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(영문) 서울고등법원 2018.06.07 2017노3336
특정범죄가중처벌등에관한법률위반(허위세금계산서교부등)등
Text

All judgment of the court below is reversed.

In the first instance judgment, the defendant is sentenced to four months of imprisonment, and the second half of imprisonment.

Reasons

1. The sentence imposed on the accused by the first and second depths of the grounds for appeal (the first depth of KRW 1: Imprisonment with prison labor for 10 months, fines for 40 million, fines for 2 billion: Imprisonment with prison labor for 1 year and 6 months, and confiscation) is too unreasonable;

2. In the first instance trial, the prosecutor ex officio determination: ① the name of the first instance trial case was changed to “violation of the Punishment of Tax Evaders Act” in the “Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Delivery, etc. of False Tax Invoice); ② the part concerning the “criminal facts” in the facts charged [Attachment 1]; and the applicable legal provision “Article 8-2(1)2 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes; and Article 10(3)3 of the Punishment of Tax Evaders Act” in the “Article 10(3)3 and (5) of the Punishment of Tax Evaders Act; Articles 37 and 38 of the Criminal Act; ② the application for changes to the name of the second instance trial case [Attachment 2] of the facts charged in the second instance judgment [Attachment 2]; and the court applied for permission for changes to the revised facts charged; and the court applied for permission for changes to the changed facts in the judgment of the first instance trial on July 27, 2018.

Since the subject of the judgment was changed, the judgment of the court below No. 1 and No. 2 cannot be maintained any more.

3. Since the judgment of the court below Nos. 1 and 2 is reversed ex officio as above, the judgment of the court below is reversed in entirety without examining the defendant's unfair argument about sentencing, and the judgment below is reversed and it is again decided as follows.

【Grounds for the judgment in its entirety] The facts constituting a crime and summary of the evidence admitted by the court in question and the summary of the evidence are as follows: (a) [Attachment 1] Attached from 10 to 4 Myeon 1 [Attachment 1]; and (b) from 18 to 3 Myeon 6 [Attachment 2] attached to the judgment of the court in the second instance [Attachment 2], except for those as part of the revised facts charged, the summary of the facts constituting a crime and the evidence is identical to each corresponding part, and thus, it shall be cited in accordance with Article 369 of the Criminal Procedure Act.

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