[1] The nature of "disposition" and whether a notice is prepared for each offender as a follow-up measure by the Commissioner of the National Tax Service, etc. according to the results of the investigation into a tax offense case (affirmative)

[2] In a case where a tax official’s immediate accusation against a tax offense case is made, whether the requirements for indictment are satisfied even if the grounds for accusation are not specified (affirmative), and whether the court may examine the grounds for immediate accusation (negative)

[3] The effective scope of an accusation against a tax offense case, and the validity of an accusation against only a part of the multiple facts of the offense case

[1] According to Articles 9, 11, 12, and 14 of the former Procedure for the Punishment of Tax Evaders Act (wholly amended by Act No. 11132, Dec. 31, 201; enforced July 1, 2012); and Article 98 of the former Regulations on the Management of Tax Investigations (amended by National Tax Service Directive No. 1945, Jun. 29, 2012); a notice disposition, accusation, and notice of non-suspect are only prescribed as follow-up measures by the Commissioner of the National Tax Service, etc. according to the results of the investigation into a tax offense case; on the other hand, a notice disposition is a disposition notifying a tax offender that he/she should pay the amount equivalent to a fine or minor fine, not a disposition that notifies a tax offender of exemption from a fine or minor fine, and a written notice is prepared for each offender.

[2] The Procedure for the Punishment of Tax Evaders Act does not require that the reasons for accusation be specified in a written accusation when an immediate accusation is made. Moreover, granting a tax official the right of immediate accusation to a tax official shall be deemed to have been entrusted to a tax official with the authority to recognize the existence of a special reason for the purpose of having a tax official take an appropriate measure according to the time. Therefore, if a tax official makes an immediate accusation in relation to a tax offense case, the requirements for prosecution are satisfied, and the court shall not examine the reasons for an immediate accusation.

[3] An accusation is an expression of intent demanding an indictment for an offense, and its effect is limited to all the facts that are recognized as identical to the facts stated in the written accusation. Therefore, in a case where an accusation is filed against an offense pursuant to the Procedure for the Punishment of Tax Evaders Act, the effect of the accusation shall be all the facts of the offense related to the offense, and a part of the facts of the offense becomes effective as to the whole. However, in a case where an accusation is filed against only a part of multiple facts of the offense as an offense, it shall not affect the effect of an accusation against other facts of the offense not recognized as identical to the facts of the offense listed in the written accusation.

[1] Article 11-2(2) of the former Punishment of Tax Evaders Act (wholly amended by Act No. 919, Jan. 1, 2010; see current Article 10(2)); Article 9 (see current Article 15); Article 11 (see current Article 15(3)); Article 12 (see current Article 17); Article 14 (see current Article 19); Article 17 (1) of the former Punishment of Tax Evaders Act (wholly amended by Act No. 1945, Jun. 29, 201); Article 98 of the former Punishment of Tax Evaders Act (wholly amended by Act No. 1945, Jun. 1, 2010); Article 19 of the former Punishment of Tax Evaders Act (wholly amended by Act No. 11132, Dec. 19, 2010; see current Article 19-10(2) of the former Punishment of Tax Evaders Act (wholly amended by Act No. 1932, Jan. 2, 2019) of the former Punishment of Tax Evaders Act)

[2] Supreme Court Decision 94Do952 Decided May 31, 1996 (Gong1996Ha, 2076) Supreme Court Decision 2007Do7482 Decided November 15, 2007 / [3] Supreme Court Decision 2009Do3282 Decided July 23, 2009 (Gong2009Ha, 1464)

Defendant

Prosecutor

Law Firm (LLC) LLC, Attorneys Jeon Man-soo et al.

Suwon District Court Decision 2012No4145 decided April 24, 2013

The appeal is dismissed.

The grounds of appeal are examined.

1. Summary of the facts charged concerning the defendant and the non-indicted 1 corporation in the first instance trial (hereinafter "non-indicted 1 corporation").

Nonindicted Company 1 is a corporation established for the purpose of issuing transportation cards and manufacturing terminal devices, and the Defendant was the representative director of Nonindicted Company 1 from July 2000 to March 31, 2009.

(1) Around July 25, 2007, the Defendant filed the final return on the value-added tax base for the first time in 2007 with the Sungnam Tax Office, and the facts were merely supplied with financial consulting services from Nonindicted 2, and did not receive any goods or services from Nonindicted Co. 3 (hereinafter “Nonindicted Co. 3”) or Nonindicted Co. 4 (hereinafter “Nonindicted Co. 4”). However, the Defendant received a tax invoice as if Nonindicted Co. 3 was supplied with services equivalent to KRW 1,030,000 and KRW 400,000 from Nonindicted Co. 4 and submitted the documents to the public official in charge of the said tax office by entering the list of total tax invoices in the above contents.

(2) At the above date, at the above time, Nonindicted Co. 1 submitted to the public official in charge of Sungnam Tax Office the list of total tax invoices entered in the above-mentioned list with regard to the business of Nonindicted Co. 1.

2. The judgment of the court below

Based on the evidence duly adopted and investigated by the first instance court, the lower court acknowledged the following facts: (i) Nonindicted Company 1 and the Defendant around April 17, 2012; (ii) Nonindicted Company 1 did not pay the amount equivalent to the above punishment amount; and (iii) on the ground that Nonindicted Company 1 received false tax invoices equivalent to KRW 1.3 billion from Nonindicted Company 3; and (iv) from Nonindicted Company 4, as indicated in the facts charged, the crime was committed; (iv) Nonindicted Company 1 paid the amount equivalent to the punishment amount, KRW 1.43 million; and (v) the Defendant was an offender who is not an investor, and was exempted from the above punishment amount (hereinafter referred to as “instant notification”); and (v) on the ground that Nonindicted Company 1 did not pay the amount equivalent to the punishment amount; and (v) Non-Indicted Company 1’s complaint on the grounds that Nonindicted Company 1’s accusation was wholly based on the former Act No. 1324, May 22, 2012, the Prosecutor General of the Regional Tax Office of the Republic of the instant District Prosecutors.

According to the above facts, the court below dismissed the prosecution against the defendant on the ground that the defendant was exempted from the liability to pay the above punishment in accordance with the disposition of this case, and that the defendant already resigned from the representative director at the time of the disposition of this case, the vice president of the Central Regional Tax Office cannot prosecute the defendant on the ground of non-compliance with the disposition of this case. ② Since the provisions on accusation against the non-compliance with the disposition of this case are stated in the written accusation of this case, it cannot be seen as an immediate accusation without the disposition of this case. Thus, the defendant's accusation of this case is unlawful, and ③ therefore, the prosecution of this case was instituted in accordance with the accusation of this case, and therefore, the procedure of prosecution

3. Judgment of the Supreme Court

(1) According to Articles 9, 11, 12, and 14 of the former Procedure for the Punishment of Tax Evaders Act, and Article 98 of the former Regulations on the Investigation of Tax Offenses (amended by National Tax Service Directive No. 1945, Jun. 29, 2012), only a notice disposition, accusation, and notice of non-guilty charges are prescribed as follow-up measures by the Commissioner of the National Tax Service, etc. according to the results of the investigation into a tax offense case. Meanwhile, a notice disposition is a disposition notifying a tax offender that he/she should pay an amount equivalent to a fine or a minor fine, not a disposition notifying a tax offender that he/she should be exempted from a fine or a minor fine, and such notice is prepared

In addition, according to the records, the notice of this case is indicated as follows: ① only the non-indicted 1 company is recorded as an offender (the representative is written only by the non-indicted 5, who is the present representative, and the defendant is not written) and the attached document concerning a crime is stated as attached to the attached document; ② the defendant is only written as an offender; ② the defendant is merely submitting the notice of this case written by the non-indicted 1 company to the offender; ③ Meanwhile, the above notice of this case is indicated as follows: “(number 1 omitted) and the non-indicted 1 company’s investigation office of the Suwon District Tax Office"; and the next is indicated as active as “4 investigation team/the non-indicted 1709:17/6 of April 2012.” Considering that the telephone number of the non-indicted 1 company is only (number 2 omitted) or (number 3 omitted) and the above (number 1 omitted) is merely a document stating the other party’s notification of this case and its contents are insufficient to recognize that the defendant did not present the notice of this case.

Therefore, the lower court’s findings and determination are difficult to accept, on the premise of the fact-finding and determination by the lower court, on the premise that the instant notice is a document informing the Defendant of the fact that the Defendant will

(2) The Procedure for the Punishment of Tax Evaders Act does not require that the reasons for accusation be specified in a written accusation, and the original purport of granting a tax official the right of immediate accusation is that a tax official entrusts a tax official with the right to recognize the existence of a special reason for the purpose of having a tax official take an appropriate measure according to the time. Therefore, if a tax official makes an immediate accusation in relation to a tax offense case, the requirements for prosecution are satisfied, and if the court decides on the merits, it is not possible to examine the reasons for an immediate accusation (see Supreme Court Decision 94Do952 delivered on May 31, 196).

Upon examining the reasoning of the judgment below and the record, although the director of the Central District Tax Office only issued a notification disposition only to the non-indicted 1 company whose representative director was the defendant, and did not issue any notification disposition against the defendant, he can be found to have stated Article 12 (1) of the former Procedure for the Punishment of Tax Evaders Act concerning accusation caused by the non-performance of the notification disposition as the ground for the accusation in the instant accusation. Therefore, if the above ground for accusation is not only about the non-indicted 1 company but also about the defendant, it may be deemed that the defendant erred in the entry of the ground for accusation in the instant case. However, according to the legal principles as seen earlier,

In addition, the following circumstances revealed by the record, namely, ① the director of the Central Regional Tax Office did not state that the defendant does not file a final accusation against the non-indicted 1 regardless of the implementation of the disposition of notification by the non-indicted 1. ② Moreover, the notification of this case is a document informing the non-indicted 1 about the disposition of notification, and the contents of the defendant-related facts stated in the attached Form are merely an explanation of the non-indicted 1's criminal offenses. ③ Therefore, even if the defendant was aware of the notification of this case and its attached details, it is difficult to view it as an extent of trust that the defendant would not definitely file a complaint against the non-indicted 1 regardless of the implementation of the disposition of notification by the non-indicted 1. Rather, if the general public is a representative director of the non-indicted 1, the defendant could not be aware that the non-indicted 1 could be filed together with the non-indicted 1 company if the non-indicted 1 company failed to comply with the disposition of notification, and it cannot be viewed as the actual representative director of the non-indicted 1 company or the actual investor.

Therefore, it is difficult to accept the judgment of the court below in this respect.

(3) The accusation is an expression of intent demanding an indictment for an offense and its effect is limited to all the facts that are recognized as identical to the facts stated in the accusation. Thus, in a case where an accusation is filed against an offense pursuant to the Procedure for the Punishment of Tax Evaders Act, the effect of the accusation shall be all the facts of the offense related to the offense, and a partial accusation against a part of the offense becomes effective against the whole of the facts of the offense (see Supreme Court Decision 2009Do3282, Jul. 23, 2009). However, in a case where an accusation is filed against only a part of the facts of the offense, it shall not affect the effect of the accusation against other facts of the offense not recognized as identical to the facts of the offense listed in the accusation.

According to the records and relevant Acts and subordinate statutes, the crime under Article 11-2 (2) of the former Punishment of Tax Evaders Act is established when the person liable to receive the tax invoice under the provisions of the Value-Added Tax Act and the person liable to submit the aggregate tax invoice invoice to the Government fails to receive the tax invoice by the assault, intimidation, inciting, or conspiracy, or receives the tax invoice for false entry" or "when the defendant submits the aggregate tax invoice for false entry". The facts of this case are stated as follows: "the defendant received the tax invoice as if he was supplied with services of 1.03 billion won from Nonindicted Company 3 and 40 million won from Nonindicted Company," and "the document was submitted to the public official in charge of the above tax office by falsely entering the aggregate tax invoice for the total tax invoice for the above reasons." However, the defendant's submission of the aggregate tax invoice for the aggregate tax invoice for the defendant to the public official in charge of the tax office on July 25, 2007 is merely stated as the crime."

However, according to the statement of the instant accusation, it is evident that the director of the Central District Tax Office accused the Defendant by using the “act of receiving a false tax invoice” as the fact of the offense, and there is no other evidence to acknowledge that the Defendant accused the “act of submitting the list of total tax invoices written in a false statement to the public official in charge of Sungnam Tax Office” as the fact of the offense. Therefore, since the facts charged and the facts charged in the instant case are not recognized as identical, the effect of the accusation as to the above facts of offense cannot be deemed to constitute the facts charged in the instant case. Ultimately, the instant indictment was instituted without the accusation by the director of the Central Tax Office, and thus, the procedure of prosecution is deemed null and void as it violates the law (see Supreme Court Decision 2014Do1381, July 24, 2014)

Therefore, the lower court’s conclusion that dismissed the public prosecution against the Defendant is justifiable, and it cannot be said that the lower court’s error did not adversely affect the conclusion of the judgment.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)