(영문) 서울중앙지방법원 2017.5.19. 선고 2016고합1014 판결

If the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period calculated by converting 1.5 million won into one day.

Reasons

Criminal facts

【Criminal Power】

On July 29, 2009, the Defendant was sentenced to four years of imprisonment with prison labor for a violation of the Illegal Check Control Act at the Seoul Eastern District Court on August 24, 2012, and the execution of the said sentence was terminated. On September 2, 2016, the Seoul Central District Court sentenced three years of imprisonment with prison labor for a violation of the Commercial Act, etc., and the said judgment became final and conclusive on December 15, 2016.

【Criminal Facts】

The Defendant, as the representative of SD Co., Ltd. D (hereinafter referred to as "D") in Sungnam-gu, Sungnam-si, offered to F a false tax invoice circulation book introduced through E with money equivalent to approximately 5% of the value of the issuance of the above corporation’s authorized certificate necessary for the issuance of the tax invoice, etc., and offered to divide it with E with E by receiving money equivalent to the above corporation’s authorized certificate, etc. for profit-making purposes. The Defendant, along with E and F, submitted to the Government a false tax invoice in the aggregate amount of KRW 4,367,123,100 of the value of the supply, and received and entered

1. Issuance of a false tax invoice;

On April 30, 2015, the Defendant, along with E and F, issued a false tax invoice as if he supplied goods, such as construction materials, equivalent to 204,973,800 won, to G Co., Ltd., even though there was no fact that goods or services were supplied to G in fact at the above D office.

In collusion with E and F, the Defendant, including this, issued a false tax invoice in total of 636,942,100 won from that time until June 30, 2015, as indicated in the following list of crimes.

2. Receipt of false tax invoices;

On June 30, 2015, Defendant, E, and F received a false tax invoice as if they were supplied with goods, such as construction materials, equivalent to KRW 225,00,000,00, from H, even though they did not receive goods or services from H in the above D office, according to the above public offering.

3. Submission of a list of total tax invoices by customer;

A. Defendant, E, and F filed a value-added tax return on the two taxable periods of value-added tax (from July 1, 2014 to 2014,12,31.) for the value-added tax (from July 1, 2014, to 2012, 31.) in Sungnam-si following the aforementioned public offering on February 3, 2015, Defendant, E, and F provided goods and services to transaction parties, including fact-finding ( oil) amounting to KRW 179,00,000 in supply value; KRW 84,00,000,000 in supply value; KRW 135,181,00,000 in supply value; KRW 10,000 in supply value in L; KRW 100,000 in supply value in N; KRW 100,000 in supply value in total; KRW 80,000 in supply value in goods or services equivalent to KRW 80,000 in supply value in goods or services.

B. On July 27, 2015, Defendant, E, and F filed a value-added tax return on the taxable period of value-added tax (from January 1, 2015 to June 30, 2015) for the first five taxable period of value-added tax (from June 30, 2015) from Sungnam Tax Office on the said public offering, and notwithstanding the fact that they supplied goods and services to customers, Defendant, E, and F submitted to Q a list of tax invoices by customer, stating in falsity that they supplied goods and services equivalent to KRW 545,00,000 of the supply value to Q, equivalent to KRW 520,00,000 of the supply value, and KRW 320,000,000 of the supply value to R, including the supply value of goods and services equivalent to KRW 1,385,00,000 of the supply value of goods and services.

4. Submission of falsely entered list of total tax invoices by customer.

A. On February 3, 2015, Defendant, E, and F submitted a list of total tax invoices stating as if they were supplied with goods or services equivalent to KRW 630,00,000,000 from S Co., Ltd., even though there was no fact that they were supplied with goods or services from S, by reporting value-added tax on the two taxable periods of value-added tax (from July 1, 2014 to December 31, 2014) in Seongbuk-si, Sungnam-si, 2014.

B. On September 14, 2015, Defendant, E, and F submitted a list of total tax invoices by seller, stating as if they were supplied with goods or services equivalent to KRW 504,00,000 from T, even though there was no fact that they were supplied with goods or services from the stock company, upon filing a value-added tax return on the taxable period of value-added tax (from January 1, 2015 to June 30, 2015) for the first taxable period of value-added tax (from January 1, 2015 to June 30, 2015) from Sungnam Tax Office.

Summary of Evidence

1. Partial statement of the defendant;

1. Partial statement of witness E in the second protocol of the trial;

1. A written accusation;

1. Tax invoices, a list of tax invoices, and a value-added tax return;

1. Recording notes of each unmanned meeting (as of August 4, 2015, 2015, 14 August 14, 2015, and as of September 4, 2015, the person as of September 4, 2015, the person as of October 16, 2015, the person as of December 15, 2016, the person as of January 29, 2016, and the person as of September 28, 2016);

1. A report on closure of investigation and a report on investigation;

1. Previous convictions: Criminal records, written judgments, personal identification and confinement status, report on the results of confirmation before and after disposition, court rulings and court rulings;

Application of Statutes

1. Article applicable to criminal facts;

Article 8-2 (1) 2 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 10 (3) 1 and 3 of the Punishment of Tax Evaders Act, and Article 30 of the Criminal Act (In general, the punishment of imprisonment and fine are concurrently imposed as necessary)

1. Aggravation for repeated crimes;

Articles 35 and proviso of Article 42 of the Criminal Act

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 65(1)6 of the Criminal Act (The following extenuating circumstances among the reasons for sentencing):

1. Detention in a workhouse;

Articles 70(1) and (2) and 69(2) of the Criminal Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

Although the Defendant knows that the part concerning the issuance of false tax invoices as stated in paragraph (1) of the facts charged is known to him/her and from E, the receipt of false tax invoices as stated in paragraph (2) of the facts charged is limited to E/F and does not hear or instruct in advance, and the part concerning the submission of the list of false sales and individual suppliers as stated in paragraphs (3) and (4) of the facts charged is not known to him/her at all. In addition, the Defendant only committed an offense with E and one billion won, and the part after the Defendant was detained on the charge included in the facts charged. In other words, the Defendant did not solicit or take part in the crime as stated in paragraphs (2) through (4)

2. Determination

A. Relevant legal principles

1) A co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, namely, the implementation of a crime through functional control based on the intent of co-processing and the intent of co-processing. A co-processing intent refers to the transfer of one’s own intent by using another person’s act with the intent of co-principal’s intent to commit a specific crime. Even in cases where a part of the conspiracy is not carried out by directly sharing part of the constituent acts, if it is acknowledged that a functional control exists through an essential contribution to a crime rather than a mere conspiracy, rather than through a mere conspiracy, if it is recognized that a functional control exists through the intrinsic contribution to the crime (see, e.g., Supreme Court Decisions 208Do6551, Feb. 12, 2009; 2008Do65538, Jul. 23, 2015).

2) In light of all the circumstances, such as the means and patterns of the crime, the number of participants and their inclinations, the time and characteristics of the place of the crime, the possibility of contact with others in the course of the crime, the possibility of contact with others, and anticipated reaction, etc., the conspiracys may lead to the crime committed by them, or may have anticipated or sufficiently anticipated the incidental crimes to achieve the purpose, even though they did not take any reasonable measures sufficient to prevent the occurrence of the crime, and eventually, if the crime was anticipated to occur, then they should be deemed to have a functional control over not only the initial conspiracys but also the functional control over the crime (see, e.g., Supreme Court Decision 2010Do7412, Dec. 23, 2010).

3) In a case where one of the competitors runs away from his/her competitive relationship before the other competitors reach the implementation thereof, he/she shall not be held liable as a co-principal with respect to the subsequent act of the contest. However, the deviation from the competitive relationship is necessary to resolve a functional control over the functional act performed by the contest. As such, when the contest participated in the leading process of the contest and has an impact on the implementation of another contest, he/she shall not be deemed to have departed from the competitive relationship unless he/she has removed the influence on the implementation, such as actively endeavoring to restrain the crime, and has an impact on the implementation thereof (see, e.g., Supreme Court Decisions 2010Do6924, Sep. 9, 2010; 2014Do14843, Feb. 16, 2015).

B. Basic facts

According to the above adopted evidence, the following facts are recognized:

① Since the Defendant was released from Korea on August 2012, the Defendant was running the mobile phone sales store. Around March 2013, the Defendant established D, a corporation, and did not actually engage in the business. (1) The Defendant stated in the purport that “In the process of preparing money, such as the agreed money, to the victims, the Defendant issued a tax invoice to the F-F-E, who was working together before the date of the instant order from E in January 2015, and accepted it upon receiving a proposal to the effect that “The Defendant accepted it.”

② Since then, the Defendant: (a) sought the type of business directly in U.S. office to add D’s type of business to the preparation work for D to exchange tax invoices with D; and (b) added the type of business to D’s type of business. Furthermore, the Defendant transferred to F through E various means necessary for issuing tax invoices, such as a business registration certificate, passbook, and authorized certificate).

③ The Defendant issued a part of the tax invoices directly, and (3) prepared a paper tax invoice in the blank as of the issue date, and then sent them to E. The Defendant stated in this Court that “I would like to report to F by talking about the fact that I would like to report to F because I would like to deliver a paper tax invoice.”

④ The list of the tax invoices and the list of the total tax invoices in the name of D in which an accusation and prosecution were filed in the instant case is indicated (see, e.g., steam records 39-80 pages).

Of the tax invoices issued and received under the name of the Defendant, all paper tax invoices and electronic tax invoices are included, and from April 30, 2015, electronic tax invoices began to have been issued (see, e.g., evidence records 127-129). Meanwhile, in the case of criminal facts No. 4(a) as indicated in the judgment, not only D, the person who submitted the list of total tax invoices by seller, but also the other party to the transaction, i.e., the representative of S Co., Ltd., the purchaser, all of the Defendant (Evidence No. 23, 70, 9

6) The Defendant received benefits from the commission of a tax invoice from E or F in cash. On June 22, 2015, the Defendant was arrested as a separate case and detained in a detention house, but the Defendant was also discussed about the commission of a tax invoice and a tax office’s investigation to meet himself/herself after the confinement (see e/L Nos. 17 through 23 of the evidence record).

C. Specific determination

In addition to the above basic facts, the following circumstances can be revealed in light of the aforementioned adopted evidence.

1) Type of Defendant’s participation in crime

A) The Defendant, while gathering a criminal act, appears to have provided the name of the D legal entity owned by himself/herself while entrusting E or F with the conduct of issuing and distributing a tax invoice, and processed the crime by acquiring certain profits from the crime according to the issue price.

B) In fact, the Defendant, in the form of issuing a part of a tax invoice directly, directly carried out some of the crimes. However, the Defendant issued and received a tax invoice and issued an authorized certificate necessary for the submission of a list of the total tax invoices to E and F, which are co-offenders, and took measures to enable them to commit the crimes.

C) The Defendant gathered to acquire criminal profits in proportion to the initial value of the tax invoice issued. In fact, if the tax invoice was issued and distributed by F, etc., the Defendant would not merely receive fees according to the ratio in cash via E, but rather acquire profits proportional to giving and receiving the tax invoice using the Defendant’s name.

D) As above, the Defendant, in collusion with E and F, took part in the crime of this case’s false tax invoice in the form of conspiracy and co-principal with intent to realize the crime by using the other party’s act.

2) The Defendant’s method of contributing to and following the commission of crime

A) The Defendant’s establishment of D was transferred to receive F from E, and the Defendant merely established a corporation according to the proposal of E, etc., and did not become the designated person without knowing the substance of the crime, but rather, planned to take part in the instant crime by receiving a proposal that the Defendant may receive money using the name and tax invoice of the corporation under the name of the proprietor of the corporation and the name of the proprietor of the corporation.

B) During the crime of issuance and receipt of false tax invoices and submission of a list of total tax invoices, the part that the Defendant appears to have failed to perform the specific act of implementation is included. However, since April 2015, the Defendant was under way to commit the crime using electronic tax invoices that require the issuance of an authorized certificate, as stated by the Defendant himself, including the portion that the Defendant did not issue directly and issued by E, even before being admitted to the detention center on June 2015.

C) The crime related to such a series of tax invoices is an offense in which it is impossible to be realized unless the original representative permits the Defendant to use the name or provides any tools necessary for the issuance, etc. of the tax invoices. Each of the tax invoices or the list of the tax invoices in question includes the name of the Defendant, who is the representative of D.

D) In addition, the Defendant appears to have been experienced in engaging in the mobile phone sales business in the previous years. In light of the content and solicitation process of the instant crime, the Defendant issued a business registration certificate, passbook, and authorized certificate to commit the instant crime, and the process of reporting value-added tax, etc., the Defendant appears to have been able to have predicted that F, an accomplice, at the time of gathering to process the instant crime, would receive a tax invoice or submit a list of the total tax invoices separately from the issuance

E) Furthermore, even after being confined, the Defendant continued to discuss the issue of E and tax invoices that the Defendant visited in the detention center, the Defendant maintained a public bid relationship with E, etc. around that time, and there is no circumstance that the Defendant prevented the Defendant from committing a crime exceeding a certain amount of money or prevented E or F from committing a criminal act in excess of concerns over the degree of punishment or confirmation of distribution of profits from committing a crime or recovering the authorized certificate, etc. provided by him/her.

D. Sub-determination

1) Ultimately, the Defendant contributed to the crime of this case’s tax invoice by gathering tax invoices using the name of its own corporate entrepreneur through a public offering with E and F and providing core means necessary for issuing and receiving tax invoices and submitting a list of total tax invoices. The act of issuing and receiving tax invoices and submitting a list of total tax invoices is included in the scope of public offering. Thus, even if the Defendant did not specifically recognize some of the acts of implementation or did not properly distribute profits from crime, it is difficult to view that he is exempted from liability as a joint principal offender.

2) If so, the Defendant seems to be co-principal in relation to the crime of receiving false tax invoices and submitting a list of total tax invoices by seller and seller as stated in the judgment as well as the crime of issuing tax invoices listed in the No. 1 of the judgment.

3. Conclusion

Therefore, all facts charged against the defendant are found guilty, and the defendant and his defense counsel's assertion to the different purport is not accepted.

Reasons for sentencing

1. The scope of punishment by law;

Above 6 months to 15 years, fines of 436,712,310 won to 1,091,780,775 won

2. Non-application of the sentencing criteria;

Article 37 (latter Concurrent Crimes)

3. Determination of sentence: Imprisonment for 8 months, a fine of 450 million won; and

The Defendant took part in the crime of using the name of a juristic person to receive tax invoices in return for an accident. The crime of false tax invoices is highly likely to be criticized in that it not only disturbs the sound order of commercial transactions, but also disturbs the national legitimate exercise of the right to collect taxes, thereby impairing the tax justice. In particular, the Defendant committed another crime during the period of repeated crimes, and used it in various criminal acts by creating a juristic person without the intention to operate the business. Considering such circumstances, the Defendant may not be held liable for the corresponding crime against the Defendant.

However, the defendant was involved in the crime according to the proposal of E, and planning the crime in advance and planning the overall crime do not seem to have been comprehensively controlled. The profits earned by the defendant from the crime of this case appear to have not been much in light of the total scale of the crime, the defendant did not have the same criminal records, and there is a need to determine punishment in consideration of equity with the case where the punishment is judged concurrently with the crime of violation of the Commercial Act, and other punishment conditions as ordered in the records and arguments of this case, such as the defendant's age, occupation, character and conduct, family relationship, the background and result of the crime of this case, circumstances after the crime, etc., are considered.

Judges

The presiding judge, the Kim Jong-dong

Judges Kim Gin-han

Judges Doi-ro

Note tin

1) Around 2013 to 2014, the Defendant also created and sold the so-called large passbook under D’s name. Since the arrest on June 22, 2015 due to criminal facts, etc., the Defendant was sentenced to imprisonment with prison labor for three years as stated in the first head’s violation of the Commercial Act, etc. (see, e.g., evidence Nos. 13, 24, 25 and evidence Nos. 95). Meanwhile, the Defendant stated that “D is a old company that is a type of business that distributes the mobile phone scams, such as mobile phone cases, but is created to obtain the loan (see, e.g., evidence Nos. 92).

2) On January 20, 2016, at the time of undergoing a police investigation, the Defendant was a person with bad credit standing in the middle of 2014 and required to pay money. The Defendant heard that he/she would be entitled to 2% of the total amount of transaction when he/she was issued and issued a fake tax invoice at a total of 1 billion won per year as he/she traded with the Indian company, and then sought a tax invoice as if he/she transacted with the Korean judicial scrivener office on January 2015. In addition, in addition, the type of business was found in the category of transaction in D, and through his/her friendship, the Defendant issued D's business registration certificate, head of Tong, c card, corporate seal impression to F. The Defendant made a statement to the effect that he/she was issued KRW 900,000,000,000 with 300,000 won or more as if he/she had been issued with 300,000 won or more.

3) The Defendant stated to the effect that he received KRW 6.5 million through the W branch office located in Seoul, which he became aware of via the branch office in Seoul, and issued a false tax invoice directly to the karaoke machine and its main offices in the name of D, and that he directly issued a false tax invoice Nos. 4 through 31 in the trial process (see, e.g., the summary of the trial proceedings held on October 27, 2016). However, except for the above tax invoice Nos. 5 through 7, 10, 21, 23, 30, etc., the entire Defendant was issued as the date of preparation after June 22, 2015 (see, e.g., evidence Nos. 4369-69).

4) The Defendant stated to the effect that, at the time of receiving the investigation from the Sungnam Tax Office, he was issued a false tax invoice directly to her workers, and received 5% commission. In this Court, the Defendant stated to the effect that she her her her her her her her her her her her her her her her her her her her her her her she was her her her her her her her her her her her her her her her her her her her her her her her her her her her her her

5) The content that appears to be related to the instant case among the stories divided by E, in which the Defendant sought an interview, is as follows.

Around August 4, 2015, the Defendant: (a) called “E, who was visiting the detention center and was found to have been visiting the detention center, with 5% as an accountant (or a harsh tax accountant) and engaged in transaction on data; (b) and (c) called “E was not receiving 10-13% as well as additional tax refund; and (d) he responded to the purport that “E was receiving more benefits from global income tax; (b) it is not so.” Furthermore, around July 27, 2015, the Defendant reported additional tax to the effect that he reported additional tax to the name of the Defendant because the person whose name was lost, was transferred to the name of the Defendant; and (b) the Defendant did not raise any objection thereto (see, e.g., a record of evidence Nos. 1748, Aug. 4, 2015).

On August 14, 2015, the Defendant: (a) received contact from the National Tax Service regarding taxes from E around 12 days from August 14, 2015; and (b) divided the opinions about the necessity of KRW 40 million from a separate agreement amount (see, e.g., the evidence record Nos. 1888, Aug. 14, 2015).

On September 4, 2015, the Defendant began to conduct an investigation into a tax invoice from the tax office to E as a matter of tax invoice, and the amount of more than 3 billion won should be more than 3 billion won, and the amount of fine is more than 2.5 billion won, but the Defendant was punished as a result of the first quarter. However, the Defendant stated to the effect that the amount of fine is more than 290 million won, because the special law is allowed to be attached (see the record of evidence Nos. 1995-9, Sept. 4, 2015).

In examining the series of meetings after ○○, there is no discovery of the circumstances where the Defendant intended to recover the corporate passbook, authorized certificate, etc. originally provided (see e.g., evidence Nos. 17 through 23).