2015Do1745 Violation of the Aggravated Punishment Act

(Issuance of False Tax Invoice, etc.)

1. B

2. C.

3. E.

Prosecutor (Defendants)

Law Firm G (Defendant B)

Attorney H, CA, I, and J

Attorney CB (Defendant C. E)

Attorney P (Defendant E)

Seoul High Court Decision 2013No3775 Decided January 15, 2015

September 10, 2015

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

The grounds of appeal are examined.

1. A. The summary of the facts charged in this case against the Defendants is as follows.

(1) On July 25, 2012, Q, in collusion with T, W, and X, from January 1, 2012 to June 30, 2012, from January 1, 2012, to June 30, 2012, the fact that Q, Co., Ltd. supplied goods or services to the said companies, was submitted a list of total tax invoices by each selling entity, which was falsely stated 9,673,010,330 won in total, for supply and supply price of goods or services to the said companies.

(2) From January 1, 2012 to June 30, 2012, the Defendants conspired with T and submitted to the tax office a list of the total tax invoices by each of the sales offices in January 2012, 2012, stating that, although not having provided the goods or services to R, AA, Z, or AB, S provided the goods or services to the said company and provided them with the total of KRW 11,239,62,940 (However, with respect to Defendant B, the total amount of supply provided to R is KRW 6,796,901,350).

B. The court below reversed the judgment of the court of first instance that found the Defendants guilty of all the facts charged of this case on the grounds that ① the confession statement of the Co-Defendant A, D, and Defendant C, a co-defendant of the first instance court, was not reliable, and since 2 A and D are deemed to have actually engaged in the closed-dong distribution business, the list of tax invoices by each sales source prepared by them was likely to be related to the actual transaction, ③ it is suspected that D and Defendant C were operated for the same business, ④ the statement of X that the actual representative of R was Defendant B is difficult to believe, and (other circumstances incurred by the prosecutor or the first instance court on the grounds of guilt are insufficient validity, and sentenced the Defendants not guilty.

2. However, it is difficult to accept such a determination by the lower court for the following reasons.

A. The probative value of evidence is left to a judge’s free judgment, but it must be consistent with logical and empirical rules, and the degree of the formation of a conviction to be found guilty in a criminal trial should not be reasonable doubt. However, it does not require that the degree be excluded from all possible doubts, and rejection of evidence that is recognized as having probative value is beyond the bounds of the principle of free evaluation of evidence (see, e.g., Supreme Court Decisions 94Do1335, Sept. 13, 1994; 94Do135, Sept. 13, 1994). The reasonable doubt here refers not to all questions and correspondence, but to refer to a question of the possibility of a fact that is inconsistent with the facts in accordance with the logical and empirical rule, and it should be based on this sexual prosecution that is grasped in relation to the finding of facts favorable to the defendant, and thus, it cannot be said that there is a reasonable doubt based on conceptual or abstract possibility (see, e.g., Supreme Court Decision 200Do4274, Jul. 294, 2075).

B. The evidence duly admitted by the lower court reveals the following facts and circumstances.

(1) Co-defendant C, a co-defendant in the first instance trial, who was prosecuted as the co-defendant in the instant case, made a concrete and clear statement that corresponds to the facts charged in the instant case in the court. In other words, D, a registered business owner of Q, established S under the name of D in the first instance trial and the court of the original trial, according to the proposal of T, and issued a tax invoice once a month in which R, etc. was not actually supplied to R, and upon the direction of T or Defendant B, deposited money deposited from the national bank account in cash in the account of R, etc., and delivered money to Defendant C, T, B, and T in the first instance trial and the court of the lower court to the effect that Q, a registered business owner of Q, visited, made a statement to the effect that Q’s account deposited money in the account of Q, etc. in the account of Q, without having been actually supplied to Defendant Q, in accordance with the direction of Defendant Q, the first instance court and the court of the lower court established Q, the actual president of Q in the name of Q, and the account of Q, etc.

(2) The statements made by D, A, and Defendant C are generally consistent after the confession of the instant facts charged, and there is sufficient objective circumstances to support their credibility as follows.

① After establishing S on February 1, 2012, D issued a tax invoice to the effect that it sold approximately KRW 11.2 billion in total for four months, and that it deposited and withdrawn a large amount of cash in accordance with the external transaction type from S’s account. From the external transaction size, D had no particular property but to the extent that it had been engaged in the closed-dong distribution business. Since S was registered only in Hongcheon-do Hongcheon-do, it was immediately closed by the head of Hongcheon District Tax Office due to the lack of actual place of business.

After establishing Q on March 19, 2012, A issued a tax invoice that sold approximately KRW 9.6 billion in total for three months, and Q’s account entered and withdrawn a large amount of cash. However, A appears to have no particular property in the previous place of business, and Q’s workplace was not equipped with the facilities including the prior place of business, but did not pay rent properly.

② D opened on February 1, 2012, and received approximately KRW 7.4 billion from the R account to June 12, 2012. From March 14, 2012, 2012, D deposited money of KRW 7.4 billion per time, and deposited money of KRW 100 million per time, and deposited money of less than KRW 100,000 within KRW 30,000 within KRW 30,000. Meanwhile, A deposited Q account on March 19, 2012 and received KRW 8.4 billion from the R account to July 2, 2012, and deposited money of KRW 10,000 per time, and deposited money of KRW 30,000 and less than KRW 30,000,00 in cash without being informed of all of the ordinary methods of payment in cash.

It is consistent with the statements of D and A that the bank to be withdrawn was placed in advance and immediately withdrawn when being deposited in the vicinity of the bank.

D) From May 1, 2012 to June 12, 2012, D received approximately KRW 4 billion from R, which corresponds to the volume from 400 to 500 tons of closed-dong. According to D’s monetary records (E-cell files stored in CDs bound on No. 2,676 of evidentiary records) during this period, D appears to have been mainly in a minute or in a port of time during this period, and it does not appear to have been almost rarely moving to R on L to purchase or deliver such large volume of waste.

In addition, a thorough comparison of the details of S Account transactions (Evidence Nos. 827, 828) and D, Defendant B, and C with the monetary content of D, B, and C. From May 1, 2012 to June 12, 2012, D, and C had frequent conversations between D, Defendant B, and C at the time of deposit or withdrawal of cash as above in the S Account. In particular, Defendant C appeared to have frequently exchanged with D, Defendant B, and T around the time of withdrawal of cash in D. Such circumstances are due to the strong support between Defendant C and Defendant C’s statement that D were accompanied by Defendant C when withdrawing cash from the S Account under the direction of Defendant B or T.

Examining the details of Q account transaction (Evidence No. 1, 369, 2, 885) compared with the contents of Q account A and Defendant B’s telephone account, Defendant B frequently appeared in Q account at the time of entry and withdrawal of cash. This supports A’s statement that, if Defendant B had already promoted and deposited money in Q account, Defendant B entered the bank to find money. Moreover, Defendant C also stated that there was an entry of delivery of cash deposited from Q account to Defendant C at the direction of Defendant B, etc., and Defendant C also stated that there was an entry of delivery of cash from Q account. Examining the details of transaction of Q account and the contents of the currency between A and A, around the time of withdrawal of cash from Q account, there was also a circumstance supporting A and Defendant C’s aforementioned statement, such as appearing several times with Defendant C and Defendant C.

According to Defendant C’s telephone call details after May 1, 2012, Defendant C mainly had been in the time of subdivision or acceptance during the week, and in particular, as seen above, Defendant C’s statement is supported by Defendant C’s act of delivering the cash released by D with Defendant B, etc. under the direction of Defendant B, etc. Furthermore, it is not reasonable to deem that Defendant C actively engaged in the purchase of waste waste to the extent that it would bring about a short-term sales of KRW 00 million, but it does not appear to have been mixed between the two regions in which R, which is the main selling place of S.

I and D appear to be mutually unaware of each other due to the lack of currencies. At a similar time, S and Q issued a large volume of tax invoices as if they traded a large amount of waste Dong in a short period, and issued tax invoices with R as its main sales place, AA, AB, etc., and immediately deposited money deposited in their accounts. The overall behavior of them is too similar to that of each other.

⑤ At the time of the instant case, D withdrawn KRW 257 million from March 21, 2012, which was deposited in the S account from March 21, 2012, and AA account, and was punished for embezzlement. It is clear that it is a shower contrary to suspicion that Di S account would have been deposited in a normal way, and rather, it constitutes another circumstance corresponding to the facts charged in the instant case.

(3) As to the instant case, D and A did not make specific statements as to who actually engaged in closed-end transactions, who were supplied in any way. However, according to their statements, they do not appear to be those who are difficult to properly understand the specific route or method in which the “closed-dong transactions” related to the instant case are supplied, since they did not have any means to engage in closed-dong transactions, by withdrawing cash from the bank under the direction of Defendant B, etc., and issuing false tax invoices. Accordingly, the credibility of their statements cannot be suspected on the ground that they either failed to make specific statements on the actual closed-dong transactions or made a statement as if they were inconsistent with the actual transactions.

(4) A and D made a statement consistent with the Defendant B, etc.’s defense suit to the effect that A and D had been actually supplied to R more than 3,4 times a week at the time of the instant case, but it is difficult to recognize the credibility of the statement on the grounds that D had been frequently exposed to R in P where D’s defense was located at L. Thus, it is difficult to recognize the credibility of the statement.

On the other hand, X’s representative director on the R’s registry clearly stated that R was not supplied with the waste movement from A or D at the court of original instance. X made an unfavorable statement in collusion with Defendant B at the time of being detained on suspicion of participation in the instant case, and the circumstances where A and D issued a large amount of tax invoices from R to X at the time of the instant case did not appear in the details of the statement objectively support the contents of the statement, and it is difficult to easily reject the credibility of the statement. In light of these facts and circumstances, D, and Defendant C’s statements consistent with the facts charged in the instant case cannot be rejected without permission, on the ground that there are sufficient objective circumstances to support the Defendants. Nevertheless, the lower court determined that the Defendants’ assertion was not erroneous in the misapprehension of the principle of free evaluation of evidence by failing to thoroughly examine whether these statements conform to objective circumstances, and by failing to exhaust all necessary doubt as to whether they could have actually closed a large amount of transactions within the period of time, and by failing to exhaust all necessary deliberation on the probative value of the evidence of this case.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is 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 Cho Jong-hee

Justices Park Sang-hoon

Justices Kim Jae-tae

Justices Park Sang-ok