(영문) 서울중앙지방법원 2018.2.13. 선고 2017고합822 판결

Defendant A shall be punished by imprisonment with labor for a year and six months and by a fine of 620 million won, by a fine of 35 million won for each of the Defendants B and C. If Defendant A fails to pay the above fine, the above Defendant shall be confined in a workhouse for a period of one million won converted into a day.

However, with respect to Defendant A, the execution of the above imprisonment shall be suspended for two years from the date this judgment becomes final and conclusive.

Reasons

Criminal facts

Defendant A is the representative director of Defendant B Co., Ltd. (hereinafter referred to as “B”) located in Seocho-gu Seoul Metropolitan Government, and the actual representative of Defendant C Co., Ltd. (hereinafter referred to as “C”) located in the same place. Defendant A agreed to issue and receive false tax invoices between and among and among them to acquire money by means of lending from the bank, etc.

1. Defendant A

(a) B-related crimes;

(i)issuance of a false tax invoice;

On September 3, 2015, the Defendant issued a false tax invoice as if the value of supply was supplied with goods or services equivalent to KRW 575,007,416, and issued a false tax invoice to the above C over 15 times in total, as shown in attached Table 1, from around May 18, 2016, even though the Defendant did not supply the goods or services to the above C at the above office around September 3, 2015.

2) Receipt of false tax invoices

Notwithstanding the fact that the Defendant had not been supplied with goods or services at the above offices around February 2015, 2015, the Defendant received a false tax invoice as if the value of supply was supplied with goods or services equivalent to KRW 36,852,00,00, from that time until June 30, 2016, from that time, issued a false tax invoice equivalent to KRW 3,317,48,800 in total supply value of 20 times from the above offices, as shown in the attached list 2 of crimes committed by the Defendant, from June 30, 2016. Accordingly, the Defendant did not supply or provide goods or services for profit, and issued or received a false tax invoice equivalent to KRW 6,183,597,496 in total of supply value.

B. C-related crimes

(i)issuance of a false tax invoice;

On October 2, 2015, the Defendant issued a false tax invoice in the amount equivalent to KRW 3,317,48,800,000 of the value of supply as if the supply was supplied with goods or services equivalent to KRW 36,852,00 of the value of supply, and issued a false tax invoice in the amount equivalent to KRW 3,317,48,80 in total 20 times from that time until June 30, 2016, as shown in the attached Table 3 of Crimes List 3.

2) Receipt of false tax invoices

On September 3, 2015, the Defendant received a false tax invoice as if he received goods or services equivalent to KRW 575,007,416 of the value of supply, even though the Defendant did not receive goods or services from the above B at the office of the above C, from that time until May 18, 2016, from that time, a false tax invoice was issued in an amount equivalent to KRW 2,86,108,696 of the total value of supply over 15 times from the above B, as shown in the list of crimes in the attached Table 4. Accordingly, the Defendant issued or received a false tax invoice in an amount equivalent to KRW 6,183,597,496 of the value of supply without being supplied goods or services for profit-making purposes.

2. Defendant B corporation

The defendant issued or received a false tax invoice equivalent to KRW 6,183,597,496 in total of the value of supply as described in paragraph (1) of the above Article 1 in relation to the defendant's business at the date, time, and place as described in paragraph (1) of the above Article 1.

3. Defendant C

The Defendant issued or received a false tax invoice equivalent to KRW 6,183,597,496 in total of the supply values as described in Paragraph 1-B(b) of the above Article, at the time, at the place, and at the same time and place as specified in Paragraph 1-B(b) above.

Summary of Evidence

1. Defendants’ respective legal statements

1. Legal statement of witness E;

1. Protocol concerning the suspect examination of the defendant A by the prosecution;

1. A copy of the protocol concerning the examination of suspect concerning the F;

1. Details of each sales, each export clearance data, the details of the issuance of false electronic tax invoices, and the details of receipt thereof, each electronic tax invoice, and response data (G Co., Ltd.);

1. A written accusation and a written accusation;

Application of Statutes

1. Article applicable to criminal facts;

(a) Defendant A: Article 8-2 (1) 1 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 10 (3) 1 of the Punishment of Tax Evaders Act (Concurrent Imposition of Fines);

(b) Defendant B and C: The text of Article 18 of the Punishment of Tax Evaders Act and Article 10 (3) 1 of the Punishment of Tax Evaders Act;

[Judgment as to the Acceptance of Crimes by Defendants]

(1) Defendant A

The Defendant, as in the facts constituting an offense, received false tax invoices in a short period and repeated manner under the single and continuous criminal intent, for the purpose of profit-making, such as the crime, and there is time and place relevance between the act and the method of committing the crime. As such, the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes is established by combining each act of receipt,

Supreme Court Decision 2015Do2207 Decided June 23, 2015 and Supreme Court Decision 2014Do16273 Decided June 24, 2015

In cases where a person who actually operates two companies on the one hand receives a false tax invoice on behalf of both companies, the act of the same operating entity having one tax invoice shall be evaluated as one act in light of social norms (see, e.g., Supreme Court Decision 2012Do7172, Oct. 25, 2012).

The Defendant, using B and C that actually represent, received the same tax invoice. In such a case, conceptually, there exists an act of issuing the tax invoice and receiving the said tax invoice. However, in each form of processing transaction, only one copy exists, and the “violation of the Punishment of Tax Evaders Act due to the issuance of the said tax invoice” and the “violation of the Punishment of Tax Evaders Act due to the receipt of the said tax invoice” are subject to punishment only for a crime prescribed in one of the following crimes: (i) the aggregate amount is more than KRW 3 billion, which constitutes the standard for applying the Act on the Aggravated Punishment, etc. of Specific Crimes, and (ii) the scope of the value of supply provided under the Act on the Aggravated Punishment, etc. of Specific Crimes should not be determined separately for the mere reason that the amount is more than KRW 1.5 billion (i.e., the value of supply provided under the Act on the Aggravated Punishment, etc. of Specific Crimes is more than KRW 200,000,000,000,000).

The sum of the supply value of false tax invoices received by the Defendant in this case is KRW 6,183,597,496 (the supply value of each false tax invoice entered in Table 1 and 2 and the supply value of each false tax invoice entered in Table 4 and Table 3 are overlapped). Thus, the Defendant’s act constitutes a violation of Article 8-2(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, for which the sum of supply value is KRW 6,183,597,496, and the amount is calculated and imposed concurrently on the basis of the above amount.

② Even though the representative of a corporation of the Defendant Company is punished for a violation of Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes against multiple offenses under Article 10(3) of the Punishment of Tax Evaders Act, the crime of violation of the Punishment of Tax Evaders Act by a corporation, which is punished under the joint penal provisions of Article 18 of the Punishment of Tax Evaders Act, is subject to the application of the general principles on the number of crimes of violation of the Punishment of Tax Evaders due to the act of receiving tax invoices, etc., and one crime is established for each tax invoice, etc. (see Supreme Court Decision 2015Do16273, Jun. 24, 201). Therefore, one crime of violation of the Punishment of Tax Evaders Act is established for each tax invoice received by the Defendant Company.

1. Aggravation for concurrent crimes (Defendant B, stock company C);

Article 37 of the Criminal Act, the former part of Article 37 of the Punishment of Tax Evaders Act, Article 20 of the Punishment of Tax Evaders Act (the provisions on restricted aggravation of fines for concurrent crimes in Article 38 (1) 2 of the Criminal Act shall not apply and the addition

1. Discretionary mitigation (Defendant A);

Articles 53 and 55(1)3 and 6 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution (Defendant A);

Article 62(1) and (2) of the Criminal Act (limited to imprisonment)

Judgment on the Defendants and their defense counsel’s assertion (Article 1 and 4 of the Criminal List Nos. 1 and 4, and Section 1 of the Criminal List No. 2 and 3)

1. Summary of the assertion

The Defendants and defense counsel asserted that each tax invoice listed in the above sequence is related to the transaction made up of actual purchase or sale and export. They subsequently discovered the omission of the issuance of the tax invoice at the time of the actual transaction and then received it later.

① The tax invoice of September 3, 2015 as of July 30, 2015 from Nos. 1 and 4 of the Punishment Table 1 and 4 is related to the actual export (import company: H: 168MT and J 33.6MT, K 33.6M, L33.6MT, and L3.6MT) on July 30, 2015, and ② the tax invoice of October 2, 2015 as of July 30, 2015, which was actually exported on July 30, 2015 (import company: M: N20M), and the tax invoice of December 1, 2015 is related to the actual export (the tax invoice of December 1, 2015) of the Punishment Table 1 and 4, respectively.

2. Determination

Therefore, according to the contents of sales (investigative Record 1: 39 pages), each export clearance data (investigative Record 1: 40 pages, 51 pages), and 2 through 4 of the evidence No. 1-2 through 6, evidence No. 2, and evidence No. 3, etc. submitted by the Defendants, each export transaction, as alleged above, is recognized.

However, in light of the following circumstances, ① the investigator of the National Tax Service initially submitted by the Defendant C from February 2015 to June 2016, and the details of the purchase and export of the pertinent transaction items based on each export clearance data, specified as false tax invoices; ② the Defendants asserted that each of the 1 and 4th purchase details of the relevant transaction on September 30, 2015 (C Standards; hereinafter the same shall apply) was consistent with those of the above 10-1 and 2. The Defendants asserted that each of the above 20-1 and 3th purchase details of the goods were inconsistent with those of the above 10-1 and 5th export transaction on July 30, 2015, and that each of the above 20-1 and 5th export transaction on September 30, 2015 were difficult to verify, and that each of the above 20-1 and 5th purchase details were different from those of the above 20-1 and 3th purchase details.

3. Conclusion

Therefore, the Defendants’ charges related to each of the tax invoices are also found guilty with the remainder of the facts charged, and the Defendants and the defense counsel’s arguments to the different purport are rejected.

Reasons for sentencing

1. Defendant A

(a) The scope of punishment by law;

(a) Imprisonment: one year and six months to fifteen years;

(b) Fines: Amount of a fine: from 618,359,749 to 1,545,89,374 won (the sum of the supply values shall be 6,183,597,496 won and the amount of a fine which is double to 5 times the amount of a fine calculated by applying the tax rate of 10% of the value-added tax);

[Determination of Punishment] Type 2 (not less than 5 billion won, less than 30 billion won), such as the receipt of false tax invoices under special laws, etc.

[Special Contributor] Where there is no purpose of tax evasion or any result of tax evasion has not occurred (requirements for mitigation)

[Recommendation and Scope of Recommendation] Reduction Area, one year and six months to two years and six months. Determination of Punishment: Imprisonment for a year and six months, two years of suspension of execution and fine of 620 million won.

The Defendant received false sales tax invoices repeatedly among the companies it operates for the purpose of profit-making. The total amount of supply price of the false tax invoices received by the Defendant reaches KRW 6.2 billion, and commit an act by abusing the trade finance system to encourage exports, and the crime is heavy. In addition, such an act of receiving tax invoices not only disrupt the national tax collection order, thereby seriously impairing the tax justice, but also seriously impairing the sound order of commercial transactions.

However, considering the favorable circumstances, such as the fact that the defendant recognizes the crime as a substitute and reflects, that the defendant does not commit the crime of this case for the purpose of evading tax, but appears to have not actually caused the result of tax evasion, that a significant portion of the amount acquired from the crime of this case is expected to have been repaid, and that the defendant has no record of punishment for the same crime.

In addition, the defendant's age, character and conduct, environment, motive and background of the crime of this case, the means and consequence of the crime of this case, and all of the sentencing conditions shown in the arguments of this case, such as circumstances after the crime, shall be determined as the order.

2. Defendant B Co., Ltd. and a fine of KRW 35 million for each Co., Ltd. (one million won per head of a false tax invoice)

Judges

The presiding judge, the Kim Jong-dong

Judges Kim Gin-han

Judges Doi-ro

Note tin

(i)in the case of the receipt by an receiving company of a type of false tax invoice, such as tax evasion, which would generally benefit the receiving company;

It can be deemed that the crime is more severe, and the type of false tax such as sales performance, which the issuing company takes economic benefits, etc.

In the case of giving and receiving invoices, the crime of issuing invoices is more severe than the situation of the crime.