In applying Article 8(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, whether the application of the Punishment of Tax Evaders Act should be determined by aggregating all evaded tax amounts as an offender under Article 18 of the Punishment of Tax Evaders Act without classifying each taxpayer (affirmative)

Articles 3(1) and 18 of the Punishment of Tax Evaders Act, Article 8(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Defendant 1 and one other

Defendant 2 and Prosecutor (Defendant 1)

Attorney Lee Dong-chul et al.

Seoul High Court Decision 2016No1897, 2017No1990 decided December 7, 2017

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

Article 3(1) of the Punishment of Tax Evaders Act is an offender, such as a taxpayer and a representative of a corporation, an agent, an employee, or any other employee of a corporation or an individual under Article 18 of the same Act, and Article 8(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which constitutes the elements of annual tax evasion in cases where the annual amount of tax evasion exceeds a certain amount, is a provision for the aggravated punishment of such tax evasion (see Supreme Court Decision 92Do299, Aug. 14, 1992, etc.). In applying the legal provision of this case, the application of the legal provision of this case shall not be separately classified by the taxpayer, but shall be determined by adding all the amount of tax evaded as an offender under Article 18 of the Punishment of Tax Evaders Act (see Supreme Court Decision 2004Do7141, May 12, 2005, etc.).

For the reasons indicated in its holding, the lower court found Defendant 1 not guilty on the ground that violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (issuance of False Tax Invoice, etc.) among the facts charged in the instant case against Defendant 1 constitutes a case where there is no proof of crime. Of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) established ○○○○ in the name of co-defendant 1 and established △△△△△△△△△△△ in the name of the co-defendant 1, 2012 and one year 2013, the lower court determined that all of the facts charged in the instant case constituted the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes committed on the ground that: (a) establishment of △△△△△△ in the name of the non-indicted who is the criminal defendant of the instant final judgment; and (b) establishment of △△△△△ in the name of the non-indicted 2013 and its evasion of value-added tax for the purpose of tax evasion; (c. 25.)

The prosecutor asserts that the facts charged in this part of the facts charged are part of the facts charged by Defendant 1 as an accomplice in the crime committed by Co-Defendant 1 of the court below, while the facts charged in the final judgment of this case are part of the above defendant as an accomplice in the crime committed by the non-indicted 1. Thus, since the annual evaded tax amount subject to summing up the legal provisions of this case is divided by each taxpayer and constitutes one crime, and it is not constituted one crime by combining them. However, in light of the aforementioned legal principles and records, even though the court below's reasoning was partially insufficient, it cannot be said that the court below erred by misapprehending the facts or by misapprehending the legal principles on comprehensive crime.

2. As to Defendant 2’s ground of appeal

The argument that the lower court violated the law of logic and experience and the principle of trial on evidence constitutes an allegation of unfair sentencing. However, under Article 383 Subparag. 4 of the Criminal Procedure Act, only in a case where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years is declared, an appeal on the ground of unfair sentencing is allowed. Thus, in this case where the Defendant was sentenced to a more minor punishment, the above argument to the same purport is not a legitimate ground for appeal.

3. Conclusion

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

Justices Lee Ki-taik (Presiding Justice)