(영문) 광주지방법원 2010.11.12.선고 2010노2295 판결

The prosecution against the violation of the Punishment of Tax Evaders Act due to the issuance of each transaction tax invoice listed in the attached table No. 1 through 5 among the facts charged in the instant case is dismissed.

The defendant's appeal against the crime of Attached Forms 6 through 11 in the judgment of the court below is dismissed.

Reasons

1. Summary of grounds for appeal (unfair sentencing)

Considering the various circumstances of this case, the punishment of the court below against the defendant (a fine of KRW 3 million for a crime Nos. 1 through 5 of the annual list of crimes as shown in the judgment of the court below, and a fine of KRW 1 million for a crime No. 6 through 11 of the annexed list of crimes as shown in the judgment of the court below) is too unreasonable.

2. Determination

A. As to Article 1 through 5 of the annexed List of Crimes (ex officio determination) of the annexed List of Crimes

Article 254 (4) of the Criminal Procedure Act provides that "Any entry in the facts charged shall be specified by specifying the time, date, place, and method of the crime," so that it is not effective to institute a public prosecution not specifically specifying the facts charged. The crime of violation of the Punishment of Tax Evaders Act by issuing a non-transaction tax invoice under Article 11-2 (4) of the former Punishment of Tax Evaders Act (amended by Act No. 9919, Jan. 1, 2010) is established. Since each tax invoice constitutes a single crime, the value of supply for each tax invoice shall be specified specifically in the indictment (see Supreme Court Decision 2006Do5147, Oct. 26, 2006).

However, among the facts charged in this case, the part on the attached list Nos. 1 through 5 is indicated only as the date and place of issuing a non-transaction tax invoice, the sum of supply values per year, and the purchasing place of a tax invoice, and the tax invoice's purchase is stated "only as it is stated "," and the value of each tax invoice cannot be deemed to have been specified specifically for each individual criminal fact stated in the indictment. Thus, the institution of the public prosecution in this part constitutes a case where it is null and void in violation of Article 254 (4) of the Criminal Procedure Act, and thus, the prosecution in this case should be dismissed pursuant to

Nevertheless, the lower court found the Defendant guilty of the part as indicated in [Attachment Nos. 1 through 5] among the facts charged in the instant case. In so doing, it erred by misapprehending the legal principles as to the specification of the facts charged, thereby affecting the conclusion of the judgment. Therefore, this part of the lower judgment was no longer maintained in this regard.

B. As to the crime of Articles 6 through 11 of the annexed Table No. 6 to the judgment of the court below (unfair sentencing)

However, considering the following circumstances: (a) the Defendant did not have the same criminal record; and (b) the Defendant led to the confession of this part of the crime; (c) although the crime of this part of the crime is deemed to disrupt the national tax administrative affairs and thus the nature of the crime is not good; (d) the frequency of issuance of the tax invoice for non-transaction or the size of false sales cannot be said to be small; and (e) the Defendant’s age, character and conduct, environment, motive of the crime, circumstances after the crime, etc., which are the conditions for sentencing, the lower court’s punishment on this part of the crime cannot be deemed to be too unreasonable, and thus, the Defendant’s assertion

3. Conclusion

Therefore, since the part of the judgment of the court below as to Articles 1 through 5 of the annexed crime list Nos. 364 (2) of the Criminal Procedure Act, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act, and the defendant's appeal as to the annexed crime Nos. 6 through 11 of the annexed crime list No. 364 (4) of the Criminal Procedure Act is without merit, and this part of the judgment below is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act.

Public Prosecution Rejection Parts

1. Of the facts charged in this case, the summary of the part Nos. 1 through 5 in the annexed list of crimes

No one may issue a tax invoice under the Value-Added Tax Act without supplying goods or services under the Value-Added Tax Act. Nevertheless, on July 2006, the defendant issued a false tax invoice as if he supplied the amount equivalent to KRW 5,7170,00 to Ansan Trade although he did not supply goods or services.

From around that time to July 2007, the Defendant issued a false tax invoice equivalent to 111, 795,000 won in total, as shown in [Attachment Table Nos. 1 to 5] of the supply price at the same place, from around that time, as well as from around the beginning of July 2007.

2. Determination

As seen earlier, as seen in the judgment on the grounds of appeal (see Article 2-A) (see Article 327 subparagraph 2 of the Criminal Procedure Act), this part of the public prosecution is null and void in violation of the provisions of law, and thus, the public prosecution of this case is dismissed pursuant to Article 327