Defendant

Defendant and Prosecutor

Park Jin-Jin Park

Law Firm Sejong, Attorneys Yellow-ho et al., Counsel for the defendant-appellant

Seoul Central District Court Decision 2004Gohap195 Delivered on July 30, 2004

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment with prison labor for not less than two years and six months and a fine not exceeding six billion won.

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period calculated by converting the 6,000,000 won into one day.

171 days of detention before the judgment of the court below shall be included in the above imprisonment.

However, the execution of the above imprisonment shall be suspended for three years from the date this judgment becomes final and conclusive.

1. Summary of grounds for appeal;

A. Defendant's assertion of misapprehension of legal principles or mistake of facts

(1) The evidence presented by the prosecutor alone cannot be acknowledged that the above claim was owned by the former president, who is the father of the defendant, at the time when the defendant received the total face value of 7.355 million won of the national housing bonds stated in the facts constituting the crime of the judgment below on December 2000. However, the court below erred by misapprehending the legal principles concerning donation by recognizing the above claim as owned by the former president of the non-indicted 1, and by violating the rules of evidence, thereby adversely affecting the conclusion of the judgment.

(2) On January 1, 1988, the Defendant was entrusted to Nonindicted 2 of the Ministry of Foreign Affairs by requesting the management of approximately KRW 1.83 billion for the Defendant’s marriage congratulations. Nonindicted 2 of the Ministry of Foreign Affairs in the Ministry of Foreign Affairs, who was in charge of managing KRW 170 million in total, increased the amount of KRW 170 million in his own money, and returned the Defendant to the Defendant with the Defendant’s bonds indicated in the claim list in the attached Form of the judgment below on December 2000. Accordingly, the Defendant was aware that he was able to increase his amount of money he was in charge, and was used only by receiving the above credit return from Nonindicted 2, while he was aware that he was able to receive the gift of the property of the former president or the Ministry of Foreign Affairs, his father, and there was no criminal intent to evade tax.

B. Prosecution's assertion of mistake

The lower court acquitted the Defendant of the charges on the part concerning the claims related to Nos. 2, 3, 4, 5, and Nos. 7, 39, 7, 7, 9, 12, and 10, and 10, among the attached claim list of the attached list of the lower judgment’s judgment. According to the evidence submitted by the prosecutor, it is sufficient to recognize the fact that the Defendant donated the above claims to Nonindicted 1 former president or Nonindicted 2 of the Ministry of Foreign Affairs. However, the lower court erred by misapprehending the facts against the rules of evidence by determining that there was no evidence to support the fact that the Defendant donated the above claims from Nonindicted 1 former president or the Ministry of Foreign Affairs to Nonindicted 2 of the Ministry of Foreign Affairs (the prosecutor alternatively stated the actual donor in the facts charged).

C. The defendant and prosecutor's assertion of unreasonable sentencing

The defendant's punishment against the defendant is too unreasonable, while the prosecutor is too uneasible that the court's punishment against the defendant is too uneasible.

2. Determination

A. Judgment on the misapprehension of legal principles or mistake of facts by the defendant

(1) 피고인이 원심 법정에서 한 진술의 일부 등 원심이 적법하게 조사, 채택한 증거들에 의하면, 공소외 1 전 대통령의 차남인 피고인이 2000. 12. 말경 서울 강남구 압구정동 소재 피고인의 외조부인 공소외 2의 집에서 그로부터 원심판결 별지 채권내역일람표 기재 국민주택채권 액면가 합계 16,705,000,000원 상당을 무상으로 교부받은 사실, 그중 원심판결 범죄사실 기재 국민주택채권 액면가 합계 73억 5,500만 원 상당은 그 자금원이 공소외 1 전 대통령이 관리하던 계좌에서 유래된 사실(피고인의 변호인은 항소이유서의 주된 내용으로 자금추적도에 대한 원심 판단의 부당성을 지적하고 있으나 항소이유서의 내용은 피고인의 변호인이 원심 제10회 공판기일에서 제출한 추가변론요지서의 내용과 다르지 아니하고, 원심은 위 변호인의 주장에 대하여 ‘자금추적에 관한 주장과 판단’에서 별도로 설시하였는 바, 원심의 판단은 충분히 수긍이 간다)을 각 인정할 수 있고, 그 밖에 위 증거들에 의하여 인정되는 다음과 같은 정황들, ① 피고인이 결혼한 1987. 12. 29. 이전에 공소외 1 전 대통령이 관리하던 계좌에서 출금된 자금이 위 국민주택채권의 자금원으로 되어(자금추적도 1, 4 참고), 결국 피고인 주장과 같이 결혼 축의금으로 증식된 자금이 위 국민주택채권의 매입 자금원이 될 수는 없는 점, ② 공소외 1 전 대통령은 1988. 11.경부터 1990.말경까지 백담사에서 은둔생활을 하고, 다시 1995. 12.경 구속되었다가 1997. 12.경 석방되었는데, 위 국민주택채권 매입 자금원의 흐름을 보면 공소외 1 전 대통령이 백담사 은둔생활을 마친 후부터 1995. 12.경 구속되기 전까지 사이에 금융기관을 통해 거래가 되다가 공소외 1 전 대통령이 구속된 기간 동안에는 전혀 거래가 없었으며 공소외 1 전 대통령이 석방된 후인 1998.경부터 다시 금융기관을 통해 거래가 이루어져, 공소외 1 전 대통령의 신병과 위 국민주택채권 매입 자금원의 흐름이 그 궤적을 같이 하고 있고, 공소외 1 전 대통령이 1995. 12.경 구속되기 전까지 위 국민주택채권의 매입 자금원을 직접 관리한 사실이 인정되며( 공소외 1 전 대통령에 대한 피의자신문조서등본, 공소외 4, 공소외 5, 공소외 6에 대한 각 진술조서등본), 1998. 후에도 공소외 1 전 대통령의 자금을 관리하였던 공소외 7이나 비서관인 공소외 6, 공소외 8이 위 국민주택채권 매입 자금원에서 파생된 자금을 관리하는 데 관여한 사실에 비추어, 위 국민주택채권의 매입 자금원은 위 국민주택채권을 매입하는데 사용되기까지 공소외 1 전 대통령에 의해 관리된 것으로 보이는 점, ③ 피고인은 미국 유학 중 귀국하여 결혼하고 학업을 계속하기 위해 출국하였다가 1991.경 귀국하여 1994.경까지 대우에서 근무하다가 일본으로 유학을 떠났으며 1999.경 귀국하였는데 피고인이 1991.경부터 1994.경까지 국내에서 직장생활을 하거나 1999.경 귀국한 후에도 외조부 공소외 2에게 결혼 축의금의 관리나 운용실적 등에 관하여 전혀 문의하거나 확인한 적이 없고, 피고인이 2000년 가을부터 2001년 중반까지 여러 번에 걸쳐 장인인 공소외 9로부터 30억 원을 차용하고, 2000년 봄부터 여름경 사이 외조부 공소외 2로부터 수회에 걸쳐 반복해서 금원을 차용, 변제하였고 많을 경우 15억 정도가 되었으며, 장인인 공소외 9로부터 차용한 돈으로 외조부 공소외 2로부터 차용한 돈을 변제하기도 하였다는 것인 바, 이와 같은 피고인의 행적에 비추어 피고인이 결혼 축의금을 외조부 공소외 2에게 맡겨 거액의 자금으로 증식, 보관하였다가 이를 돌려받았다고 보기 어려운 점등에 비추어 보면, 피고인이 받은 위 국민주택채권은 공소외 1 전 대통령이 소유·관리하던 자금으로 매입하였던 것을 공소외 2를 통해서 피고인에게 증여한 것이라고 보는 것이 타당하므로, 위 국민주택채권들 중 액면가 합계 73억 5,500만 원 상당의 실질적 증여자를 공소외 1 전 대통령으로 인정하는 한편, 피고인이 1988. 1.경 자신의 결혼 축의금을 외조부에게 맡겨 증식하게 하였던 것을 나중에 돌려 받은 것일 뿐이라는 취지의 피고인의 변소를 배척한 다음, 그 후에 이루어진 피고인의 증여세 포탈 행위에 대하여 유죄로 판시한 원심의 판단은 결론에 있어 정당하고 거기에 판결에 영향을 미친 사실오인 등의 위법이 없으므로, 이를 다투는 피고인의 주장은 이유 없다.

(2) For the crime of tax evasion, a person liable for tax payment recognizes that his act constitutes fraud or other unlawful act and thereby, he commits or attempts to commit an unlawful act (see Supreme Court Decision 98Do667, Apr. 9, 199). As seen above, it cannot be deemed that the above national housing bond was purchased with the Defendant’s funds raised in the Defendant’s marriage congratulations, and that the Defendant received a national housing bond of a total amount of 16.7 billion won after 13 years from the time of marriage and received a return of the increased property from his marriage congratulations, and it cannot be understood that the Defendant’s career and social status as the Defendant stated in the records of the instant case, and that the Defendant’s status as the seller by using the borrowed and borrowed account or by acting for the seller, etc. can be sufficiently recognized in light of the specific form of the act, etc. of tax evasion.

(3) However, in calculating the amount of gift tax ex officio, the court below assessed the value of the above national housing bonds as KRW 6,537,294,50, and calculated it by multiplying 50% after deducting KRW 30,000,000. However, according to the Inheritance Tax and Gift Tax Act applied on or around December 200, where the tax base exceeds KRW 3,000,000,000,000,000 + KRW 537,294,500,000 exceeds KRW 3,000,000,000. Accordingly, the court below erred in calculating the amount of inheritance tax by calculating the amount of inheritance tax by the former president, who is his father, of the defendant.

B. Judgment on the prosecutor's assertion of mistake

(1) As to the facts charged that the Defendant donated the remainder of the claim from Nonindicted Party 1;

Of the annual number 2, 3, 4, 5, 39, and 7 of the year Nos. 7 from the first sale date to the 10 account in the attached table of the judgment below, the first purchase resources cannot be traced, or it is impossible to track because the bonds released from the account in the name of Nonindicted 11 or the purchase resources thereof are not specified. Of the annual number Nos. 12 and 10 of the attached table of the judgment below, the claim Nos. 12 and 10 of the annual number Nos. 9 of the attached table of the judgment below is not confirmed by the defendant with the bonds sold to Nonindicted 12 by Etd Securities Employees to Nonindicted 13, and therefore, there is no evidence to acknowledge the fact that the defendant received the above bonds from the former president because the purchase funds of the above bonds were derived from the funds managed by Nonindicted 1.

However, it is doubtful that the above bonds were deposited in the account of Nonindicted Party 10, which is the Defendant’s borrowed account, with the total face value of KRW 7.355 million, which was recognized as having been donated by the former president of Nonindicted Party 1, or sold to Nonindicted Party 13, and it was recognized that the Defendant managed the sales fund, and that the Defendant did not receive a donation from the former president of Nonindicted Party 1.

However, even if a certified judicial scrivener, etc. who acts on behalf of the general public such as registration and registration, purchases on behalf of the general public and sells at a discount by most immediately through a certified judicial scrivener ( several million won or more per office) but does not have a maturity, and a large-scale bond dealer, which is finally created through the retail of bonds and a wholesale wholesaler, and sells at a discount or sale to other bond dealers, or sells by suffering from a financial institution, it is insufficient to conclude that the purchase funds are equal or have been issued by the same person solely on the grounds that the claim stated in the attached list of claims in the judgment below was entered in the financial institution or sold to bond dealers in the same type (referring to the same type as the first class, the first class, the first class, the first class, and the month) on behalf of the general public. Thus, it is insufficient to conclude that the purchase funds were equal or have been issued by the same person on the same day.

Therefore, the lower court’s determination that the charge that the Defendant received the remainder of the claim as gift from Nonindicted 1’s former president is justifiable in determining that there is no evidence to acknowledge it.

(2) As to the fact that the Defendant donated the remainder of the claim from Nonindicted 2 (elective)

As seen earlier, the Defendant’s alternative assertion that the claim in the attached list of the judgment of the court below was delivered to Nonindicted 2 at the end of December, 200, by the Defendant for the proliferation of the Defendant’s claim, was returned to Nonindicted 2. On the other hand, the Defendant’s selective assertion that the Defendant, his father, was the property owned and managed by the former president of Nonindicted 1, who was the Defendant’s father, is nothing more than denying it, and there is insufficient evidence to acknowledge it as mentioned above, and it is difficult for other third parties, other than the above two, to provide the Defendant with a large amount of claim for life-saving as a lump sum free of charge through Nonindicted 2. Thus, it is reasonable to view that the remainder of the above claim is a donation from Nonindicted 2, unless there is any other evidence.

[Additional, the act of evading gift tax refers to the act of evading gift tax by fraud or other unlawful act by a person liable to pay gift tax in accordance with the provisions of the Inheritance Tax and Gift Tax Act, so long as the donee is recognized as a gift act by another person liable to pay gift tax, the donee may be punished pursuant to Article 9(1) of the Punishment of Tax Evaders Act in cases where the donee is liable to pay gift tax in order to evade it, and in cases where the donee commits fraud or other unlawful act to evade it, it is difficult to specify who is the donor, or there is a possibility that the actual owner of the gift property may be another person who is not the donor in the process of establishing the liability to pay gift tax, and it cannot be said that it does not constitute a crime. Therefore, even though the actual owner of the gift tax is a third person who is not the non-indicted 2, even if the actual owner of the gift tax is not the non-indicted 2, it may not be exempted from punishment if the defendant, who is liable to pay gift tax on the gift property, committed fraud or other unlawful act in order to evade it (However

However, according to the evidence duly adopted by the lower court, the Defendant: (a) purchased the above 70 billion won of loan 2, 3, 4, 5, 700, 12, and 100,000 won per annum 70,000 won of loan 20,000 won per annum 10,000 won (the above 40,000 won of loan 20,000 won of loan 10,000 won of loan 20,000 won of loan 10,000 won of loan 20,000 won of loan 10,000 won of loan 20,000 won of loan 40,000 won of loan 10,000 won of loan 20,000 won of loan 10,000 won of loan 20,000 won of loan 10,000 won of loan 10,000 won of loan 205.

On the other hand, although the defendant alleged that he had no intention to commit a crime of tax evasion as to this part of the facts charged, it is sufficient to recognize the defendant's intention to evade tax as to this part of the facts charged.

3. Conclusion

The part of the facts charged that the court below found guilty was erroneous in calculating the evaded tax amount, and the part of the facts charged that the defendant, among the facts charged that the court below acquitted, received a gift of a total of KRW 9.34 billion from Nonindicted 2, a total of the face value of the national housing bond from the national housing bonds, is sufficient to prove this, and the court below erred by misapprehending the facts, which affected the conclusion of the judgment, and the prosecutor's appeal pointing this out has merit, and therefore, the judgment of the court below is reversed by applying Article 364 (2) and (6) of the Criminal Procedure Act,

The Defendant is the Vietnam of the former president of Nonindicted Party 1, and Nonindicted Party 2 is the external assistance division of the Defendant.

On December 2, 2000, the Defendant received KRW 11,979,642,500 from Nonindicted 2 of the Ministry of Foreign Affairs, a sum of the face value of national housing bonds listed in the attached sheet of bond details, and the market value of KRW 16.69,5 million, without compensation.

However, among the attached list Nos. 1, 6, and 7, No. 111 and 44, No. 8, a total face value of 7,35,00,000, and the market value of 6,537,294,500 among 7,00, No. 187, No. 7, and No. 97, and 10, the actual donor was the President of the Republic of Korea before Non-Indicted 2. The Defendant, who purchased the above bonds from Non-Indicted 2 under the name of Non-Indicted 6, No. 10, No. 206, no. 7, no. 97, no. 10, no. 106, no. 106, no. 7, no. 90, no. 106, no. 106, no. 106, no. 106, no. 207, and 108,000 won.

The summary of evidence admitted by a member is the same as the corresponding column of the judgment of the court below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 8(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 9(1) of the Punishment of Tax Evaders Act (Selection of Imprisonment with Labor) and Article 8(2) of the Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 6 of the Criminal Act

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62 (Execution of Additional Imposition Charges on Non-Indicted 1) of the Criminal Act is likely to be criticized in light of the fact that part of the funds managed by Non-Indicted 2 was donated from Non-Indicted 2 while the part of the funds managed by Non-Indicted 1 was being used for a considerable period of time and was donated from Non-Indicted 2 without reporting it properly. However, it is not acquired by the above funds itself in an unlawful manner, but gift tax evaded may be collected by adding additional tax. After the investigation of this case, it is assumed that the defendant's mother, Non-Indicted 21, who contributed a large amount of money to the intent that the defendant's mother and non-Indicted 21 want to take a preference against the defendant after the investigation of this case, he paid the additional imposition charges on Non-Indicted 1, and since the defendant was already detained for a considerable period of time and a large amount of fine was imposed concurrently, the sentence imposed

Of the facts charged in the instant case, regarding the Defendant: (a) donated 10 million won at par in addition to 99 bonds No. 10 per annum of the bond specification table from the former president or Nonindicted 2 of the Ministry of Foreign Affairs and evaded gift tax on the gift of KRW 10 million; (b) as seen earlier, there is no evidence to support the fact that the Defendant received a donation of one bond from the former president or Nonindicted 2 of the Ministry of Foreign Affairs and Trade; and (c) thus, the Defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act; or (d) as long as the Defendant is found guilty of the facts charged for a single crime, the Defendant

[Attachment]

Judges Lee Hong-hoon (Presiding Judge)