특정범죄가중처벌등에관한법률위반(조세)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than two years and six months.
However, for three years from the date this judgment becomes final and conclusive.
Summary of Grounds for Appeal
The respective global income tax in 2010, 2011, and 2012 (hereinafter “instant global income tax”) imposed on the defendant is not imposed on the income actually acquired by the defendant, but imposed on the omission in sales by the defendant E (hereinafter “E”) as bonus of the defendant who is the representative director.
As such, the Defendant cannot be deemed to have committed a crime of tax evasion with respect to the instant global income tax imposed by deeming the omission of sales to have been paid as a bonus to the representative director pursuant to the tax laws and regulations.
Nevertheless, the lower court found the Defendant guilty of this part of the facts charged erred by misapprehending the legal doctrine or by misapprehending the facts.
The sentencing of the lower court of unfair sentencing (the suspended sentence of three years in June of two years and six months, and the fine of 4.5 billion won) is too unreasonable.
Judgment
“Fraud or other unlawful act” in the crime of tax evasion provided for in Article 3(1) of the Punishment of Tax Evaders Act (wholly amended by Act No. 919, Jan. 1, 2010; hereinafter the same shall apply) concerning the determination of facts and misapprehension of the legal principles as to the Defendant’s assertion of mistake of facts and misapprehension of the legal principles refers to an act that is recognized as unlawful by social norms as an act that enables the Defendant to evade tax, i.e., a deceptive scheme that makes the imposition and collection of tax impossible or considerably difficult.
(See Supreme Court Decision 2013Do13829 Decided February 21, 2014, and Supreme Court Decision 2013Do9906 Decided October 15, 2015). Since the crime of tax evasion, which is constituted by the tax evasion by such fraud or other unlawful act, is not an intentional crime, the crime of tax evasion does not require the defendant to evade or evade taxes, and it does not require the defendant to have the purpose of evading or evading taxes, and the criminal intent is in such crime of tax evasion.