[1] The court's decision method and the scope of objection by the prosecutor in a case where a public prosecutor instituted a public prosecution for the evasion of gift tax by entering a number of divisible donation objects on a selective basis

[2] Whether a defendant's assertion is unreasonable in a criminal trial and can be judged disadvantageous to the defendant (negative)

[3] Whether the defendant can be held liable for the crime of evading gift tax solely on the ground that the defendant did not have any clear explanation about the process of acquiring the property which is difficult to recognize as having acquired by himself/herself, solely on the premise that he/she received a donation from a third party (negative)

[1] In a case where a prosecutor instituted a prosecution as a crime of evading a gift tax by alternatively stating a donor on several separate donated objects, the court shall decide on each of the donated objects. As such, in a case where one of the donors alternatively stated on a specific donated object is recognized as a donor, it is unnecessary to decide on whether the remaining one is the donor. However, in a case where one of the donor alternatively stated on a specific donated object is found not to be a donor, the reasons for not recognizing the donor as a donor should be clearly stated. On the other hand, a prosecutor cannot appeal against the part where he found the donor as a donor of a specific donated object and found the donor guilty as a donor on the ground that one of the donor alternatively stated on the specific donated object was not recognized as a donor. However, as to the part where the court acquitted the donor on the ground that one of the donor was not recognized as a donor among the donor alternatively stated on the specific donated object, the donor may appeal to the effect that at least one of the donor is not a donor.

[2] Under the current criminal procedure system, evidence to prove criminal facts must be presented by a prosecutor, and even if the defendant's assertion is unreasonable and false as long as the defendant's statement is not forced to make a statement unfavorable to him/her, it cannot be judged disadvantageous to the defendant.

[3] In a criminal trial where there is no explicit provision on presumption of gift, such as a legal relationship with respect to gift tax, a criminal defendant cannot be held liable for the crime of evading gift tax on the sole basis that he/she was given a donation from a third party on the ground that he/she did not have any clear explanation as to the developments leading up to the acquisition of the property for which it is difficult to recognize that

[1] Articles 254 and 323 of the Criminal Procedure Act, Article 8 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 9 (1) of the Punishment of Tax Evaders Act / [2] Article 308 of the Criminal Procedure Act / [3] Article 308 of the Criminal Procedure Act, Article 8 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article

[1] Supreme Court Decision 81Do1269 delivered on June 9, 1981 (Gong1981, 14067) / [2] Supreme Court Decision 91Do1385 delivered on August 13, 1991 (Gong191, 2385)

Defendant

Defendant

Law Firm Sejong, Attorneys Seo Sung-sung et al.

Seoul High Court Decision 2004No2154 delivered on October 19, 2004

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Determination as to the method of adjudication, etc. of the facts charged alternatively

In a case where a prosecutor alternatively stated a donor as a donor on several divisible donated objects and indicted a donor for a crime of evading gift tax, the court shall decide on each gift subject matter by examining the donor. Thus, in a case where one of the donor alternatively stated on a specific donated object is found to be a donor, it is not necessary to decide on whether the remaining one is a donor. However, in a case where a prosecutor decides that either of the donor alternatively stated on a specific donated object is not recognized as a donor, the donor cannot be recognized as a donor. On the other hand, in a case where a prosecutor acknowledges that one of the donor alternatively stated on a specific donated object is not recognized as a donor, he/she may not appeal against the part where he/she found the donor guilty as a donor on the ground that the other part was not recognized as a donor (see Supreme Court Decision 81Do1269, Jun. 9, 1981); however, at least one of the donor can not appeal against the part where the donor was found not guilty as a donor on the part of a specific donated object.

As to the facts charged in this case, the first instance court recognized the donor of Chapter 1,013 as non-indicted 1 and found the donor guilty as to the non-indicted 1 or non-indicted 2 as to the facts charged in this case's case's 2,771 national housing bonds, the donor of the part 1,013 as to the non-indicted 1 and all of the remaining parts were not recognized as the donor, the court below accepted the appeal filed by the prosecutor on the ground that it was illegal to recognize both as the donor, and judged on the part. The court below is just in accordance with the legal principles as seen earlier, and there is no error in the misapprehension of legal principles as to the purport

Therefore, the facts charged of the instant case purported to recognize the donor of the entire claim as either Nonindicted 1 or Nonindicted 2, and thus, it cannot be acknowledged differently by claim. As long as part of the claim was recognized as Nonindicted 1, a prosecutor cannot appeal to the purport that the donor of the remainder of the claim is admitted as Nonindicted 2, the Defendant’s assertion that the donor of the remainder of the claim cannot be allowed to be admitted as Nonindicted 2 cannot be accepted as it is without any grounds in light of the legal principles. The Supreme Court’s decision in the appellate brief stated general legal principles pertaining to selective facts charged, and it does not conflict with the aforementioned decision regarding the case where a donor was indicted for the crime of evading gift tax by alternatively stating the donor of several divisible donated objects. The Defendant’s grounds of appeal on

2. Determination on the part that recognized Nonindicted Party 1 as donor

According to the evidence duly admitted by the court below, the court below rejected the defendant's assertion that the property reproduced as the money for marriage congratulatory owned by the defendant was returned from the non-indicted 2, and it is just to maintain the judgment of the court of first instance that recognized the fact that the defendant donated 1,013 national housing bonds to non-indicted 1, his father, and the intention to evade gift tax was all acknowledged, and there is no violation of the rules of evidence as otherwise alleged in the ground of appeal.

The court below, based on the evidence duly admitted, acknowledged the donor of the above Chapter 1,013 as non-indicted 1, and did not apply the presumption provision of gift under the Inheritance Tax and Gift Tax Act. Thus, the defendant's ground of appeal claiming as if the above legal provision was applied cannot be accepted.

3. Determination on the part that recognized Nonindicted 2 as donor

A. The conviction in a criminal trial ought to be based on evidence with probative value, which leads to the conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt of guilt against the defendant, it is inevitable to determine the benefit of the defendant. Even if there is no such evidence under the current criminal procedure system, the evidence that there is a crime of crime should be presented by the prosecutor, and as long as the defendant is forced to make a statement unfavorable to himself/herself, it is unreasonable to make a false statement, it cannot be judged disadvantageous to the defendant (see Supreme Court Decision 91Do1385 delivered on August 13, 191, 191, etc.). Therefore, in a criminal trial where there is no explicit provision on gift tax presumption, such as a written gift tax, the circumstance leading up to the acquisition of the property for which it is difficult for the defendant to recognize that he/she had acquired it by his/her own means, it cannot be held liable for the crime of evading gift tax on the premise that he/she received a gift from a third party immediately.

The lower court determined that the Defendant’s assertion that the portion of Chapter 1,013 of the national housing bond 2,770, which the Defendant deemed to have received from Nonindicted 2, was donated by Nonindicted 1, but the remainder of Chapter 1,757 (the market price of approximately KRW 5.4 billion) was insufficient to recognize that the Defendant was donated by Nonindicted 1, and that the Defendant was returned of the property reproduced by Nonindicted 2 at KRW 2,000,000,000, which is the Defendant’s possession of the above claim 2,770, cannot be accepted. On the other hand, the Defendant’s assertion that Nonindicted 1 or other third parties, other than Nonindicted 2, donated the Defendant through Nonindicted 2, cannot be seen as a donation of the above large amount of non-indicted 1,757, which was delivered by Nonindicted 2.

B. However, the above determination by the court below is difficult to accept for the following reasons.

(1) First of all, the evidence submitted by the prosecutor that support the fact that part of Chapter 1,757 of the national housing bond was owned by Nonindicted 2 is the degree of the statement made by Nonindicted 1 that he had been in possession of part of his non-indicted 2 due to the proper use of the part of his non-indicted 1, and such statement alone is insufficient to readily conclude that the said part of the claim was owned by Nonindicted 2. The other evidence submitted by the prosecutor support the circumstance that Nonindicted 2 was involved in Nonindicted 1’s non-indicted 1’s non-indicted 1’s non-indicted 2’s non-indicted 2’s non-indicted 2’s acquisition of ownership of the above part of the claim, and there is no evidence to prove that Nonindicted 2 acquired the ownership of the above part of the claim. The statement made by the Defendant or Lee Chang-seok, who was returned the national housing bond of this case, which is the property reproduced by the marriage axis by Nonindicted 2, also it is evident that the part of Chapter 1,013 was owned by Nonindicted 1.

Ultimately, the evidence presented by the prosecutor alone seems to be insufficient to readily conclude that the part on Chapter 1,757 of the national housing bond was owned by Nonindicted 2. This is, in light of the materials relating to the prosecution’s tracking of funds attached to the records, confirmed that the purchase fund for the part on the above Chapter 1,757 claims was no longer brightness, and based on this, the lower court determined that there was no evidence to readily conclude that the purchase fund was a donor with respect to the above part on the part on the part on the claim (on the contrary, the lower court recognized that the donor was Nonindicted 1 as to the part on the part on Chapter 1,013, which verified that the purchase

The court below followed the judgment of the court of first instance that there is no evidence to readily conclude the donor of the above part of the claim as non-indicted 2, and did not specifically point out the evidence that served as the basis for the above fact-finding while recognizing that the part of the above claim was donated by Non-indicted 2. The court below determined that the summary of the evidence of the court of first instance was merely cited in the summary of the evidence as to the above fact-finding, and that there was no evidence to acknowledge that the donor of the above part of the claim was non-indicted 2, unlike the court of first instance. The court below determined otherwise by failing to explain the evidence and failing to do so, it was difficult to find that the court below specifically acknowledged the donor of the above part of the claim by any evidence.

(2) In addition, the evidence submitted by the Prosecutor alone cannot be said that Nonindicted Party 2 owned the National Housing Bonds 1,757.

If the court below held that the part 1,757 of the national housing bond 2,770 of this case was purchased with the secret funds of Nonindicted Party 1, and that the above part 1,757 was again donated to the Defendant by Nonindicted Party 2, it is difficult to avoid criticism that recognized the fact without any evidence. The evidence submitted by the prosecutor is not included in only the part 1,757 of the above 1,757, and it is not unreasonable to find that the tracking of the purchase fund was impossible only for the part on which the ownership was transferred to Nonindicted Party 2.

The part of the above Chapter 1,757, which the lower court deemed to have been purely purchased by Nonindicted 2 with its own funds, is likewise the same. The evidence submitted by the Prosecutor does not include any evidence to deem that Nonindicted 2 had assets equivalent to the above claim (5.4 billion won at the market price). The evidence submitted by the Prosecutor does not include any evidence to deem that Nonindicted 2 had assets equivalent to the above claim (5.4 billion won at the market price), and only the Defendant, who is a single person, was the

(3) Meanwhile, it is difficult to understand that the lower court concluded that the Defendant did not otherwise acquire the part regarding the claim under the Chapter 1,757 except for the donation received from Nonindicted Party 1 or Nonindicted Party 2.

As seen earlier, insofar as the source of funds for purchasing claims in Chapter 1,757 was not revealed, it cannot be readily concluded that there is no possibility that the Defendant received all or part of the above claims from a specific third party, not Nonindicted 1 or Nonindicted 2, or from a large number of third parties. Moreover, considering the Defendant’s marriage during the presidential term of Nonindicted 1, the Defendant’s assertion as to the existence of the property reproduced by marriage incentives cannot be accepted as its face value, the possibility that some of the above increased property is included in the above part of the above claim that was not revealed at least the purchase cost cannot be ruled out. Moreover, it is difficult to view that the other Defendant acquired legal relations other than donation, which was acquired by the Defendant due to the legal relationship other than donation, but that part of the property, which could not reveal its source of funds, has been entirely separated from the possibility of including some of the assets.

The lower court, on the ground that it is difficult to believe that the Defendant’s assertion that the entire national housing bonds of this case were returned to Nonindicted Party 1 or Nonindicted Party 2 as an asset for the propagation of marriage festivals, thereby concluding that the Defendant’s entire claim was obviously donated by Nonindicted Party 1 or Nonindicted Party 2, thereby having the Defendant prove that the part of Chapter 1,757 of the above claim was “Non-Party 2 did not receive a donation from Nonindicted Party 2,” is difficult to avoid any misapprehension of the legal doctrine on the burden of proof in the criminal trial and any violation of law recognizing the facts charged without any evidence.

(4) As long as the lower court additionally recognizes the fact that the Defendant received the above Chapter 1,757 claims from others, the lower court may not exempt the Defendant from liability for the crime of evading gift tax, even though the donor was a third party, not Nonindicted 2. However, as long as it is possible for the Defendant to receive part of the above Chapter 1,757 claims from a specific or a large number of third parties, or it cannot be completely ruled out that at least some of the above claims were purchased with the funds owned by the Defendant or acquired for legal relations other than gift, the lower court’s additional determination on the premise that there is no such possibility cannot be maintained.

The court below should have determined the establishment of the crime of evading gift tax against the defendant through a detailed examination with regard to the funds of the above 1,757 claims.

(5) Nevertheless, the court below erred by misapprehending the legal principles on the burden of proof in a criminal trial and by violating the rules of evidence, which affected the conclusion of the judgment.

4. Conclusion

Therefore, the part of the judgment of the court below which recognized the donor as non-indicted 2 cannot be maintained as it is. The selective facts charged in this case shall be prosecuted for one crime and judged in a lump sum, and the judgment of the court below shall be reversed in its entirety, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)