[1] Whether the crime of tax evasion is an objective crime (negative), and the intent of the crime in relation to the crime of tax evasion

[2] The meaning of "Fraud and other unlawful acts" under Article 9 (1) of the Punishment of Tax Evaders Act

[1] Article 9(1) of the Punishment of Tax Evaders Act / [2] Article 9(1) of the Punishment of Tax Evaders Act

[1] Supreme Court Decision 98Do667 delivered on April 9, 199 (Gong1999Sang, 927) / [2] Supreme Court Decision 2001Do3797 delivered on February 14, 2003 (Gong2003Sang, 871) Supreme Court Decision 2002Do4549 delivered on December 12, 2003

Defendant

Defendant

Law Firm Pacific, Attorneys Song Jin-hun et al.

Seoul High Court Decision 2002No3086 delivered on March 26, 2003

The appeal is dismissed.

1. The crime of tax evasion, which is established by a fraudulent or other unlawful act, is not an intentional crime, and it does not require the defendant to evade or evade taxes. In such a crime of tax evasion, the term "the criminal intent" means that the person liable for tax payment commits or attempts to commit an unlawful act while recognizing that his act constitutes a fraud or other unlawful act and recognizing that the act would result in the result of tax evasion (see Supreme Court Decision 98Do667 delivered on April 9, 199).

In full view of the evidence in its reasoning, the court below acknowledged the following facts: (a) the Defendant, while knowing well the fact that KRW 2,743,616,818, which was sold in 201 in relation to the export of the goods (science equipment and parts) in this case, should be attributed to the gross income for 2001 business year, has excessively increased net income in 2001 due to the above increase in sales; (b) while the above sales amount in 2002, which was the next business year, would have been reduced in sales amount and would have increased only expenses in 2002, the Defendant reported and paid corporate tax base and tax amount of corporate tax corresponding to the omitted sales amount by omitting the above sales amount from the gross income for 2001 business year; and (c) determined that if the above sales amount was omitted, it is difficult to readily find out that there was an omission of corporate tax due to an omission of the sales amount and any other omission of corporate tax due to an act of tax evasion, etc., the Defendant did not withdraw the sales amount of this case by fraud.

In light of the above legal principles and records, the above recognition and judgment of the court below are just, and there is no violation of the rules of evidence or misapprehension of legal principles as to the intention to evade tax, as otherwise alleged in the ground of appeal No. 1.

2. The "Fraud and other unlawful acts" under Article 9 (1) of the Punishment of Tax Evaders Act refers to fraudulent or other active acts that make it impossible or considerably difficult to impose and collect taxes, and it does not constitute mere failure to report under tax law or making a false report without accompanying any other acts, as otherwise alleged in the ground of appeal (see Supreme Court Decision 2002Do4549, Dec. 12, 2003, etc.). However, according to the records, the defendant did not neglect the report of the sales amount to be attributed to the business year 2001, and further, it did not constitute a fraudulent act to offset the payment amount paid in advance for the purpose of preventing the omission of the sales amount from being easily discovered, and accordingly, it can be acknowledged that the defendant prepared a false statement of the balance sheet, statement of revenue amount by account, and revenue amount after adjustment and submitted it to the tax authority, and thus, the defendant's act constitutes a fraudulent act or unlawful act in violation of the rules of evidence, and thus, the court below's judgment is justified.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition.

Justices Byun Jae-chul (Presiding Justice)