2004, 14 companies, such as 3,660 kilograms, 18,1000 won (the amount exempted from value-added tax) were purchased from 14 companies, such as the gold bullion, and then the total purchase of the gold bullion was de facto lower than the value-added tax-free gold bullion purchase on the same date, 53,810,251,2719,2715,2715,2717).

② Modern gold issued the sales tax invoice of value-added tax to the selling office at each of the above transactions, but did not report the amount of value-added tax payable to the competent tax office (No. 2005 type No. 11575 of the Seoul Western District Prosecutors’ Office). The sales of the above prohibited amount of taxation was 1,062,00,000 won, such as the amount of profit (the difference between the sales price including value-added tax and the purchase price) generated from the above transactions, out of the proceeds deposited to the corporate account of the said transaction, and Defendant 4, etc. were divided into cash on the day of the above transaction, and there was no record of the property in the name at the time of the closure.

㈏ 피고인 4의 범행에의 가담 여부

In the second investigation at the prosecution (Seoul Western District Prosecutors' Office No. 2005 type No. 11575) and in the court of original trial (No. 272 of the investigation records No. 2005 type No. 11575) (the trial records No. 178 type No. 178 of the Seoul Western District Court Decision No. 2005Gahap59) it is known that the present price is one of Defendant 4 and 8, by introducing the above corporation to the corporation of 14 or to the defendant 4 and 8, where the corporation of 14 was aware of the peace, and thereby making use of this part of the case. (No. 4 and 8) Hyundai money was 350,000 won for the use of the bombombombomb, and it was 4000,000 won for modern trade, and it was 400,000 won for the remaining defendant 4 and 8,000 won.)

㈐ ‘사기 기타 부정한 행위’로써 조세를 포탈하였는지 여부

As seen above, in full view of the developments leading up to the approval for trading the tax-free gold bullion, details of purchase and sale of gold bullion, transaction period or time thereof, purchase and sale price, use of sales marginal profit, and circumstances leading up to closure of business, etc., the above transaction method can only be deemed as losses under the premise of the payment of reasonable tax from the beginning. Ultimately, it can be seen that the transaction collection from the counter-party to the transaction is intended to collect the value-added tax from the counter-party, and that the tax authority's act was an intentional calculation of the responsible property and that the amount equivalent to the value-added tax exempted from the payment due to closure of business was the source of profit and the motive of the transaction that can be presented in the above transaction, and if the above transaction was issued and delivered, even if the above defendant did not report the tax base and the payable tax amount to the competent tax office, and if it was impossible to collect the value-added tax from the sales price including the value-added tax amount collected from the counter-party to the transaction, it cannot be deemed that the above defendant's act was erroneous or unreasonable.

E. Determination on the prosecutor's grounds of appeal against Defendant 1

(1) Summary of this part of the facts charged

피고인 1은 2001. 10.경부터 2003. 11.경까지 서울 종로구 인의동 (이하 생략)에 있는 면세금지금 수입업자인 명주금은의 대표이사로 재직하였던 자로서, 명주금은의 경리이사 공소외 6, 명주금은, 면세금지금 도매업자인 성민지앤에스, 동화금은, 면세금지금 수출업체인 에이원글로벌을 실제 운영한 피고인 3, 성민지앤에스 대표이사 공소외 1, 성민지앤에스의 부장 공소외 17, 동화금은 전 대표이사 공소외 18, 에이원글로벌 대표이사 공소외 5와 순차적으로 상호 공모하여, 2003. 7. 1.부터 2005. 6. 30.까지 부가가치세 과세특례가 인정되는 면세금지금은 일정한 자격을 갖춘 금지금 도매업자가 면세추천을 받은 금세공업자 등에게 공급하는 경우 부가가치세가 면제되고, 그 외의 사업자에게 금지금의 실물을 공급하는 경우 이를 공급받은 사업자로부터 부가가치세를 징수하여 교부받은 부가가치세를 납부하여야 함에도 불구하고, 피고인 3은 위 업체들을 설립한 실제 사업주로 위 제도를 악용하여 부가가치세를 포탈하고, 이를 기화로 포탈액 상당의 부가가치세를 부당하게 환급받으려고 수입업체인 명주금은, 수출업체인 에이원글로벌, 일명 폭탄업체인 성민지앤에스를 설립, 운영하면서, 피고인 1과 공소외 6은 피고인 3의 지시에 따라 명주금은을 통해 면세금지금을 수입하는 역할을 하면서 면세금지금을 중간도매상을 통해 성민지앤에스에게 면세금지금 수입금액보다 낮은 금액으로 이를 매출하고, 공소외 1, 17은 피고인 3의 지시에 따라 성민지앤에스를 통해 면세금지금을 과세금으로 매입하고 부가가치세를 포탈하는 폭탄업체 역할을 맡아 두성사 등 면세도매업체인 중간도매상을 통해 면세금지금을 매입하여 과세금지금으로 처분하면서 부가가치세 납부능력이 없는 공소외 1을 대표자로 내세우고, 면세금지금을 매입가보다 낮은 가격으로 과세금 중간 도매상을 통해 동화금은에게 과세금지금으로 공급하여 부가가치세를 징수하고서도 2003. 11. 21. 사실상 폐업하고, 공소외 18은 피고인 3의 지시에 따라 과세금으로 전환된 지금을 해외로 수출하여 부가가치세를 부당하게 환급받으려고 동화금은을 통해 과세금지금을 수입가격보다 낮은 가격으로 매입하여 수출업체인 에이원글로벌에게 매출하고, 공소외 5는 피고인 3의 지시에 따라 과세금지금을 동화금은으로부터 수입가보다 낮은 가격으로 구입하여 해외에 수출하고, 이로 인한 부가가치세를 부당하게 환급받는 역할을 담당하면서, ① 성민지앤에스가 2003. 10. 1.부터 2003. 11. 21.까지 제1 원심 판시 별지 (주)성민지앤에스 범죄일람표 (2) 면세금지금 매입내역 기재와 같이 주식회사 나우골드를 비롯한 14개 업체로부터 376회에 걸쳐 면세금지금 24,153kg을 362,714,964,263원(부가가치세가 면제된 금액)에 매입한 후, 같은 기간 동안 주식회사 다인골드 등 17개 업체에 매입가보다 낮은333,038,920,645원(부가가치세를 제외한 금액)에 부가가치세 10%를 포함하여 366,342,812,710원에 과세금지금으로 공급하여 부가가치세 33,303,892,065원 상당을 징수하였음에도 조세를 포탈할 목적으로 2003. 11. 21. 사실상 폐업하는 방법으로 2004. 1. 25.이 경과함으로써 2003년도 제2기분 부가가치세 33,303,892,065원을 포탈하고, ② 2003. 9. 6. 서울 종로구 낙원동에 있는 종로세무서에서, 위 ① 기재와 같이 면세금수입업체, 폭탄업체, 중간유통업체, 과세금수출업체를 통해 면세금을 수입하여 부가가치세가 부과되는 과세금으로 전환한 뒤, 과세금을 수입금액보다 낮은 수출가격으로 수출하여 이로 인한 부가가치세를 부당하게 환급받기 위하여, 공소외 5는 피고인 3의 지시에 따라 과세금지금을 수출하여 부가가치세를 부당하게 공제받는 역할을 담당하면서, 과세금지금을 수입가보다 낮은 가격으로 동화금은 등에서 구입하여 해외로 수출한 후 이를 신고하고, 2003. 10. 25. 종로세무서 환급과에서 금제품에 대한 수출관련 서류를 제출하여 2003. 11. 10. 에이원글로벌 명의의 예금계좌로 부가가치세 환급금 143,256,000원을 송금받은 것을 비롯하여 그 무렵부터 2004. 2. 10.까지 제1 원심 판시 별지 범죄일람표 (3) 기재와 같이 15회에 걸쳐 2,659,842,100원의 부가가치세를 사기 기타 부정한 방법으로 각 환급받았다.

(2) Determination of party members

Defendant 1 conspired with Defendant 3, etc. to commit the crime of tax evasion of Seongbuk C&S and whether Defendant 1 participated in the crime of tax unjust refund of E&S, and according to the records, Defendant 1 established, around October 201, a gold bullion import firm, with Defendant 3’s funds, and was in charge of the management of the above company until November 21, 2003, and received benefits of KRW 2.5 million from Defendant 3 in return. However, the court below and the court below did not err in misapprehending the legal principles as to the above global sales of the gold bullion since it was difficult to find Defendant 1 as the representative director or not guilty of the tax evasion of 2.5 million won, and there was no other evidence as to the aforementioned global sales of the gold bullion from Defendant 2 to November 21, 2003.

F. Determination on the grounds for appeal by the prosecutor on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) and the violation of the Customs Act

(1) The summary of this part of the facts charged and the party’s assertion

The summary of this part of the facts charged is 3.0 7. 20. 20 g 20 g 20 g 20 g 3 g 10 g 2, 30 g 20 g 20 g 3 g 10 g 20 g 3 g 20 g 3 g 20 g 10 g 20 g 3 g 200 g 3 g 10 g 200 g 3 g 200 g 3 g 200 g 3 g 200 g 3 g 1 g 200 g 3 g 1 g 200 g 3 g g 200 g 3 g 1 g g 200 g g 3 g g 200 g g 3 g 200 g g g g 20.

In this regard, the prosecutor asserts that the customs duty refund as described in subparagraph (4) of the tax-free gold bullion imported from July 30, 2003 to November 28, 2003 is illegal to receive the tax-free gold bullion 11,338 g from November 28, 2003, and then sold gold bullion to the domestic company in whole, and no gold bullion was imported from December 1, 2003, and no gold bullion certified as a subdivision certificate necessary to apply for individual refund was purchased and processed, despite the absence of an invoice, from July 30, 2003 to November 28, 2003 by using the tax-free gold bullion imported from November 11, 203 to 11,338 g of the same crime list is illegal to receive the refund of customs duty, and although Defendant 2 and 3's defense counsel used the gold bullion actually corresponding to the import paper submitted at the time of receipt of the application for refund of customs duty refund, it is still a legitimate selling and processing product from domestic company.

(2) Determination of party members

㈎ 살피건대, 관세환급제도는 능률적인 수출지원과 균형있는 산업발전에 이바지하기 위하여 수출용원재료를 수입하는 때에 납부하였거나 납부할 관세 등을 관세법 등의 규정에 불구하고 수출자 또는 수출물품의 생산자에게 되돌려 주는 제도로서( 수출용원재료에대한관세등환급에관한특례법 제1조 , 제2조 ), 수출금제품에 관한 관세환급방식은 2003. 12. 이후 개별환급제도로 단일화되었는데, 개별환급제도는 수출물품을 생산하는데 소요되는 각각의 원재료별 소요량을 산출하고 각 원재료를 수입하는 때에 납부하였거나 납부할 관세 등을 수입신고필증 등에 의해 계산하여 환급하는 방식이다. 개별환급제도 하에서 수출물품의 제조업자가 수출용원재료를 직접 수입하여 제조·가공하지 않고, 다른 수입업자가 수입한 수출용원재료나 국내에서 제조한 원재료를 구입·가공하여 수출하는 경우에는 그 수입업자나 제조자로부터 수입신고필증분할증명서나 기초원재료납세증명서분할증명서를 교부받아 관세환급신청시 환급신청서와 함께 이를 첨부하여 제출하는 것이 원칙이다.

㈏ 그러나, 수출용원재료에대한관세등환급에관한특례법 제3조 제2항 은 “국내에서 생산된 원재료와 수입된 원재료가 동일한 질과 특성을 가지고 상호 대체사용이 가능하여 수출물품의 생산과정에서 이를 구분하지 아니하고 사용되는 경우에는 수출용원재료가 사용된 것으로 본다”고 규정하고 있으므로, 수출물품의 제조업자가 국내에서 공급받은 원재료를 사용하여 수출물품을 생산한 경우에 이미 수입업자로부터 공급받은 원재료와 동종ㆍ동질 물품을 직접 수입한 실적이 있다면, 그 수입업자로부터 교부받은 수입신고필증분할증명서 등이 없더라도 수출용원재료를 직접 수입할 때 발급받은 수입신고필증으로도 관세환급이 가능하다고 보아야 할 것이고, 관세환급실무도 이와 같이 처리하는 것으로 보인다{원심 법원의 관세청장에 대한 사실조회결과( 2006노63호 공판기록 제289～290쪽) 참조}.

㈐ 따라서, 명주금은의 관세환급이 부정한 방법에 의한 환급이라고 하기 위하여는 주식회사 명주금은이 수출물품의 제조에 실제 사용한 원재료와 관세환급 신청시 첨부한 수입신고필증상의 원재료가 동일한 질과 특성을 가지고 상호 대체사용이 가능하여 수출물품의 생산과정에서 이를 구분하지 아니하고 사용되는 경우에 해당하지 않아야 할 것인데, 검사가 제출한 증거들을 종합하여도 이 점을 인정할만한 아무런 증거가 없으므로 명주금은이 기존에 금지금을 수입하면서 교부받은 수입신고필증을 이용하여 기존에 수입된 금지금과 동종ㆍ동질로 볼 수 밖에 없는 금지금을 가공ㆍ수출하면서 개별환급의 방식으로 관세를 환급받았다고 하여 이를 부정한 방법에 의하여 관세를 환급받았다고 볼 수는 없다고 할 것이다.

㈑ 검사는 기존에 수입된 금지금에 대하여는 이미 간이정액환급의 방식으로 관세를 환급받았는데, 기존에 금지금을 수입하면서 교부받은 수입신고필증을 이용하여 또 다시 관세를 환급받은 행위는 이중환급에 해당되어 부정한 관세환급에 해당한다는 취지로 주장하므로 살피건대, 비록 위 피고인들이 기존에 수입한 금지금이 아닌, 국내 금지금도매업체로부터 매입한 다른 금지금을 가공ㆍ수출하면서 기존에 금지금을 수입하면서 교부받은 수입신고필증을 이용하여 관세를 환급받았다고 하더라도, 위 피고인들이 수출업체 등이 개별환급제도 하에서 비교적 손쉽게 관세를 환급받을 수 있도록 하기 위하여 마련된 관세환급의 특례 규정인 수출용원재료에대한관세등환급에관한특례법 제3조 제2항 에 따라 관세를 환급받은 것은 이미 간이정액환급제도에 의하여 관세를 환급받은 기존 금지금 수입분에 대한 것이 아닌, 다른 금지금에 대한 것이어서 이를 가지고 관세의 이중환급이라고 볼 수 없으므로 검사의 위 주장은 이유 없다고 할 것이다.

㈒ 위와 같은 취지로 이 부분 공소사실을 무죄로 인정한 원심의 판단은 정당하고, 거기에 사실을 오인하거나 법리를 오해한 위법이 있다고 할 수 없으므로 검사의 이 부분 항소논지는 이유 없다.

G. Determination on the grounds of appeal by Defendant 3

(1) Whether he/she takes part in a crime of tax evasion through a non-trade company

㈎ 인정사실

In full view of the evidence duly adopted and examined by the court below, the following facts can be recognized.

① In fact, from August 1, 2002 to February 2003, Defendant 3: (a) mainly sold gold to the credit card holders; (b) from March 2003 to June 2003, Defendant 3 purchased taxation money from a wholesaler and again sold it to the trading company; (c) from July 1, 2003, when the tax-free gold bullion system was implemented, Defendant 3 directly imported the tax-free gold bullion and sold it to the first company; (d) from around July 1, 2003 to from around March 2004, Defendant 3 engaged in the business of processing and exporting gold bullion purchased from the floor wholesaler.

② At the time of engaging in the import business, gold bullion was imported to the extent of 300 kilograms per week on average, four occasions per week, and 300 kilograms per gold bullion was imported. The volume of gold bullion was imported for the purpose of evading taxes and immediately exporting taxes, not for normally consumed in Korea. The amount of gold bullion imported was supplied through the primary company to Nonindicted Trade Co., Ltd. (hereinafter “Non-Indicted. 19”) through the primary company. Defendant 3 had Nonindicted Co. 6, who is an employee of gold bullion, prepare a relevant tax invoice by designating the trading volume, unit price, and trading partner, before the gold bullion was imported. The amount of gold bullion imported was deposited from the main seller immediately after the import of gold bullion was converted into the tax-free gold bullion and then sold at 78% or more of the purchase price of the gold bullion after the conversion into the purchase price of the gold bullion, and Defendant 3 had to pay the gold bullion again on the date of the first sale of the gold bullion by adding the value-added tax at the purchase price to the purchase price.

③ In doing the above transaction, a pre-sale bank received a remittance of sales proceeds to a corporate account through Internet banking transaction and remitted sales proceeds, and immediately withdrawn sales proceeds excluding sales proceeds from the sales proceeds in cash after trading.

㈏ 판단

As seen in the above facts, in full view of the circumstances and contents of the fact that the gold bullion was involved in the carbon business of the non-trade sector, the role and status of the defendant 3, and in particular, the defendant 3 led or participated in the carbon business of the non-trade sector while operating gold bullion as the importer, it is reasonable to view that the defendant 3 led or participated in the carbon business of the non-trade sector. Thus, this part of the allegation by the defendant 3 is without merit.

(2) Whether he/she takes part in a crime of tax evasion through the dynamics;

In light of the following circumstances acknowledged by the lower court and the lower court’s duly admitted and investigated evidence, ① Defendant 3 provided an interview with his defense counsel on October 3, 2006, and then operated 30 billion won, following the entry of Non-Indicted 18 and 20 as representative director, which was originally put in place by Non-Indicted 3, and Non-Indicted 6’s statement to the effect that Non-Indicted 3 did not appear to have been in charge of the sales of Non-Indicted 60 billion won, and Non-Indicted 6’s statement to the effect that Non-Indicted 3 did not appear to have been in charge of the sales of Non-Indicted 3 and Non-Indicted 6’s statement to the effect that Non-Indicted 60 billion won was 40 billion won, and that Non-Indicted 3 took charge of the sales of Non-Indicted 3’s revenue and sales of Non-Indicted 60 billion won, and then it was difficult for the lower court to sell it to Non-Indicted 3 to that effect.

(3) Violation of the Act on Aggravated Punishment, etc. of Specific Crimes (Tax) by unlawfully refunding value-added tax

㈎ 세방메탈을 통한 조세부정환급 범행에의 가담 여부

당심 및 원심이 적법하게 채택하여 조사한 증거들에 의하여 인정되는 다음과 같은 사정, 즉 ① 피고인 3은 검찰 조사에서 ‘세방메탈 대표 공소외 4는 피고인 3하고 친하기 때문에 위 피고인의 물건만 써달라고 부탁하여 주로 위 피고인의 물건을 가져다 수출을 하였다. 금을 많이 수출하여야 돈을 많이 벌 수 있는데, 공소외 4는 위 피고인과 친하고 믿을만 하여 금을 매출하게 되었다. 공소외 4는 위 피고인이 매출한 금이 폭탄업체를 거쳐 부가가치세가 포탈된 금이라는 사실을 알고 있었다. 한 업체에서만 (수출을 하여) 너무 많은 환급을 받으면 국세청에서 의심을 할까 봐 여러 업체를 통해 환급받을 욕심에 위 피고인이 지인들을 바지로 내세워 그들에게 자금을 대주어 회사(골든트레이드, 제이앤비골드, 로라쥬얼리, 썬앤골드)를 설립하게 한 다음 영업방법을 가르쳐 가면서 운영하였다. 위 각 수출업체들은 모두 위 피고인이 컨트롤을 하였다’라는 취지로 일관되게 진술한 점(위 증거서류기록 제3773쪽 이하, 제3783～3784쪽), ② 세방메탈은 2003. 11. 5.부터 2004. 6. 7.까지 사이에 피고인 3이 실제로 운영하는 동화금은, 명주금은, 에이원글로벌로부터 이미 폭탄업체를 거쳐 부가가치세가 포탈된 금지금을 매입하여 이를 수출하여 국가로부터 부가가치세 매입세액을 환급받은 점{당심에서의 공소장변경으로 위 피고인의 세방메탈을 통한 조세부정환급 범행에 관한 공소사실 중 디엔씨아이엔이(주)로부터 금지금을 매입하여 조세환급을 받은 부분(제2 원심 판시 별지 6-1 세방메탈 범죄일람표의 순번 24 내지 36 기재 부분 총 환급액 2,050,805,320원)이 철회됨으로써 위 조세부정환급 범행과 관련하여 세방메탈의 매입처는 위와 같이 동화금은, 명주금은, 에이원글로벌만이 남게 되었다} 및 그 밖에 피고인 3의 지위, 역할 등을 종합하여 보면, 비록 피고인 3이 세방메탈을 직접 설립하거나 운영한 것은 아니지만, 위 피고인이 공소외 4와 공모하여 이미 폭탄업체를 거쳐 부가가치세가 포탈된 금지금을 해외로 수출하는 과정에서 수출물량을 분산시켜 세무당국의 감시망을 피하고자 하는 의도에서 세방메탈을 여러 수출업체 중의 하나로서 배치하고 금지금 수출물량을 공급해 주면서 세방메탈의 조세부정환급 범행에 가담한 사실을 인정할 수 있으므로 피고인 3의 이 부분 주장은 이유 없다.

㈏ ‘사기 기타 부정한 행위’로써 부가가치세를 환급받았는지 여부

1) As seen earlier, gold bullion business is supplied as tax-free until the normally imported gold bullion business is supplied at a price lower than the purchase price, and the company collects value-added tax from the other party. Since the company does not report the tax base and the amount of tax payable under the Value-Added Tax Act in order not to pay the collected value-added tax, it closes its business, making it impossible to collect the value-added tax by withdrawing most of the balance of deposits in cash at the end of the transaction, even if it is not reported, and the exporter purchased gold bullion from the company with a bombomb, or the bomb, which purchased gold bullion, from the company with a bomb, and exported the gold bullion, and then receives a refund of value-added tax from the State. In light of the structure and source of profit-added tax, it can be recognized that the exporter who finally purchased gold bullion distributed by the company with a bomb, who received the refund of the value-added tax through the above series of transactions, even if it is reasonable to view the purchase of the gold bullion business to have received the refund of the above tax invoice.

2) 당심 및 원심이 적법하게 채택하여 조사한 증거들에 의하여 인정되는 다음과 같은 사정, 즉 ① 피고인 3이 실제로 운영하였거나 그 범행에 관여한 금지금 수출업체인 세방메탈, 제이앤비골드, 썬앤골드, 골든트레이드, 로라주얼리는 비교적 단기간 동안 이미 폭탄업체를 거쳐 부가가치세가 포탈된, 국내에서는 모두 소비할 수 없는 많은 양의 금지금을 위 피고인이 실제로 운영한 명주금은, 동화금은, 에이원글로벌로부터 매입하고, 대부분 매입 당일이나 그 다음날에 수출하고 나서 부가가치세 매입세액을 환급받았는바{당심에서의 공소장변경으로 위 피고인의 제이앤비골드를 통한 조세부정환급 범행에 관한 공소사실 중 디엔씨아이엔이(주)로부터 금지금을 매입하여 조세환급을 받은 부분(제2 원심 판시 별지 6-2 제이앤비골드 범죄일람표의 순번 1 내지 4 기재 부분 총 환급액 603,732,480원)이 철회됨으로써 위 조세부정환급 범행과 관련하여 제이앤비골드의 매입처는 명주금은만이 남게 되었다}, 위 각 수출업체와 금지금 매입처 등과 사이에 위 금지금이 이미 폭탄업체를 거쳐 부가가치세가 포탈된 금지금을 알면서도 이를 이용하여 부가가치세 매입세액을 환급받는다는 점에 관하여 공모관계가 인정된다고 할 것인 점, ② 피고인 3은 이미 폭탄업체를 거쳐 부가가치세가 포탈된 금지금을 해외로 수출하는 과정에서 수출물량을 분산시켜 세무당국의 감시망을 피하고자 하는 의도에서 여러 수출업체를 거느리면서 금지금 수출물량을 공급해 준 점, ③ 위 수출업체들이 각 금지금을 수출한 후 부가가치세를 환급받은 것은 오로지 국가를 기망하여 부가가치세를 부정하게 환급받음으로써 이익을 취할 수 있는 폭탄영업의 일련의 과정에서 그 필수적인 구성요소로 행하여진 것으로 보이는 점, ④ 위 수출업체들이 과세금지금을 매입하면서 부가가치세 매입세액을 거래징수당한 후 교부받은 세금계산서에 따라 부가가치세를 환급받았다고 하더라도 이는 오로지 위 피고인 등이 국가를 기망하여 부가가치세를 환급받을 목적으로 형식적으로 서류를 갖춘 것에 불과하다고 판단되는 점 등을 종합하여 보면, 피고인 3은 세방메탈 등 수출업체를 이용하여 ‘사기 기타 부정한 행위’로써 부가치세를 환급받았다고 봄이 상당하므로 위 피고인의 이 부분 주장도 이유 없다.

(4) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against the victim SPS

위 2.의 나.(3)㈏항에서 보는 바와 같이 피고인 3은 공소외 1, 피고인 4 등과 공모하여 성민지앤에스의 폭탄영업을 통한 조세포탈 범행을 주도하면서 원심 판시와 같이 그 이득금을 분배받는 등으로 성민지앤에스의 돈을 횡령한 사실을 넉넉히 인정할 수 있으므로 위 피고인의 이 부분 주장은 이유 없다.

H. Judgment on the grounds of appeal by Defendant 4 [Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)]

위 2.의 나.(3)㈏항 및 라.(3)㈏항에서 본 바에다가 공소외 2에 대한 검찰 제4회 피의자신문조서의 기재(서울서부지방검찰청 2005형제11575호 수사기록 제387쪽 이하) 등을 보태어 보면, 피고인 4는 피고인 3, 공소외 2 등과 공모하여 성민지앤에스 및 현대금은의 각 폭탄영업을 통한 조세포탈 범행에 가담하면서 원심 판시와 같이 그 이득금을 분배받는 등으로 성민지앤에스 및 현대금은의 돈을 횡령한 사실을 넉넉히 인정할 수 있으므로 피고인 4의 이 부분 주장은 이유 없다.

3. Conclusion

Therefore, the prosecutor's appeal against the defendant 1 and 2 is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since there is no reason to appeal against the defendant 1 and 2, and the prosecutor's appeal against the defendant 3 and 4 is with merit (the part against the defendant 3 among the judgment of the original court includes any ground for reversal ex officio as seen above). The prosecutor's appeal against the above defendant 3 and the above defendants' appeal against unfair sentencing are omitted, and the part against the defendant 3 and 4 among the judgment of the court of first instance among the judgment of the court below and the part against the defendant 2 among the judgment of the court of first instance are all reversed and it is again decided as follows after the pleading.

A. From October 1, 2003 to November 21, 2003, SPS office: (a) purchased tax-free gold bullion 24,153km over 376 occasions from 14 companies, such as the statement in the purchase list of tax-free gold bullion listed in attached Table (B), 362,714,964,263 won (amount exempted from value-added tax); and (b) purchased tax-free gold bullion 333,038,920,645 won (excluding value-added tax), including 10% of value-added tax, to 366,342,812,710 won, and supplied the total amount of value-added tax to 33,303,303,892,892,065 won as stated in attached Table (2) in the judgment of the court below; and (c) it is impossible to collect the value-added tax on 304,2084,2700 won on the date it is collected;

B. On October 2, 2003, Defendant 3 and 4, together with Nonindicted 1, ordered Nonindicted 1 to withdraw KRW 60,000,000 deposited in the corporate bank account (Account Number omitted) in the name of the above company for sexual C&S and then to withdraw KRW 60,00,000 deposited in the corporate bank account (Account Number omitted) in the name of the above company for the purpose of sexual C&S, with the intention to use the total amount in cash immediately after the transaction of value-added tax remaining in the corporate account is terminated through the tax-free gold bullion transaction with Nonindicted 1, and then to withdraw KRW 3,602,481,00 from October 2, 2003 to January 2, 2004; Defendant 30,000,000 won and 100,000 won and 100,000 won and 300,50,000 won and 3050,000 won and 1050.

2. As described in paragraph (1) above, Defendant 3, as the case may be, evaded value-added tax by fraud or other improper means, and finally purchased gold bullion distributed by a bombing enterprise, etc., shall be refunded equivalent to the value-added tax amount, but the organizational transaction structure in which the ultimate profit from the above illegal transactions is created. As such, Defendant 3’s intent to illegally receive criminal proceeds by means of pretending normal transactions as above.

(a) A person who actually operates a non-party 1, a real name of the actual representative director, in collusion with Defendant 1, a representative director of the gold bullion headquarters, Non-party 22, a secondary unemployment, balone, algorithy, Ghana trade, ice ice, Oral ice, Oralton, MM global, tethical global, tethroid, Orals, Oralles, Oralton, Oralles, Oralles, ice, U.S. ice, Ethrorthr, Ethroid, Ethroid, Ethroid, Ethroid, Ethroid, Ethroid, U.S. W., U.S. W., Ethrorthroid, Ethroid, Ethroid, Ethroid, Ethroid, Ethror, Madroid, Madrton, and the actual representative director of the company (the actual representative of the company).

B. From August 5, 2003 to September 30, 2003, the above order of gold bullion shall be sold to the above office; the above order of gold bullion shall be sold in sequence to the companies such as the gold bullion imported from the tax-free gold bullion; the above order of gold bullion shall be 3,682 kilograms; 52,740,564,000 won (the value-added tax exemption amount); the above order of non-trade shall be considerably less than 3,682 kilograms; the above order of non-taxable gold bullion shall be 400,000 won (the value-added tax exemption amount); the above order of non-taxable gold purchase price shall be 48,562,384,000 won (the value-added tax shall be excluding the value-added tax); and the above order of non-taxable gold bullion shall be 50,000 won (the above order of non-taxable gold bullion) after the above purchase of the tax-free gold bullion; the above order of 2050,8407,506,8407,7

B. In collusion with Non-Indicted 5, who is the E.I.D. representative director of E.B.

In the course of a series of transactions using a bomb coal company as described in the above paragraph (a), it has purchased and exported gold bullion volume from a bomb company to the bomb company, and has made an export transaction from the bomb company. After receiving the transaction amount from the bomb to the bomb account, it has received the transaction amount and immediately withdrawn the full amount in cash at the end of the transaction to be used for private

Around July 16, 2003, at the closing-ro five corporate financing branch of a national bank, withdrawal in cash of KRW 300,000,000 from the corporate bank account (Account Number omitted) under the name of EF global, and embezzlement, from that time until May 28, 2004, an amount equivalent to KRW 2,971,952,00,00 in total of the deposits owned by EF global ownership to the victim from May 28, 2004 as shown in attached Table 2 of the judgment of the court below, for the above legal entity, from time to time on May 28, 2004, by withdrawing in cash in the above way as above during its business custody,

C. In collusion with Nonindicted 18, who is the representative director of the Eastern Commercial Code,

In the course of a series of transactions using a bomb coal company as described in the above paragraph (a), the bombs shall be placed as the immediately preceding company of the exporting company and the amount of gold bullion from the immediately preceding company to purchase it and sell it to the exporting company; and then, the transaction amount shall be transferred to the above corporate account and the transaction shall be withdrawn in cash immediately after the end of the transaction, and shall be used for private purposes;

On July 28, 2003, at the closing 4Ga point of the Bank of Korea around 2003, the amount of the amount of the amount of the said amount of the said amount of KRW 6,199,593,720 from February 26, 2004 to February 26, 2004 as shown in the list of crimes Nos. 2 attached to the judgment of the court below, including withdrawal of KRW 10,00,000 from the corporate account (Account Number omitted) in the name of the bank (Account Number omitted) in cash from the bank account in the name of the bank, and embezzlement it by withdrawing the amount of the said amount of KRW 6,1

D. From February 2004 to acquire criminal proceeds from value-added tax evasion and unfair refund offenses arising from gold bullion transactions in the National Tax Service’s investigating country, in collusion with Nonindicted 3 and 21, by importing tax-free gold bullion through the use of gold bullion, which is a gold bullion conduit company, and by obtaining tax evasion proceeds from the tax evasion, in collusion with Nonindicted 3 and 21;

(1) From June 2, 2004 to June 7, 2004, as stated in the list of tax-free gold bullion purchase list No. 204, 243,445,349 won (the amount exempted from value-added tax) were imported on nine occasions from two companies, such as wing Group Holdings Co., Ltd., Ltd., and such imported tax-free gold bullion as above, including 10% of value-added tax on June 3, 2004 to June 8, 2004; 60,122,642,00 won (including value-added tax); 20,320,803,349 won cannot be imposed on the aggregate of the amount of value-added tax paid; 206,642,00 won cannot be imposed on the corporation’s deposit and other unlawful transactions; 206,200,641,646,206,206,206,206, etc., which were de facto impossible from the amount of value-added tax paid;

(2) As described in paragraph (1) above, in the course of operating a bombing business that evades value-added tax from the beginning by using the same gold as described in paragraph (d) above, the person who received the transaction amount from the above corporate account and immediately withdraws the transaction amount in cash and uses it for private purposes;

On June 3, 2004, at the corporate financing point of the Korean National Bank, the amount of the amount of 250,000,000 won was withdrawn in cash from the corporate bank account (Account Number omitted) in the name of the national bank and the amount of 1,691,460,851 won, from June 8, 2004 to June 8, 2004, from that time, as shown in the list of crimes No. 5 attached to the judgment of the court below, shall be embezzled by withdrawing in cash from the above method in the course of the occupational custody and arbitrarily consuming it for private purposes;

마. 이미 폭탄영업에 이용된 금지금을 매입하여 수출하고서 다시 부가가치세를 부정환급받기 위하여, 금지금 매입처인 금지금 수출업체인 에이원글로벌 운영자 공소외 5, 골든트레이드 운영자 피고인 1, 제이엔비골드 운영자 공소외 23, 로라주얼리 운영자 공소외 24, 세방메탈 운영자 공소외 4, 썬앤골드 운영자 공소외 25 등과 공모하여,

(1) On September 5, 2003, Non-Indicted 5, upon Defendant 3’s instruction, purchased 1,432,560,000 gh from the East-gu Global Office and filed an export declaration on September 6, 2003 to the Seoul Customs Office located in Gangnam-gu, Seoul on September 6, 200; on October 25, 2003, submission of export-related documents for the amount of tax imposed on the amount of tax to be refunded from the paper tax office located in Jongno-gu, Seoul on November 25, 200; on November 10, 2003, 4 Korea Bank type of 143,256,000 won was transferred to the deposit account at 143,50,000 won was refunded; on February 10, 2004, 305 through 305, 301 to 305, 204, 2015 through 45, 20145.25

(2) Around November 5, 2003, the office of Scambling purchased a tax ban of 110 kilograms from the office of Scambling, exported from Scambling on November 6, 2003 to Scambs of Hong Kong Group on December 25, 2003, and submitted documents related to the export of gold bullion with the application for value-added tax refund on January 19, 204, along with the application for value-added tax refund, and received a refund of value-added tax of 813,118,440 won from January 19, 204; from November 5, 2003 to June 28, 2004 through Scambling 1 to 23,37,38, and from June 5, 2003 to June 204, 2007: (a) the total amount of KRW 8147,275,2015,2847.

(3) Around December 9, 2003, at the E.N. office, the master gold was purchased 90 kilograms from the E.B. The master gold was exported from the E.N. on December 9, 2003 through E.N., and then on January 25, 2004, the master gold was returned KRW 59,276,000 on February 10, 2004, along with the application for value-added tax refund, and the documents related to the export of gold bullion was submitted to the E.S. on February 10, 204, and was paid KRW 5,276,00 through E.N. 5 through 26, as indicated in [Attachment 6-2] list in the judgment of the court below, from around December 9, 2003 to around June 7, 2004, the master gold was refunded to the E.N. from around 19, 2003 to around 30, 2007.

(4) 2003. 12. 5.경 썬앤골드 사무실에서, 명주금은으로부터 과세금지금 110㎏을 구입하여, 썬앤골드를 통해 2003. 12. 6. 홍콩 소재 프레셔스(PRECIOUS) 그룹 메탈사에 수출한 후 2003. 12. 25. 종로세무서에 부가가치세환급신청과 함께 금지금 수출관련 서류를 제출하여 2004. 2. 17. 부가가치세 597,676,500원을 환급받은 것을 비롯하여, 제2 원심 판시 별지6-3 범죄일람표 기재와 같이 썬앤골드를 통해 2003. 12. 5.경부터 2004. 4. 2.경 사이에 과세금지금 1,754㎏을 수출하고서, 2004. 2. 17.경부터 2004. 6. 15.경까지 사이에 5회에 걸쳐 부가가치세 합계 2,668,462,720원을 사기 기타 부정한 방법으로 환급받고,

(5) From November 27, 2003 to November 27, 2003, the order gold purchased 150 kilograms from the order gold, and the order gold exported from the order gold to the order box box box located in Hong Kong on November 28, 2003 to the order box box box located in Hong Kong on December 23, 2005, along with the application for value-added tax refund, submitted documents related to the export of gold bullion on January 13, 2004, and received value-added tax 379,40,50 won on January 13, 2004, and from November 27, 2003 to March 26, 2004 through the order set forth in [Attachment 6-4] list of crimes as indicated in the judgment of the court below, the order gold was to be refunded from November 27, 2003 to March 26, 2004 through the order set forth in [Attachment 6-4].

(6) On or around December 3, 2003, at (ju) Liberian office, the master gold purchased 100 kilograms from Liberian office, and the master gold exported from Liber on November 6, 2003 to Liber Group Miber on January 26, 2004, and submitted a document related to the export of gold bullion on February 10, 2004, along with an application for value-added tax refund, and received a value-added tax refund of KRW 590,409,380 from 3 December 2003 to 106 March 26, 2004, the master gold shall be refunded from 160 kilograms through Liberian to 16,40,405, and the total amount of value-added tax refund of KRW 590,409,380 from 203 to 204 to 26 March 26, 2004; and from 2016, 200 kilograms from 16,4.5.

F. In collusion with Nonindicted 6, Defendant 1, and Defendant 2:

As described in paragraphs (a) and (d)(1) of the above 2-A above, ordering money from the beginning via transactions that evade value-added tax for structural purposes is transferred to a corporate account and shall be immediately withdrawn in cash from the end of the transaction at the end, and shall be used for private purposes;

around March 7, 2003, at a corporate financing branch of a national bank, 100,000,000 won was withdrawn in cash from the corporate account (Account Number omitted) in the name of the national bank and then from June 28, 2004 as shown in the attached Table 7 of the judgment of the court below, as shown in the attached Table 2 of the judgment of the court below, from then to June 28, 2004, an amount equivalent to 5,246,386,00 won of the deposit owned by the bank from June 28, 204, was withdrawn in cash in the above manner as above in the course of the business for the victim corporation and embezzled it for private use

3. In collusion with Nonindicted 12, who is the representative director of the company, and Nonindicted 13, 2, and 14, who is the actual operator of the company, Defendant 4 had intent to evade taxes due to fraud or other unlawful act as described in the above paragraph (1), as described in the above paragraph (1), and Nonindicted 14 and 13 had Hyundai Fund take over from Nonindicted 15 to 60 million won, and have Nonindicted 12, who is not capable of paying taxes, take office as the representative director. Even if the processed tax-free gold bullion was purchased by issuing the false tax invoice through Nonindicted 16, who is an employee, made the processed tax-free gold bullion transaction process without the intention to process it, and acquired the approval of the trading of the tax-free gold bullion, Nonindicted 14, through Nonindicted 2, through Defendant 4, and obtained the profit margin from selling the tax-free gold bullion transaction by using it for the purpose of private use, Defendant 40 million won in Hyundai Fund’s name.

(a) On February 16, 200. 16. 204. 1. 1. Modern gold, (1) shown in [Attachment 1] holding by the court below is purchased from 14 companies, including (6) interviewers, an amount equivalent to 58,186,108,00 won (amount exempted from value-added tax) over several occasions, such as (3,60 kilograms) tax-free gold bullion purchase; (6) sale of the tax-free gold bullion on the same day is not possible on 20 occasions, including (1) purchase price of the tax-free gold bullion; (1) sale of the tax-free gold bullion 206. 1. 4; (2) sale of the tax-free gold bullion 10. 4; (3) sale of the tax-free gold bullion 10. 4; and (4) sale of the tax-free gold bullion 20. 10. 1. 15. 18. 15. 15. 1. 14. 1. 1. 1. 1. 7. 1.

B. On February 16, 200, Hyundai Fund: (a) around 16:0, at the office; (b) Nonindicted 2, 14; and (c) Defendant 4, who knew of the intention to withdraw profit margin generated from trading tax-free gold bullion trading under the above paragraph (a) on the trading day; and (d) to use it for private purposes; (c) Hyundai Fund transferred KRW 1,062,00,000 to another account in the Korean bank account (Account Number 814-183094-12-10101); (d) Hyundai Fund transferred KRW 12,062,00,000 to Nonindicted 13; and (e) embezzled KRW 712,000,000 from Nonindicted 12, 13; and (e) embezzled KRW 300,000 for the private purpose of use; and (e) embezzled KRW 400,000 for the remaining 300,000.

1. Each statement that conforms to the original judgment of the defendant 3 and 4 and the original judgment in part;

1. Each statement that conforms to the whole or part of the witness at the original trial or the trial court of the first instance or the trial of the second instance or the trial of the first instance, which corresponds to the witness in part or in whole.

1. Each statement in the interrogation protocol of the above Defendants and Nonindicted 1, 12, 2, 8, 4, 19, and 27 prepared by the prosecutor is corresponding to the above Defendants and the interrogation protocol of the suspect;

1. Each statement made by the prosecutor with respect to Nonindicted 26 and 28 on the prosecutor’s preparation of each statement corresponding thereto;

1. Each statement prepared by Nonindicted Party 1, 2, 29, and 28, corresponding thereto

1. Each investigation report prepared by prosecution officials in charge (reports related to traders on transaction flow, reports on export-related documents, reports on the details of purchase and sale of duty-free gold, reports on whether taxes are evaded or embezzled using the tax-free gold system, modern funds, reports on tax evasion and embezzlement, and reports on the embezzlement of corporate funds) corresponding thereto;

Comprehensively taking account of the foregoing, there is evidence.

A. Defendant 3

(1) The tax evasion and illegal tax refund listed in Article 1-A, 2-A, 4.(1) and (e) through (6) of the judgment: Article 8(1)1 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 9(1)3 of the Punishment of Tax Evaders Act, Article 30 of the Criminal Act [However, Articles 9(1)3 and 5 of the Punishment of Tax Evaders Act, Article 30 of the Criminal Act, Article 30 of the Criminal Act shall apply to the crimes listed in the attached list of crimes listed in Article 1-e(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 8(1)1 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 9(1)3 of the Punishment of Tax Evaders Act, Article 30 of the Criminal Act, and Article 2-e(2) through (6) of

(2) The occupational embezzlement listed in Section 1-b, Section 2-b, Section 2-b, and Section 4(2) of the holding: each of the following items: Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356, Article 355(1), and Article 30 of the Criminal Act (including each item)

(3) Paragraph (c) and (f) of Article 2-2 of the judgment: Each provision of Paragraph (1) 1 of Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356, Article 355(1) and Article 30 of the Criminal Act (in all cases, choice of each limited term of imprisonment);

B. Defendant 4

(1) The tax evasion set forth in Article 1-1(a) and Article 3-1(a) of the judgment: Article 8(1)1 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 9(1)3 of the Punishment of Tax Evaders Act, Article 30 of the Criminal Act / [Article 8(1)3 of the Act on the Aggravated Punishment, etc. of Specific Crimes,

(2) Paragraph (b) and Paragraph (b) of Article 1-2 of the judgment: Article 3 Paragraph (1) Item 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Articles 356, 355 Paragraph (1), and 30 of the Criminal Act (each of them is included)

1. Aggravation for concurrent crimes (defendants 3 and 4);

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Code

[Defendant 3] Penalties shall apply to imprisonment with prison labor and a concurrent penalty to imprisonment with prison labor as provided for in Article 1-1(a) of the Act on the Aggravated Punishment, etc. of Specific Crimes (taxes) with the largest sentence of imprisonment, and a fine shall be imposed two times the amount of a fine for each evaded (or refund) under Article 4(1) of the Punishment of Tax Evaders Act, and the fine shall be 130 billion won by adding it to the fine.

Defendant 4: Imprisonment with prison labor shall be subject to concurrent crimes with prison labor prescribed by the Act on the Aggravated Punishment, etc. of Specific Crimes (Taxes) as stated in Article 1-1 (a) of the Act on the Aggravated Punishment, etc. of Specific Crimes (Taxes), and with respect to fines, two times the amount of the evaded tax (or refund) tax under Article 4 (1) of the Punishment of Tax Evaders Act shall be determined as the amount of fine, and 80 billion won shall

1. Discretionary mitigation (Defendant 4);

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., the following circumstances)

1. Detention in a workhouse (Defendant 3, 4);

Articles 70 and 69(2) of the Criminal Code

1. Inclusion of days of pre-trial detention (Defendant 3, 4);

Article 57 of the Criminal Code

1. Order of provisional payment (Defendant 3, 4);

Article 334(1) of the Criminal Procedure Act

1. Custody order (Defendant 3, 4);

The proviso of Article 69(1) of the Criminal Act

검사는 위 조세포탈 범행의 연간 합계액이 10억 원 이상이 된다는 이유로 각 범행을 포괄하여 특정범죄가중처벌등에관한법률 제8조 제1항 제1호 로 의율하여 기소하였는바, 이 부분 공소사실 중 같은 별지 범죄일람표 (5)의 순번 1 내지 29, 31, 32, 34 내지 46 기재 부분(합계액 2,789,702,965원)은 위 제2(당원의 판단)의 다.(3)㈐항에서 본 바와 같이 범죄의 증명이 없는 경우에 해당하고, 유죄로 인정된, 나머지 순번 30, 33 기재 부분의 각 환급액을 합산하여도 특정범죄가중처벌등에관한법률이 적용되는 연간 합계 하한액인 5억 원에 미치지 못하므로 결국 이 부분 공소사실에 대하여는 형사소송법 제325조 후단에 의하여 무죄를 선고하여야 할 것이나, 이 부분 공소사실에 포함된 위 유죄 부분을 조세범처벌법위반죄로 처벌하는 이상 주문에서 따로 무죄를 선고하지 아니한다.

However, Defendant 3 did not have any other criminal record than punishment once by fine, and Defendant 4 should take into account the favorable circumstances in which it cooperates with investigative agencies and the court in finding the truth by making some confessions of his criminal conduct and other accomplices in the process of prosecution investigation and trial. Defendant 4 should take into account the beginning of the crime more favorablely.

In addition, the contents and results of the instant crime, the circumstances thereafter, and various sentencing conditions indicated in the records, such as the age, character and conduct, environment, etc. of the said Defendants, shall be equally determined as ordered.

It is so decided as per Disposition for the above reasons.

Judges Han-su (Presiding Judge)