[1] Whether a single shareholder in a so-called one company may be the subject of embezzlement against the company (affirmative), and whether the circumstance that the company has a separate claim against a company for provisional collection has an impact on the crime of occupational embezzlement already established (negative)

[2] The elements to avoid liability for the crime of tax evasion against corporate tax in a case where the amount of the public fund was disposed of as deductible expenses after excluding the public fund from the ordinary ordinary interest by means of a false appropriation or excessive appropriation of expenses

[3] In a case where an entrepreneur who received a service receives an input tax deduction because of excessive appropriation of the value, the degree of perception necessary for recognizing that the entrepreneur has an intention to evade the value-added tax

[1] Articles 35 (1) and 356 of the Criminal Act / [2] Article 9 (1) 3 of the Punishment of Tax Evaders Act, Articles 307 and 308 of the Criminal Procedure Act / [3] Article 9 of the Punishment of Tax Evaders Act

[1] Supreme Court en banc Decision 83Do230 delivered on December 13, 1983 (Gong1984, 227), Supreme Court Decision 84Do1581 delivered on September 25, 1984 (Gong1984, 1761) Supreme Court Decision 88Do936 delivered on July 26, 198 (Gong1988, 1171), Supreme Court Decision 2004Do7585 Delivered on June 16, 2006 / [2] Supreme Court Decision 87Do966 delivered on October 10, 198 (Gong1989, 1702), Supreme Court Decision 201Do5459 Delivered on July 26, 2002 (Gong203639, Feb. 26, 2005) / [306Do29649 delivered on July 26, 2002)

Defendant

Defendant

Han Law Firm, Attorneys Kang Han-han et al.

Busan High Court Decision 2005No8 delivered on July 21, 2005

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

The grounds of appeal are examined.

1. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

In so-called one-person company, if the subject and the principal of the act are clearly separate and one-person company uses the company's funds as the intent of unlawful acquisition, embezzlement is established. Since the company's funds in the occupational custody are embezzled with the intent of unlawful acquisition, so long as the crime is established by embezzlement of the company's funds, the mere fact that the company has a separate claim against the company does not affect the crime of occupational embezzlement (see, e.g., Supreme Court Decision 2004Do7585, Jun. 16, 2006).

Examining the evidence adopted by the court below in light of the records, the judgment of the court below that recognized that the Defendant embezzled the construction work for personal purposes as stated in the crime sight table, which was just in accordance with the above legal principles, and there were no errors in the misapprehension of legal principles as to the intention of unlawful acquisition, or in violation of the rules of evidence, contrary to the allegations in the grounds of appeal.

2. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (taxes)

A. Part of corporate tax evasion

According to the Corporate Tax Act, the items recognized as deductible expenses and the permissible limit thereof are stipulated in cases where a corporation has disbursed expenses due to the necessity of its business operation. Thus, in cases where the amount was used as deductible expenses by means of a false appropriation of expenses or an excessive appropriation, excluding public funds, and then disposed of as deductible expenses, even if such amount was used for the whole company's business operation, unless it proves that it is an item that can be recognized as deductible expenses and is within the permissible limit of deductible expenses (see Supreme Court Decision 2002Do2569, Sept. 24, 2002, etc.).

Examining the reasoning of the judgment below in light of the records, the judgment below is just in accordance with the above legal principles, and there is no violation of the rules of evidence as otherwise alleged in the ground of appeal.

B. Value-added tax evasion part

In cases where an entrepreneur provided with a service submits an excessive tax invoice received from the supplier in return and payment of the tax base of value-added tax and the amount of the tax payable, and receives the deduction of the input tax amount from the supplier in return for the excessive appropriation of the value-added tax amount, the entrepreneur who received the deduction of the input tax amount under Article 9 of the Punishment of Tax Evaders Act should be aware that, in addition to the recognition that the supplier is entitled to receive the deduction of the input tax amount under Article 9 of the Punishment of Tax Evaders Act, it would result in a decrease in national tax revenues by evading the liability for the payment of the value-added tax on the excessive appropriation of the input tax amount by filing a return and payment of the tax base and the amount of the tax payable, other than the output tax on the excessive appropriation of the supplier, or by evading the liability for the payment of the input tax on the excessive appropriation of the input tax amount after paying the whole amount of the output tax stated in the tax invoice (see, e.g., Supreme Court Decisions 90Do1955, Oct. 16, 19901>

According to the records, each construction company of this case received a tax invoice with excessive supply value from the subcontractor construction company and received input tax deduction, while paying the value-added tax calculated based on the excessive supply value to the subcontractor construction company. Thus, the court below should have deliberated and judged whether obtaining the input tax deduction from the excessively appropriated tax invoice would result in the reduction of national tax revenues, but it erred in the misapprehension of legal principles as to the intention of the evasion of value-added tax, thereby failing to exhaust all necessary deliberation.

C. Ex officio determination

(1) The lower court found Defendant guilty by applying Article 8(1)2 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 7767 of Dec. 29, 2005; hereinafter “former Act”) and Article 9(1)3 of the Punishment of Tax Evaders Act prior to the amendment, comprehensively with respect to crimes of Article 2 of the judgment.

However, according to Article 8 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “new Act”) which was amended by Act No. 7767 of December 29, 2005 and enforced March 30, 2006, Article 8 (1) 2 of the former Act provides that an aggravated punishment shall be imposed on a person who commits a crime provided for in Article 9 (1) 3 of the Punishment of Tax Evaders Act (hereinafter “annual evaded tax amount of 200 million or more but less than 50 million won”) only where “the annual evaded tax amount of 50 million or more” is revised in the new Act. Thus, the new Act provides that an aggravated punishment shall be imposed only on a person who commits a crime under Article 9 (1) 3 of the Punishment of Tax Evaders Act (hereinafter “new Act”). As a result, the lower court’s judgment on this part is erroneous and thus cannot be maintained.

(2) "Annual evaded tax amount, etc." under Article 8 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes means the total amount of tax evaded or unlawfully refunded for each year (from January 1 to December 31) regardless of the taxable period, etc. of each tax item (see, e.g., Supreme Court en banc Decision 99Do3822, Apr. 20, 200; 2005Do9546, Feb. 15, 2007). Meanwhile, Article 9-3 of the Punishment of Specific Crimes Act provides that the period of time of tax evasion under Article 9-3 of the Punishment of Tax Evaders Act shall be when taxes are imposed and collected by a taxpayer's report, after the government's decision or investigation on the tax base of the relevant tax item is made, and in cases of taxes not falling under the same, when the time limit for payment expires, the court below calculated the amount of tax evaded or unlawfully refunded for each year and applied the amount of tax to the specific crime under Article 8 (1).

3. Conclusion

Therefore, the part of the judgment of the court below regarding the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) shall be reversed. Since each of the above crimes was sentenced to a single punishment in relation to the remaining convictions against the defendant and concurrent crimes under the former part of Article 37 of the Criminal Act, the entire judgment of the court below is reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per

Justices Park Ill-sook (Presiding Justice)