[1] The elements for the establishment of the conspiracy in the co-principal, and the method of proof in a case where the defendant denies the conspiracy and the criminal intent

[2] Whether a person, who is not the principal agent of a tax evasion under Article 9(1) of the Punishment of Tax Evaders Act, may independently become the principal agent of the tax evasion (negative)

[3] The number of crimes in which those who received goods from multiple enterprisers conspired with each of them to evade taxes (=actual competition)

[4] The case holding that the refund of the input tax amount or the deduction of the tax amount due from the tax evasion amount under Article 9 (1) of the Punishment of Tax Evaders Act is an act of tax evasion under Article 9 (1) of the Punishment of Tax Evaders Act, even though the output tax amount is not paid without reporting it at zero tax rate when supplying the gold bullion

[5] The case holding that the gold bullion supplier bears the responsibility for substantive concurrent crimes as to the former criminal acts and the subsequent accomplices as to the subsequent criminal acts on the grounds that the above gold bullion supplier's act of evading the value-added tax and the act of evading the value-added tax by the excessive coal supplier's sales of the zero-rate tax rate are separate tax evasion acts different from the taxpayer

[1] Articles 13 and 30 of the Criminal Act, Article 307 of the Criminal Procedure Act / [2] Articles 3 and 9 (1) of the Punishment of Tax Evaders Act / [3] Article 2 (1) of the Value-Added Tax Act, Articles 3 and 9 (1) of the Punishment of Tax Evaders Act, Article 2 subparagraph 9 of the Framework Act on National Taxes, Article 37 of the Criminal Act / [4] Article 11 of the Value-Added Tax Act, Articles 3 and 9 (1) of the Punishment of Tax Evaders Act / [5] Article 37 of the Criminal Act, Article 9

[1] Supreme Court Decision 2003Do3516 Decided October 10, 2003, Supreme Court Decision 2005Do8645 Decided February 23, 2006 (Gong2006Sang, 537) Supreme Court Decision 2006Do641 Decided May 25, 2006, Supreme Court Decision 2006Do3070 Decided August 24, 2006, Supreme Court Decision 2007Do4378 Decided July 27, 2007 / [2] Supreme Court Decision 99Do5191 Decided February 8, 200 (Gong200Sang, 651)

Defendant 1 and eight others

Defendants

Attorney Jeong-hee et al.

Seoul High Court Decision 2006No2975, 2007No1924 decided Dec. 6, 2007

All appeals are dismissed. Regarding defendants 5 and 6, 135 days out of the number of detention days after the appeal shall be included in the calculation of the original sentence.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Of the grounds of appeal Nos. 2, 4, 5, 6, 8, and 9, the grounds of appeal as to whether a joint principal of tax evasion by a bomban enterprise is recognized, and the grounds of appeal No. 1 as to the defendant

A. In relation to co-offenders who jointly process two or more persons in a crime, the conspiracy does not require any legal punishment, but is only a combination of intent to realize the crime by combining two or more persons to jointly process and realize the crime. Although there was no process of conspiracy, if there was a combination of two or more persons either successively or implicitly, the conspiracy is established if the agreement was reached, and even if the person did not directly participate in the act of conspiracy, he/she is held liable as a co-principal for another person's act. If the defendant denies the criminal intent together with the fact of conspiracy, the facts constituting such subjective element must be proven by the method of proving indirect facts or circumstantial facts which are relevant to the criminal intent due to the nature of the crime, and what constitutes indirect facts having considerable relevance should be determined by the method of reasonably determining the link of facts based on the close observation or analysis power (see, e.g., Supreme Court Decision 2005Do845, Feb. 23, 2006).

B. Examining the evidence adopted by the lower court and the lower court in light of the relevant records and the aforementioned legal principles, the lower court is justifiable in determining the Defendants as joint principal offenders against each of the bomban enterprises, as it is recognized that the Defendants conspired with the operators of each of the bomban enterprises, small and medium enterprise, taxation-related enterprise, and floor enterprise, were engaged in, or actively participated in, the act of tax evasion by each of the bomban enterprises, in collusion with the operators of the bomban enterprises, etc., and that the Defendants were involved in, or was actively involved in, the act of tax evasion. In so doing, the lower court did not err in the misapprehension

C. The Supreme Court precedents cited in the grounds of appeal by Defendant 5 and 6 are different from the case of this case and thus are inappropriate to be invoked in this case.

2. As to Defendant 5’s remaining grounds of appeal

A. Article 2(1) of the Value-Added Tax Act provides that an entrepreneur who supplies goods and services independently for business purposes is the person liable for value-added tax. Thus, the person liable for tax payment is merely the so-called taxpayer under tax law, not the person liable for tax payment under tax law. The criminal subject of tax evasion under Article 9(1) of the Punishment of Tax Evaders Act is the legal person such as a taxpayer under Article 2 subparag. 9 of the Framework Act on National Taxes, a representative of a corporation or an individual, an agent, an employee, or any other employee, and the person who does not have such status is merely an accomplice in tax evasion, and it cannot be the person liable for tax evasion independently. Thus, even where a person who receives goods and services from a multiple entrepreneur in collusion with each other, the person liable for tax evasion is merely the person who receives the goods and is the one who receives the goods, and it does not constitute one crime under Article 9(1) of the Punishment of Tax Evaders Act by each taxpayer.

B. Of the facts charged against the above defendant, the court below held that the above defendant's purchase of gold bullion through several wide-scale coal companies from the first day, which is a taxation-related company, constitutes one crime by several wide-scale coal companies, respectively. In light of the above legal principles, the above judgment of the court below is just, and there is no illegality in the misapprehension of legal principles as to the number of crimes in the crime of tax evasion.

3. Of the grounds of appeal by Defendant 6, as to the grounds of appeal regarding the conduct of tax evasion through the sale of gold bullion at the zero tax rate

A. In full view of the circumstances acknowledged by the evidence adopted, the court below found that the defendant was actively engaged in the transaction of gold bullion with the knowledge that the company or its next stage company did not actually export the gold bullion and distributed it illegally to the domestic market at the time of supplying it to the company of the zero-rate tax or the wide carbon company. In addition, the defendant did not collect the amount of the value-added tax equivalent to the zero-rate tax after reporting the zero-rate tax at the time of the transaction, and the defendant did not pay the amount of the value-added tax corresponding to the sales of this case by reporting the zero-rate tax at the time of the declaration of the value-added tax. Furthermore, the amount of the gold bullion purchased through the abuse of the zero-rate tax system was refunded or deducted from the amount of the zero-rate tax without reporting the zero-rate tax rate as above. In light of the records and evidence, the court below determined that the defendant evaded the tax by "Fraud or other unlawful acts" which make it impossible or considerably difficult to impose the value-added tax by pretending the zero-rate tax transaction.

B. In addition, the crime subject to the crime of tax evasion under Article 9 (1) of the Punishment of Tax Evaders Act is the legal person under Article 2 subparagraph 9 of the Framework Act on National Taxes, the representative of the corporation, the agent, the employee, and other employees of the corporation or individual under Article 3 of the Punishment of Tax Evaders Act, and the person who does not have such status is merely the co-offenders in the tax evasion of the taxpayer's tax evasion, and the taxpayer cannot be the subject of the tax evasion independently. The defendant's act of tax evasion and the act of tax evasion by the zero tax rate of the gold bullion sales differs from the taxpayer. Thus, the court below rejected the defendant's appeal that the defendant's act of tax evasion and the act of tax evasion as co-offenders of the excessive coal company constitutes double punishment, and it is reasonable to see that the amount of tax evasion involved in the crime of tax evasion of the company's value-added tax evasion is the output tax amount of the company's tax evasion, and it does not exclude the amount equivalent to the input tax amount.

4. As to Defendant 6’s remaining grounds of appeal and Defendant 7’s grounds of appeal

In full view of the circumstances acknowledged by the evidence adopted by the court below, it is proper to find the defendants guilty of the charges that the defendants issued a false tax invoice, including the supply price of the processed goods, even though the defendants provided a tax invoice with less Cheongsium, or did not supply Cheongsium, and there is no violation of the rules of evidence, incomplete deliberation, incomplete reasoning, or misapprehension of the legal principles as to the issuance of a false tax invoice, as otherwise alleged in the grounds of appeal.

5. As to Defendant 1’s grounds of appeal and the remaining grounds of appeal by Defendants 2, 4, 8, and 9

In this case where imprisonment with prison labor for less than 10 years and fines are sentenced, the reason that the sentence of the court below is too unreasonable cannot be a legitimate ground for appeal.

6. Conclusion

Therefore, all appeals are dismissed, and some of the detention days after the appeal against the defendant 5 and 6 are to be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)