Defendant 1 and two others

Defendant 1 and Prosecutor

Yellow Jae-dong (prosecution), leaptable type (public trial)

Attorney Lee Jae-soo et al.

Chuncheon District Court Decision 2014Ra231 Decided May 21, 2014

Of the judgment of the court below, the guilty portion against Defendant 1 shall be reversed.

Defendant 1 shall be punished by imprisonment for eight months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

To order Defendant 1 to provide community service for 120 hours.

The Prosecutor’s appeal as to the acquittal of Defendant 1 and the appeal as to Defendant 2 (Defendant 4) and Defendant 3 (Defendant 7) are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1 (Unfair Punishment)

The punishment of the lower court (fine 20 million won) is too unreasonable.

(b) Prosecutors;

(1) misunderstanding of legal principles (the violation of the Punishment of Tax Evaders Act against Defendant 1)

In accordance with the Procedure for the Punishment of Tax Evaders Act, the head of the competent tax office may not take a disposition of notification if he/she files a complaint against a tax offense, and the disposition of notification that was issued after the accusation shall be deemed null and void as it is significant and clear. Therefore, even if the defendant complies with the disposition of notification that was made after the accusation, it is based on an invalid disposition and shall not be effective. Nevertheless, the court below erred by misapprehending the legal principles on the validity, etc.

【Unjustifiable sentencing

The sentence of the court below against the Defendants (the fine of KRW 20 million for the Defendants, the fine of KRW 10 million for the Defendants 2 (the first instance court: Defendant 4), and the fine of KRW 15 million for the Defendants 3 (the first instance court: Defendant 7) is unfair because it is too uneasible.

2. Judgment on misapprehension of legal principles

A. Summary of Defendant 1’s violation of the Punishment of Tax Evaders Act

Defendant 1 was supplied with oil equivalent to KRW 850,513,683 in total between April 1, 2012 and October 30, 2013 as shown in the attached Table 6 of the lower judgment, but was falsely issued a tax invoice as if he was supplied with oil equivalent to KRW 1,195,565,053.

B. The judgment of the court below

The court below, after informing Defendant 1 of the charge of violating the Punishment of Tax Evaders Act, again made a notification disposition to Defendant 1. Although the above notification disposition was illegal in violation of the Procedure for the Punishment of Tax Evaders Act, it cannot be deemed that the defect is serious or obvious. Thus, if Defendant 1 paid a fine in accordance with the notification disposition, the court below acquitted Defendant 1 of this part on the ground that it constitutes a final and conclusive judgment.

C. Judgment of the court below

According to the Procedure for the Punishment of Tax Evaders Act, a notice disposition of 1. 2, an accusation of 2. 3. Free suspicion (Article 13), and the head of the competent tax office shall, if he/she obtains the probability of a tax offense, notify the person subject to the disposition (Article 15(1)), and if the person subject to the disposition fails to comply with the disposition within the given period (Article 17(2)), he/she shall file a complaint against the person subject to the disposition (Article 17(2)): Provided, That if he/she is deemed to be punished by imprisonment due to extenuating circumstances, he/she must immediately file a complaint against the person subject to the disposition (Article 17(1)).

In accordance with the language and structure of the Act on the Procedure for the Punishment of Tax Evaders, if the head of the competent tax office immediately lodgess an accusation without going through a notification disposition, it shall not be deemed that the disposition of notification cannot be taken again. Therefore, if the head of the competent tax office again renders a notification disposition after filing a complaint against the tax offense case, such

① However, the head of the competent tax office is responsible for the decision of the head of the competent tax office on whether to take a disposition of notification on a tax offense, the normal relation and payment ability, etc. in which a person subject to a tax offense immediately files an accusation without going through a disposition of notification, and the relationship or order of a notification disposition and an accusation under the Procedure for the Punishment of Tax Evaders Act can be clear from the public official in charge of the relevant duties. However, it cannot be readily concluded that the person subject to the disposition and the general public with a sound common sense are clear. ③ Since an accusation by the head of the competent tax office against a tax offense can be revoked before the pronouncement of the judgment of the first instance court (see Supreme Court Decision 4290 Form58, Mar. 29, 1957), it is interpreted that the defect of the notification disposition made after the accusation against Defendant 1 is unlawful, and thus it is difficult to deem that the defect of the notification disposition made after the accusation is invalid because it is serious and obvious.

In the end, the notice of disposition by the director of the three-dimensional tax office cannot be deemed null and void, and as long as Defendant 1 performed it within the time limit set by the notice, the decision of the court below on the violation of the Punishment of Tax Evaders Act against Defendant 1 by applying Article 15(3) of the Procedure for the Punishment of Tax Evaders Act should be sentenced to acquittal in accordance with Article 326 subparag. 1 of the Criminal Procedure Act, and the decision of the court below that made the conclusion is justifiable.

3. Judgment on the assertion of unfair sentencing

A. Defendant 1

In the instant crime, Defendant 1 manufactured fake petroleum products of at least KRW 700 million, mixed with light oil and oil, and there is a need to strictly punish Defendant 1 as it causes confusion in the distribution order of petroleum products and impacts on automobiles, etc. as well as considerable damage, such as causing environmental pollution. Taking into account the following factors: equity with the punishment against Co-Defendant 1; the Defendant’s age, occupation, motive of the crime; relationship with the victim, means and consequence; the period and frequency of the crime; and the circumstances after the crime, etc., the lower court’s punishment is too unreasonable.

(b) Defendant 2 (the first instance: Defendant 4), Defendant 3 (the first instance court: Defendant 7);

Defendant 2 (the first instance court: Defendant 4) and Defendant 3 (Defendant 7) made a confession of the facts of crime, and they are divided. The victim wants to take the front line of the above Defendants by mutual consent with the victim and the victim, and there is no criminal record of the same kind of crime. In full view of various sentencing conditions in the instant case, such as the age, occupation, motive of the crime, relationship with the victim, means and consequence of the crime, etc., the lower court’s punishment against the above Defendants cannot be deemed as being too unjustifiable and unreasonable.

4. Conclusion

Therefore, the appeal against the prosecutor's acquittal of Defendant 1 and appeal against Defendant 2 (Defendant 4) and Defendant 3 (Defendant 7) are without merit, and it is dismissed pursuant to Article 364(4) of the Criminal Procedure Act, and the prosecutor's appeal against Defendant 1 is with merit. Thus, the above part of the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts constituting an offense and evidence recognized by this court is the same as that of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 44 subparag. 3, 29(1)1, and 29(1)1 of the respective Petroleum and Petroleum Substitute Fuel Business Act

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Social service order;

Article 62-2 (1) of the Criminal Act

Judges Lee Jong-woo (Presiding Judge) (Presiding Judge)