(a) Offenders of offenses prescribed in Article 9 (1) of the Punishment of Tax Evaders Act;

B. Whether a corporation may be subject to aggravated punishment under Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes (negative)

(c) Whether Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes is applied where a person who commits a crime under Article 9 (1) of the Punishment of Tax Evaders Act is punished aggravatingly (affirmative);

A. The criminal subject of tax evasion under Article 9(1) of the Punishment of Tax Evaders Act is the taxpayer under Article 9(1) of the same Act, and the representative of a corporation or an individual, the agent, employee, and other workers of a corporation under Article 3 of the same Act (the third party, other than this legal officer, can be the criminal subject of the crime as co-offender). However, with respect to a corporation and an individual who are not the criminal subject of the crime, a fine prescribed under Article 3 of the same Act, which is a joint penal provision, shall be imposed upon the offender when the offender commits an offense.

B. Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Act") is clear that the above Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Act") is a provision to punish a legal person responsible for a crime tax evasion and a natural person who is an accomplice who has participated in such act of tax evasion, as well as an accomplice who has been involved in such act of tax evasion. Thus, a corporation cannot be subject to aggravated punishment by Article 8 of the Special Act, unless there

C. Article 3 of the Punishment of Tax Evaders Act provides that Article 3 of the Punishment of Tax Evaders Act shall be applied as a matter of course to punish an offender, such as the representative of a corporation, as a crime tax evasion under Article 9(1) of the same Act. In this case, the proviso of Article 3 of the Punishment of Tax Evaders Act shall be applied as a matter of course in order to punish the offender as a crime tax evasion under Article 8 of the Act on the Aggravated Punishment of Tax Evaders. In this case, the provision of the proviso of Article 3 of the same Act appears to stipulate that the offender may be exempted from punishment in consideration of the circumstances that the offender's act in accordance with his/her direction is normal, so the provision of the above proviso shall be

(b)Article 3 and Article 9, paragraph 1(b) of the Punishment of Tax Evaders Act;

C. Supreme Court Decision 73Do1148 delivered on August 21, 1973 (No. 21 ②5)

Career Construction Co., Ltd. and one other

Defendants

Attorneys A et al.

Seoul High Court Decision 90No2755 delivered on January 10, 1992

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

2. The appeal by Defendant Newsung Company is dismissed.

The grounds of appeal by the defense counsel of the defendant career construction company and each ground of appeal by the defendant's new company and the private defense counsel are examined together.

1. If the evidence adopted by the court below is replaced with the record, it is justified that the court below recognized the evaded tax amount of the defendants' decision, and there is no illegality of mistake of facts or incomplete hearing due to the violation of the rules of evidence, such as each theory of lawsuit. There is no reason for all arguments.

2. Article 9 (1) of the Punishment of Tax Evaders Act provides that "Any person who evades, refunds, or deducts national taxes by fraudulent or other unlawful means shall be punished by the following subparagraphs." Article 3 of the Punishment of Tax Evaders Act provides that "if a representative of a corporation, or an agent, employee, or other worker of a corporation or individual commits an offense prescribed in this Act with respect to the business or property of the corporation or individual, not only shall the offender be punished, but also the corporation or individual shall be punished by a fine under each corresponding Article: Provided, That a person who is not an oligopolistic stockholder under the Framework Act on National Taxes may be punished by a fine in addition to the punishment of the offender, the punishment may be reduced or exempted under the circumstances." Accordingly, the offender of a tax evasion crime under Article 9 (1) of the Punishment of Tax Evaders Act is the person liable to pay tax under the above Article 9 (1) of the same Act and the representative of the corporation, the agent, the employee, or any other employee of the corporation or individual (this refers to a third person other than the statutory manager, who is the person liable to a fine under Article 3 of the above.

Article 8 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter "Special Crimes Act") provides that "any person who commits a crime provided for in Article 9 (1) of the Punishment of Tax Evaders Act shall be subject to aggravated punishment according to the following classification" and Article 8 (2) provides that "any person who commits a crime shall be punished by imprisonment with prison labor for life or for not less than five years (Article 1) and for not less than three years (Article 2) shall be punished by imprisonment with prison labor for a limited term of not less than three years (Article 1). In addition, in the case of paragraph (1) of this Article, "in the case of paragraph (1), a fine equivalent to not less than two times and not more than five times the amount of the evaded tax shall be imposed concurrently on the corporation under the current penal system." In light of the fact that the corporation cannot be punished by imprisonment with prison labor, it is evident that Article 8 of the above Act is a provision to punish the person who is a legal person responsible for tax evasion and a natural person who has involved in such act. Therefore, a corporation shall not be punished by the principle of penal punishment (Article 8).

In addition, Article 3 of the Punishment of Tax Evaders Act is a basis for punishing an offender, such as the representative of a corporation, as a crime tax evasion under Article 9 (1) of the same Act. As such, Article 3 of the Punishment of Tax Evaders Act should be applied as a matter of course in order to punish the offender under Article 8 of the Act on Special Cases concerning the Punishment of Tax Evaders. In this case, the proviso of Article 3 seems to stipulate that the offender may reduce or exempt the punishment for the offender in consideration of the ordinary circumstances, and therefore, the above proviso of the same Article should be applied in cases where the offender is punished under Article 8 of the Act on Special Cases concerning the Punishment of Tax Evaders.

In addition, the Supreme Court Decision 73Do1148 delivered on August 21, 1973 held that "in the case of aggravated punishment for a crime provided for in Article 9 (1) of the Punishment of Tax Evaders Act in accordance with the provisions of Article 8 of the Act on Special Cases, it shall be deemed that the provision of Article 3 (including the proviso) of the Punishment of Tax Evaders Act shall be applied in the case of aggravated punishment for the crime provided for in Article 9 (1) of the Punishment of Tax Evaders Act" is a justifiable interpretation. It is not that the above purport is immediately taken out in the ruling on the case of punishing the offender as a special law, or that the corporation may be punished pursuant to Article 8

Nevertheless, the court below's decision that applied Article 8 of the Aggravated Punishment Act to Defendant career Construction Co., Ltd. is erroneous in the misapprehension of legal principles as to the above Article, which affected the conclusion of the judgment. Therefore, it is reasonable to point this out.

However, since the court below did not deal with the defendant's new company by applying Article 8 of the Aggravated Punishment Act, it is not reasonable for the defendant to discuss the defendant's new company as a public defender.

3. Therefore, the part of the judgment of the court below regarding Defendant career Construction Co., Ltd. is reversed, and the case is remanded to the Seoul High Court. The appeal by Defendant Newsung Co., Ltd. is dismissed. It is so decided as per Disposition by the assent of

Justices Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)