Defendant 1 is punished by imprisonment with prison labor for not less than six months, by imprisonment for not less than ten months, and by a fine not exceeding 310,000,000 won, respectively.

When Defendant 2 and 3 fail to pay the above fine, each of the above Defendants shall be confined in a workhouse for the period calculated by converting KRW 500,000 into one day.

However, with respect to Defendant 1, the execution of the above imprisonment for one year shall be suspended for each two years from the date this judgment became final and conclusive.

The Defendant asserts that the sentencing (ten months of imprisonment, two years of suspended execution) of the lower court is too unreasonable. Considering the age, character and conduct of the Defendant, the background and consequence of the participation in the instant crime, and all the sentencing conditions indicated in the instant argument, such as the amount of profit earned from the instant crime, etc., the sentence imposed by the lower court is too unreasonable, and thus, the Defendant’s above assertion is reasonable.

2. Summary of the prosecutor's grounds for appeal and its judgment (defendants 2 and 3)

A. Summary of grounds for appeal

In light of the language and text interpretation, legislative intent, etc. of Article 8-2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Punishment Act”), where the total sum of the amounts of the acts provided for in each subparagraph of Article 11-2(4) of the Punishment of Tax Evaders Act is at least 3 billion won, it constitutes an inclusive crime and constitutes Article 8-2(1)2 of the Aggravated Punishment Act. Nevertheless, Article 8-2(1)2 of the Aggravated Punishment Act applies only where the total sum of the acts provided for in each of the subparagraphs of Article 11-2(4)1 through 4 of the Aggravated Punishment, etc. of Tax Evaders Act is at least 3 billion won but less than five billion won, and the above provisions of the Aggravated Punishment, etc. of Tax Evaders Act do not apply to cases where the total sum of the amounts is at least 3 billion won, and thus, the judgment of the court below that found Defendant 2 and Defendant 3 not guilty constitutes a violation of the Aggravated Punishment Act.

B. Summary of the facts charged and the judgment of the court below

The summary of the facts charged against Defendant 2 and 3 is as follows: (a) the above Defendants issued 2,030,914,071 won (the total amount of KRW 2,030,913,971 stated in the indictment) as stated in the facts constituting a profit-making crime; and (b) falsely entered the list of total tax invoices by seller in the amount of KRW 1,038,872,726 and submitted it to the Government, thereby violating Article 8-2(1)2 of the Aggravated Punishment Act, which constitutes a violation of Article 8-2(1)2 of the Aggravated Punishment Act, when the sum of supply values, etc. is KRW 3,030,914,071 + KRW 1,030,914,071 + KRW 1,038,872,726).

The court below held that even if the defendants submitted a list of total purchase tax invoices with false amounts as stipulated in Article 11-2 (4) 1 through 4 of the Punishment of Tax Evaders Act, which are separate constituent elements of Article 8-2 (1) 2 of the Aggravated Punishment Act, the above defendants' total amount of 3 billion won or more but less than 5 billion won, and for profit-making purposes, the above defendants' punishment shall be aggravated. Thus, for profit-making purposes, the above defendants issued 2,030,914,071 won in total of 6 supply values of false tax invoices falling under Article 11-2 (4) 1 of the Punishment of Tax Evaders Act and issued 1,038,872,72, and 726 won in total, and there is no evidence to prove that the above defendants violated Article 8-2 (1) 2 of the Aggravated Punishment of Tax Evaders Act, since there is no evidence to prove that the above defendants were not guilty at least 3,500,000 won in the above charges.

C. Judgment of the court below

(i)the provisions of the law;

Punishment of Tax Evaders Act

Article 11-2 (Case before Amendment by Act No. 7321 of December 31, 2004)

(4) Any person who issues or receives a tax invoice without supplying goods or services under the provisions of the Value-Added Tax Act shall be punished by imprisonment for not more than two years, or by a fine not exceeding twice the amount of tax calculated by applying the tax rate of value-added tax to the supply value

Article 11-2 (Amendment by Act No. 7321, Dec. 31, 2004)

(4) Any person who commits an act falling under any of the following subparagraphs without supplying the goods or services under the provisions of the Value-Added Tax Act shall be punished by imprisonment for not more than three years, or by a fine equivalent to not more than twice the amount of tax calculated by applying the tax rate of value-added tax to the supply value entered in the relevant tax invoice and account statement, or the sale and purchase value entered in the list of the total

1. Issuing or receiving the tax invoice under the provisions of the Value-Added Tax Act;

2. Delivery or receipt of statements under the Income Tax Act and the Corporate Tax Act;

3. Submission to the Government by entering false details in the sales and purchase invoice by customer under the Value-Added Tax Act.

4. Submitting a list of total invoices by sale and by seller under the Income Tax Act and the Corporate Tax Act to the Government;

Act on the Aggravated Punishment, etc. of Specific Crimes

Article 8-2 (Aggravated Punishment of Breach of Duty to Issue Tax Invoice)

(1) Any person who commits a crime under Article 11-2 (4) and (5) of the Punishment of Tax Evaders Act for the purpose of making profits shall be punished aggravatingly as follows:

1. Where the sum of the value of supply, sale or purchase entered in the tax invoice and invoice, or in the aggregate of the value of supply, sale or purchase entered in the list of total tax invoices by customer or the list of total tax invoices by customer (hereafter referred to as "total amount of supply values, etc." in this Article)

2. Where the total sum of supply values, etc. is not less than three billion won but less than five billion won, he shall be punished by imprisonment for a definite term of not less than one year; and

(2) In cases falling under paragraph (1), a fine between double and five times the amount of tax calculated by applying the tax rate of value-added tax to the aggregate of supply values, etc.

Shebboards Shes

㈎ 조세범처벌법의 개정이유 및 특가법 처벌규정의 제정이유

The Punishment of Tax Evaders Act prior to the amendment by Act No. 7321 of Dec. 31, 2004 provides that the person who issued or received the tax invoice without supplying the goods or services under the Value-Added Tax Act shall be punished. However, there was no provision that the person liable to submit the sales and purchase invoice by submitting the sales and purchase invoice by falsehood to the government under the provisions of the Value-Added Tax Act may be punished even if he/she submitted the false list of the total tax invoices by falsehood, even though he/she submitted the false list of the total tax invoices in lieu of the tax invoice. In order to punish the submission of the false list of the total tax invoices in lieu of the tax invoice, the provision of Article 11-2(4)3 of the Punishment of Tax Evaders Act was newly established as of December 31, 2004

On the other hand, in the case where the value of supply on the tax invoice, sales, and total tax invoice, which is entered in the tax invoice, is more than 3 billion won, instead of adding profit-making profits, in order to cope with it strongly, the provision of Article 8-2 (1) of the Aggravated Punishment Act was newly established by Act No. 7767 of Dec. 29, 2005 to exclude the discretion of the tax office to file a complaint and to ensure that the special law is subject to the application of the Aggravated Punishment Act, instead of adding profit-making profits.

㈏ “공급가액 등의 합계액”의 의미

Article 8-2(1)1 of the Aggravated Punishment Act provides that the sum of the supply values, sales, and purchases entered in the tax invoice and invoice, or the aggregate of the supply values, sales, and purchases entered in the list of the total tax invoices or the total of the total purchase values entered in the list of total tax invoices by customer or the list of total tax invoices by customer is interpreted as they are. The sum of supply values entered in the tax invoice issued pursuant to Article 16 of the Added Tax Act, ② the aggregate of supply values entered in the list of total tax invoices by customer and the list of total tax invoices by customer submitted pursuant to Article 20 of the Added Tax Act, ③ the supply values of invoices issued pursuant to Article 163 of the Income Tax Act, Article 211 of the Enforcement Decree of the Added Tax Act, and Article 121 of the Corporate Tax Act, and Article 120-3, and Article 121 of the Corporate Tax Act provides that all the above provisions shall be interpreted as including the total sale amounts entered in the list of total tax invoices by customer and other reasons for tax evasion.

㈐ 이 사건의 경우

Therefore, Defendant 2 and 3 conspired to issue 2,030,914,071 won in aggregate of 6 supply values of false tax invoices falling under Article 11-2(4)1 of the Punishment of Tax Evaders Act for the purpose of profit-making, and submit a false list of purchase tax invoices in total amount of 1,038,872,726 won falling under Article 11-2(4)3 of the Punishment of Tax Evaders Act shall be deemed to fall under Article 8-2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes as the total supply value of 3,069,786,797 won in total, etc.

3. Conclusion

Therefore, since both the appeal by Defendant 1 and the appeal by the prosecutor against Defendant 2 and Defendant 3 are well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the appeal is again ruled as follows.

No tax invoice shall be issued without the supply of goods or services under the provisions of the Value-Added Tax Act or entered in the list of total tax invoices by customer shall be submitted to the Government.

1. On August 31, 2006, Defendant 2 and 3 conspired and received from the above non-indicted 22 a tax invoice stating "non-indicted 1 Co. 4" and "non-indicted 5 Co. 3 Co. 5" and the supply price column "2,025,090 won" and received from the above non-indicted 4 Co. 3 Co., Ltd., Ltd., the sum of the supply price amount (5%) from the above non-indicted 4 Co. 3 Co., Ltd. to the above non-indicted 3 Co., Ltd. and the above non-indicted 4 Co., Ltd. and the above non-indicted 30,090 won in return for the supply of oil from the non-indicted 3 Co., Ltd.'s office located in the Seocho-gu Busan Metropolitan City Co. 1, Ltd. (hereinafter the above non-indicted 1 omitted) and delivered them to the above non-indicted 4 Co. 300,97

2. The Defendants conspired with the Defendants on April 207, 2007, and Defendant 2 and 3 purchased oil equivalent to KRW 1,038,872,726 from the above non-indicted 1 Co., Ltd. at the office of the above non-indicted 3 Co., Ltd. for profit-making purposes, but purchased the said oil and paid the said money in return, the list of total tax invoices by seller at the end of January 2007 was falsely entered and submitted to the Government by means of a computerized report at that time.

A. Defendant 1

Article 11-2 (4) 3 of the Punishment of Tax Evaders Act, and Article 30 (Selection of Imprisonment)

(b) Defendant 2 and 3: Each special case is subject to Article 8-2 (1) 2 of the Aggravated Punishment Act, Article 8-2 (4) 1 and 3 of the Punishment of Tax Evaders Act, Article 30 of the Criminal Act (generally, a fine is concurrently imposed pursuant to Article 8-2 (2) of the Aggravated Punishment Act);

1. Discretionary mitigation (Defendant 2, 3);

Articles 53 and 55 (1) 3 of the Criminal Act (see, e.g., circumstances in which the defendant participated in the crime of this case, the amount of profit from such participation, the amount of profit from the crime of this case, and the amount which is against

1. Detention in a workhouse (Defendant 2, 3);

Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution;

Defendant 1: Article 62(1) of the Criminal Act

Defendant 2 and 3: Article 62(1) and (2) of the Criminal Act

[Attachment]

Judges Lee Jung-chul (Presiding Judge)