Defendant

Defendant

The type of prosecution, the court below's judgment

Law Firm Rogos, Attorneys Jeon Man-soo

Suwon District Court Decision 2012Ma1240 Decided September 7, 2012

The part of the judgment of the court below against the defendant is reversed.

The prosecution against the defendant is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

1) As Co-Defendant 1, who held office as a representative director, did not pay the penalty on the notification disposition, the director of the Central District Tax Office of China filed a complaint with the Co-Defendant 1, who was fully exempted from the imposition of the penalty on the notification disposition. This is an illegal accusation against the Defendant who was exempted from the obligation to pay the penalty on the notification disposition, thereby filing a complaint with the Co-Defendant 1 for nonperformance of the notification disposition. The instant indictment instituted following such unlawful accusation constitutes a case where the procedure for indictment is invalid in violation of the statutory provisions.

2) Since the Defendant did not have conspired with the issuer of a false tax invoice, and did not know that the tax invoice was false, the Defendant did not have the intent to commit a violation of the Punishment of Tax Evaders Act.

B. Unreasonable sentencing

Even if the defendant is found guilty, the sentence of the court below that sentenced the defendant who did not impose a penalty on the notice disposition, for 6 months of imprisonment and for 1 year of suspended execution is too unreasonable.

2. Summary of the facts charged in this case

The defendant is a person who was the representative director of the Co-Defendant 2, a corporation established for the purpose of issuing transportation cards and manufacturing terminal devices by making it the location of the Sungnam-si from July 2000 to March 31, 2009.

Around July 25, 2007, the Defendant filed a final tax return on the first half-year value added tax in 2007 with the Sungnam Tax Office, and the facts were merely supplied with financial consulting services from Nonindicted 2, and Nonindicted 3 Company or Nonindicted 4 Company was not supplied with goods or services from Nonindicted 2 Company, but the tax invoice was issued as if Nonindicted 3 Company was supplied with services equivalent to KRW 1,030,000,000, and KRW 400,000,000 from Nonindicted 4 Company, and the documents were submitted to the public official in charge of the above tax office, stating the false list of total tax invoices as above.

3. Determination

(a) Relevant statutes;

It is as shown in the attached Form.

B. Circumstances of the instant accusation

According to the evidence and records duly adopted and examined by the court below, the following facts can be acknowledged:

1) On April 17, 2012, the director of the Central Regional Tax Office of China issued a false purchase tax invoice to Co-Defendant Company and Defendant on June 1, 2007, when Co-Defendant Company of the lower court raised 49,900,000,000 won in connection with the construction of the transportation card system of Kazakhish on June 1, 2007, and paid 1,573,000 won (including value-added tax) to Nonindicted Co-Defendant 2,7, and8 in compensation for loan brokerage, but the purchase tax invoice was paid 1,573,000,000 won in compensation for loan brokerage. The Defendant received 1,430,000,000 won in total from Nonindicted Co-Defendant 3 Company of the lower court and received 1,40,000,000 won in compensation for 1,430,000,000 won in compensation for loan brokerage, not in the name of the representative director. The Defendant paid the above 1000% amount to the above.

2) On May 22, 2012, Co-defendant Co-Defendant Company did not pay the above penalty amount of KRW 143,000,000 as stipulated in the instant notification disposition, and on May 22, 2012, the director of the regional regional tax office of Suwon District Prosecutors’ Office, the director of the regional tax office of Suwon District Prosecutors’ Office accused Co-Defendant Company and Defendant as a criminal fact under the instant notification disposition (hereinafter “instant accusation”).

3) Article 12(1) of the former Procedure for the Punishment of Tax Evaders (amended by Act No. 11132, Dec. 31, 201; hereinafter “former Procedure for the Punishment of Tax Evaders”) provides that “The Commissioner of the National Tax Service, the Commissioner of the Regional Tax Office, or the head of the Regional Tax Office shall file a criminal charge if the criminal suspect fails to comply with the notification within 15 days from the date of receipt of the notification.” Provided, That the foregoing provision provides that “If the criminal suspect fails to comply with the notification within 15 days from the date of receipt of the notification, he/she shall file a criminal charge.”

C. Whether the instant accusation is lawful

1) According to Articles 9(1), 9(3) and (4), and 12(1) of the former Procedure for the Punishment of Tax Evaders Act and Article 6 of the former Punishment of Tax Evaders Act (amended by Act No. 8884, Mar. 14, 2008; hereinafter “former Punishment of Tax Evaders Act”), in principle, a complaint by the Commissioner of the National Tax Service, the commissioner of a regional tax office, the head of a regional tax office, or a public official engaged in taxation may be raised against a tax offense. The punishment of a tax offense is prior to a measure to notify the Commissioner of the National Tax Service, the commissioner of a regional tax office, the commissioner of a regional tax office, or the head of a tax office (hereinafter “the Commissioner of the National Tax Service, etc.”) of the amount equivalent to a fine or a minor fine, specifying the reason when he/she acquires a conviction for the offense, and the Commissioner of the National Tax Service, etc. shall, in principle, file a complaint if the offender fails to comply with the notification within 15 days, and shall be punished without immediate.

2) The instant accusation provision stated in the accusation is Article 12(1) of the former Procedure for the Punishment of Tax Evaders Act that provides that if a person subject to the instant accusation fails to comply with the notification within 15 days from the date of receipt of the notification, he/she shall file a complaint. However, around 207, the instant notification disposition against the Defendant is that the Defendant committed an offense as the representative director of the Co-Defendant Company, but constitutes an offender who is not an investor, but is exempted from the full amount of punishment. If the instant notification disposition is in accordance with the instant notification disposition, the Defendant is not obliged to pay punishment. Therefore, the Defendant is unable to present a case where the Defendant fails to perform his/her duty imposed on the instant notification disposition. Thus, Article 12(1) of the former Procedure for the Punishment of Tax Evaders

Meanwhile, since the so-called indivisible principle of accusation and accusation is not applied to the accusation under Article 6 of the former Punishment of Tax Evaders Act, whether the accusation is established shall be individually discussed about the offender and corporation, who are natural persons punished by joint penal provisions (see Supreme Court Decision 2004Do4066, Sept. 24, 2004, etc.). On the ground that Co-Defendant Company, a corporation, was not in compliance with the disposition of this case, the Defendant, who was exempted from the obligation to pay the penalty in accordance with the disposition of this case, cannot file a complaint under Article 12(1) of the former Procedure for the Punishment of Tax Evaders Act, which is the provision for accusation following the non-compliance with the disposition of this case.

Furthermore, as long as the instant accusation provision is clearly stated in Article 12(1) of the former Procedure for the Punishment of Tax Evaders Act, it may not be deemed that the instant accusation falls under Article 9(3) and (4) of the former Procedure for the Punishment of Tax Evaders Act where the Commissioner of the National Tax Service, etc. should immediately file a complaint against an offender without notification.

3) In addition, the notification disposition under the former Procedure for the Punishment of Tax Evaders Act is a system that the Commissioner of the National Tax Service notifies a tax offender of a monetary sanction called a monetary sanction, instead of the punishment, and the prosecution is exempted if it has been implemented within the given period. The original purpose of the notification disposition system is not to refer a tax offense case to the stage of criminal procedure, but to handle it in a simple, swift and at the same time, not to impair the business credit of the offender. Unlike the accusation under Article 234 of the former Punishment of Tax Evaders Act, the complaint by the Commissioner of the National Tax Service, etc. is procedural and procedural, unlike the accusation under Article 234 of the Criminal Procedure Act, not only becomes a procedural condition, but also serves as the substantial basis for the State punishment authority. The purport of the former Punishment of Tax Evaders Act provides that the Commissioner of the National Tax Service, etc. specialized in the imposition of punishment against the tax offense should first determine whether to impose the punishment against the tax offense, thereby enhancing the purpose of imposing the national punishment authority's imposition of punishment or serious danger to the tax claims of the defendant.

4) Therefore, since the public prosecution of this case was instituted based on an illegal accusation of this case, it constitutes a case where the procedure for instituting a public prosecution is invalid in violation of the provisions of law. On the premise that the procedure for instituting a public prosecution of this case is lawful, the lower court erred by misapprehending the legal doctrine as to the requirements for the prosecution of a tax offense, thereby adversely affecting the conclusion of the judgment. Accordingly,

4. Conclusion

Therefore, the defendant's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The facts charged of this case are as indicated in the above 2. Paragraph, and this constitutes a case where the prosecution procedure is invalid in violation of the provisions of law as seen in the above 3. Paragraph, and thus, the prosecution is dismissed pursuant to Article 327 subparagraph 2 of the Criminal Procedure Act.

[Attachment Omission of Related Acts]

Judges Yu Nam-ju (Presiding Judge)

1) On the other hand, in making an immediate accusation under the former Procedure for the Punishment of Tax Evaders Act, there is no provision requiring a tax official to specify the grounds for accusation in a written accusation, and granting a tax official the right to immediately accusation belongs to a tax official to recognize the existence of the grounds for accusation until the right to recognize the existence of the grounds for accusation. Therefore, if there is a immediate accusation by the relevant tax official with respect to the case of a tax offense, the requirements for prosecution are satisfied by the Supreme Court Decision 94Do952 Decided May 31, 1996. However, the Supreme Court decision is different from this case applied by the Seoul Regional Tax Office under Article 9(3) of the former Procedure for the Punishment of Tax Evaders Act (amended by Act No. 6071 of Dec. 31, 1999) as the immediately accusation under Article 9(3) of the former Procedure for the Punishment of Tax Evaders Act (amended by Act No. 6071 of Dec. 31, 199) without taking the procedure for notification.