Defendant

Defendant

Kim Jong-hee

Law Firm Barun Seoul, Attorneys Park Ho-ju et al.

Seoul Central District Court Decision 2008 Gohap1438, 1447 (Consolidated), 2009 Gohap689 (Consolidated) Decided September 16, 2009

Seoul High Court Decision 2009No2487 Decided January 8, 2010

Supreme Court Decision 2010Do1191 Decided January 27, 2011

The part of the judgment of the court below against the defendant is reversed.

Defendant shall be punished by imprisonment with prison labor for not less than two years and six months and by a fine not exceeding 19 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 amount of KRW 30 million into one day.

Of the facts charged in the instant case against the Defendant, the charge of giving property in breach of trust is acquitted.

1. Object of the political party deliberation;

A. The lower court convicted the Defendant of all the charges of this case.

The Defendant appealed on the grounds of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax evasion and evasion of transfer income tax), the offering of a bribe to Co-Defendant 2 and Nonindicted 4, the giving of property in breach of trust, and the mistake of facts and legal scenarios as to the obstruction of bidding, and unfair sentencing. The judgment prior to the remand of the case, the lower court convicted only the above each of the above, and accepted only the allegation of unfair sentencing, and decided again.

Therefore, the defendant appealed to the court below on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (the "tax evasion of global income tax" and the "tax evasion of transfer income tax") and interference with bidding.

The Supreme Court rejected all the remaining grounds of appeal except the defendant's assertion that there was error in calculating the amount of capital gains tax evasion, but the above grounds of appeal on the amount of capital gains tax evasion are accepted, and reversed the points of the capital gains tax evasion, and the remaining convictions in relation to a single comprehensive crime or concurrent crimes under the former part of Article 37 of the Criminal Act are reversed together, and the verdict of innocence against non-indicted 5 who was prosecuted as a crime of taking property in breach of trust has become final and conclusive with the same contents as the case of taking property in breach of trust, so it is also necessary to

B. Since the part rejected by the court of final appeal on the grounds that the judgment was rendered and the final judgment became final and conclusive at the same time, the defendant can no longer contest against it, and the court that has been remanded can not make a decision contrary thereto (see Supreme Court Decision 2005Do1247, Oct. 28, 2005, etc.).

Therefore, although the subject of the trial after remanding in this case is all the charges of this case against the defendant, the Supreme Court cannot determine differently from the Supreme Court on the ground that the rejection is groundless. On the premise of this, the following reasons for appeal are examined in sequence.

2. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles as to the evasion of global income tax with respect to non-indicted 1 overseas corporation (the crime No. 2. A of the judgment of the original court)

In order to secure the profits of Nonindicted Co. 6, the Defendant inevitably did not entail active acts in the process of establishing Nonindicted Co. 1 in Hong Kong, and instead did not report under tax law, thereby resulting in tax evasion. Therefore, it cannot be said that there existed “Fraud and other unlawful acts.”

B. Fact-finding or misunderstanding of legal principles as to the evasion of capital gains tax with respect to the sale and purchase of borrowed stocks (the crime No. 2. B. of this case)

(1) The Defendant did not hold the shares of Nonindicted Co. 7 in 2004, a business year immediately preceding the year 2005, which occurred from the transfer of capital gains from the purchase and sale of shares of Nonindicted Co. 7, thereby not constituting “large shareholder” under the Income Tax Act and the Enforcement Decree of the Income Tax Act

(2) The mere fact that a stock transaction was conducted under the name of a borrower does not constitute “Fraud or other unlawful act.”

C. misunderstanding of facts or misunderstanding of legal principles as to the offering of a bribe to Co-defendant 2 of the first instance trial (the crime No. 2.C. of the original judgment)

Since the amount of KRW 2 billion and USD 2.5 million granted to the defendant to Co-defendant 2 of the first instance trial is the money that was granted regardless of the sale of the non-indicted 2 Co., Ltd. (Supreme Court Decision 2000,000,000 won) and

D. misunderstanding of facts or misunderstanding of legal principles as to the offering of a bribe to Nonindicted 4 (the part on the crime No. 2 D. 2 of the original judgment)

In order to encourage the Defendant’s KRW 5 million gift certificates 20 million granted to Nonindicted 4, the KRW 300 million was delivered in good faith at the request of Nonindicted 4 for the payment of the event expenses, not the money given to Nonindicted 4. Therefore, the duty relationship is not related.

E. misunderstanding of facts or misunderstanding of legal principles as to the receipt of evidence in breach of trust against Nonindicted 5 (the part on the charge of crime 2. D. (4) in the original judgment)

Since the Defendant merely asked Nonindicted 5 to write out no-founded suspicion articles, it cannot be said to be “illegal solicitation”.

F. misunderstanding of facts or misunderstanding of legal principles concerning interference with bidding (the crime No. 4. part of the judgment of the original court)

(1) The Defendant did not give any instruction to the practitioners regarding the bid for the sale of Nonindicted Co. 2, and only received reports on the outline of the progress.

(2) Inasmuch as Nonindicted Co. 2 was sold through a lawful procedure through an open bid, and there was no situation where there was no undue influence on the adequate price formation through fair competition, it cannot be said that there was an act detrimental to the fairness of bidding.

G. Unreasonable sentencing

The punishment of the court below against the defendant (the imprisonment of three years and six months and the fine of 30 billion won) is too unreasonable.

3. As to the evasion of global income tax on Nonindicted 1’s overseas corporation

A. Judgment on the grounds for appeal: Whether “Fraud or other unlawful act” is “Fraud or other unlawful act”

In regard to the assertion that “Fraud and other unlawful acts” are not “Fraud and other unlawful acts,” the Supreme Court has judged that the judgment prior to remand constituted “Fraud and other unlawful acts,” and rejected the grounds of appeal. Therefore, the Defendant cannot dispute this part of the grounds of appeal, and this court that was remanded cannot make a decision contrary thereto. Therefore, this part of the Defendant’s assertion is unacceptable.

B. Ex officio determination on the time of receipt and number of the tax evasion in this part

In the trial after remanding, the Defendant asserts that ① there is no intention to evade global income tax, ② most of the amounts actually distributed in 2007 should be deemed dividends deemed dividends in 2004, 2005, and 2006 pursuant to Article 17 of the Adjustment of International Taxes Act (hereinafter “the National Adjustment Act”). Accordingly, the lower court erred in its judgment even though the period of attribution of dividend income, the timing of the occurrence of a crime of tax evasion, and the number of crimes should be different from the facts charged (the above argument is not included in the grounds of appeal, and the first ground of appeal was asserted).

We examine whether the above argument can be determined ex officio after the remand.

The Supreme Court reversed the part of the judgment of remanding the transfer income tax evasion in the “Scope of 5. Destruction”, and reversed the part of the global income tax evasion with respect to Nonindicted corporation 1 abroad as well as the relation between the above global income tax evasion and the blanket crime or the former part of Article 37 of the Criminal Act. Therefore, the issue is whether the part of the global income tax evasion with respect to Nonindicted corporation 1 overseas is not a final and conclusive one.

However, in a concrete examination of the decision of the court of final appeal, the argument that “it does not constitute fraud or other improper act” in the part on “the evasion of global income tax on Nonindicted Corporation 1 overseas is rejected without any ground of final appeal, but the remaining part is merely to criticize the selection of evidence and the recognition of facts belonging to the exclusive jurisdiction of the court below which is the fact-finding, or on the premise of facts different from the facts acknowledged by the court below, and thus, it does not constitute a legitimate ground of final appeal.” In other words, the court below rejected the ground of final appeal on the ground that it did not err in the misapprehension of legal principles as alleged in the grounds of final appeal, i.e., the decision of the court prior to the remand is justified, and the ground of final appeal is based on facts different from the fact-finding prior to the remand, and thus is based on the premise that it does not constitute a legitimate ground

However, the above argument by the defendant is about the matter of ex officio trial in the appellate court, so it is possible to judge this part ex officio in the trial after remand. Therefore, this part is examined in order below.

C. Intentional misconduct

As the facts duly admitted by the court below, ① the defendant established a foreign corporation 1 in order to manipulate the transaction stage and transfer profits from the non-indicted 1 overseas corporation; ② the defendant made an investment in full in the capital stock of the non-indicted 1 in the non-indicted 8 corporation, the representative director of the non-indicted 9 (the non-indicted 51% of equity shares) and his non-indicted 10 (the non-indicted 49% of equity shares) on the shareholder’s ground that he made an investment in full in the capital stock of the non-indicted 8 corporation, the representative director of the non-indicted 9 (the non-indicted 8 corporation, the U.S. nationality), constitutes a deceptive act or other active act that makes it impossible or considerably difficult to impose and collect taxes, and its intention also is recognized. The crime of tax evasion is an intentional crime established when the person liable for tax payment knows that his act constitutes fraud or other unlawful act, and it does not require the purpose of tax evasion or tax evasion, and thus, even if the defendant did not have any purpose of tax evasion or tax evasion, it cannot be viewed otherwise (see this part of the defendant’s assertion.

(d) Time when dividend income reverts pursuant to the application of the National Control Act and time and number of offenses in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes due to the evasion of global income tax;

(1) Whether the provision on deemed dividend of national laws is applied or not

Comprehensively taking account of the evidence duly examined by the lower court and the first instance court, ① there was no corporate tax borne by Nonindicted Corporation 1 in Hong Kong; ② the Defendant owned 100% of the equity shares of Nonindicted Corporation 1; ③ Nonindicted Corporation 1 was engaged in wholesale business (retailing business) with an office in Hong Kong; the sales amount occurred from the brokerage business; ④ the sales of Nonindicted Corporation 1 was both overseas sales and related parties.

According to the above facts, ① A foreign corporation constitutes a foreign corporation whose head office is located in an area where the tax burden of Nonindicted corporation is 15% or less of the actually accrued income (Article 17(1)1 of the Act), ② The Defendant constitutes a person who holds not less than 20% of the total number of shares issued by Nonindicted Corporation 1 (Article 17(2)2 of the Act), ③ the case where Nonindicted Corporation 1 is running a business through a fixed facility, and the case where the total amount of the revenue generated from the wholesale business exceeds 50% of the total amount of the revenue (Article 18(1)1 subparag. 3 of the Act), Article 35(1)4 of the Enforcement Decree of the National Control Act, and (4) the case where the wholesale business is sold to an unrelated party in the same area while engaging in the wholesale business (Article 18(4)5 of the Act).

Therefore, pursuant to Articles 17(1) and 19(1)6 of the National Assistance Act, the amount attributable to the defendant out of the distributable retained earnings as of the end of each business year of Nonindicted Corporation 1 shall be deemed to have been distributed to the defendant, and it shall be included in the dividend income for the taxable year from the day after the end of the pertinent business year to which the 60th day belongs

(2) If the dividends are deemed to be paid under the laws of the State, the

The prosecutor asserts that even if deemed dividends in accordance with the laws of the State, if the earned surplus has been continuously carried over and remains as earned surplus, the actual dividends should be taxed, and that the provisions of the laws of the State are not applicable to the deemed dividends.

However, Article 3(1)7 of the National Assistance Act provides that “The national assistance law shall take precedence over other Acts which provide for national taxes and local taxes,” and Article 17(1) provides that “The amount to be reverted to the national out of the distributable retained earnings as of the end of each business year of a specific foreign corporation shall be deemed to have been paid to the national,” and Article 17(1) of the same Act provides that if the retained earnings of a specific foreign corporation are included in the national’s gross income, etc. under Article 20(1) of the same Act and the relevant corporation actually distributes the retained earnings, it shall not be deemed as falling under the dividend income under Article 17(1) of the Income Tax Act. In full view of the provisions of the national assistance law and the purport of Articles 31(1) and 36-5(1) of the Enforcement Decree of the National Assistance Act, even if the actual dividend is made after the requirements for deemed dividends under the National Assistance Act are met, the actual dividend income shall not be deemed to have been paid at the end of each business year after the relevant tax payment period.

(3) The amount actually distributed;

In this case, comprehensively taking account of the evidence duly examined by the court below and the court below, the non-indicted 1's overseas corporation distributed USD 84,802,00 to the defendant on May 13, 2003, USD 105,808,00 Hong Kong on March 1, 2004, and USD 33,257,676 on July 31, 2007 (Evidence of Audit Report (Evidence No. 193 pages), it is not reasonable to view that the date of resolution on the distribution of USD 33,257,676 to the defendant on May 1, 2006 to July 31, 2007 is not clear, but to view that it is reasonable to consider that the defendant's domestic currency dividend amount was reduced to KRW 33,257,676 on July 31, 207 as evidence of this case's long-term statement to the defendant on July 31, 2007.

(4)the calculation of the deemed dividend amount and the time of attribution;

However, according to the evidence duly examined by the court below and the court below after remand and the provisions of the former Enforcement Decree of the State Act and the State Act, etc., as seen above, 84,802,00 Hong Kong actually distributed on May 13, 2003, 84,784,670 Hong Kong was deemed to have been distributed on April 30, 2003, and only 17,330 Hong Kong was imposed on the remaining 33,257,676 Hong Kong actually distributed on July 31, 2007, and 2, 33,279,304 Hong Kong among 33,257,676 Hong Kong actually distributed on April 30, 2004, 16,127,783

Hong Kong USD 30, 55,741,91 on April 30, 2005 is deemed to have been distributed on April 30, 2006, USD 75,070,704 on April 30, 2006 and imposed on April 30, 2007, and only the remaining USD 3,037,974 may be imposed on the actual amount of dividends (Provided, That the time when the deemed amount of dividends accrue is June 29 of the corresponding year). Such deemed dividends, the actual amount of dividends after deducting the deemed amount of dividends, the actual amount of dividends after deducting the deemed amount of dividends, and the detailed calculation details of the tax amount on each amount of dividends are as shown in attached Table 1(1).

(5) Whether it is necessary to amend the Bill of Amendment

In this case, the prosecutor brought a public prosecution on July 31, 2007 by stating that the amount of actual dividends can be taxed, but as above, the taxation on deemed dividends under the National Assistance Act should take precedence over the taxation, and accordingly, the amount of tax evaded for each taxable year may vary. Thus, the scope of criminal facts that can be recognized as the amount of tax evaded by deemed dividends without any changes in the indictment may be a problem.

(A) Relevant legal principles

In a case where there is no concern that a substantial disadvantage may be inflicted on the defendant's exercise of his/her right to defense, it does not violate the principle of no accusation even if the court acknowledged facts differently within the same scope without going through the amendment of indictment (see, e.g., Supreme Court Decision 2006Do1667, Jun. 15, 2006). Whether the facts charged are identical or not shall be determined by taking into account both the defendant's act and social factual relations based on the legal function of the identity of facts (see, e.g., Supreme Court Decision 2009Do4785, Oct. 14, 2010).

(B) Whether the facts charged are identical

In this case, the facts charged that the amount deemed a dividend pursuant to the State Assistance Act continues to be carried over and remains as earned surplus, and the actual dividend amount remains as earned surplus, and that most of the actual dividend amount is deemed to have been deemed to have been distributed before the actual dividend pursuant to the State Assistance Act, and the comprehensive income tax on the amount deemed to have been evaded as to the amount of dividend and the actual dividend amount is deemed to have been actually distributed prior to the actual dividend pursuant to the State Assistance Act. As to whether the facts charged are within the scope of identity of the facts charged, ① the defendant, establishing a foreign corporation 1, operates the transaction phase and receives dividends from the following shareholders, thereby evading the comprehensive income tax; ② the method of evasion and legal benefits are the same; ② the income source of dividend income is the same as the earned surplus of the foreign corporation 1; ③ the tax item is the same as the global income tax under the Income Tax Act; Provided, That the difference between the dividend income deemed to have been deemed to have been distributed each business year in accordance with the State Assistance Act before the actual dividend income is actually distributed. Therefore, the identity of

(C) Whether it is necessary to amend the Bill

1) However, even if the identity of the facts charged is recognized as above, the issue of whether it is necessary to amend the indictment is another issue. As such, in this regard, the crime of tax evasion is established based on the recovery of the elements of the violation (see, e.g., Supreme Court Decision 9Do382, Apr. 20, 200). According to Article 9-3 of the former Punishment of Tax Evaders Act (amended by Act No. 9919, Jan. 1, 2010) and Articles 70(1) and 76(1) of the Income Tax Act (former Income Tax Act is the same as the current Income Tax Act, and thus does not distinguish the amount of global income tax from the tax period (from January 1, 19 to December 31, 200), the sum of the amounts of the crimes of tax evasion by 10 years after the lapse of May 31, 200 and the amount of tax evasion by 20 years including the annual amount of tax evasion by 130 years and more than 1.1.

2) In light of the above legal principles and regulations, even if the tax items are the same as global income tax, if the tax items vary in the taxable period, it may cause a substantial disadvantage to the defendant's exercise of the defendant's right to defense. Therefore, it is necessary to amend the bill of amendment since it is necessary to do so. Therefore, in this case, in order to recognize the amendment of the bill of amendment by changing the comprehensive income tax on USD 333,257,67, and Hong Kong, which was actually distributed on July 31, 2007, part of the facts charged, which was deemed as dividends on April 30, 2004, 33,279,304, USD 16,127,783, Hong Kong, which was deemed as dividends on April 30, 2005, and USD 5,741,91, which was deemed as dividends on April 30, 2006, it is necessary to recognize the amendment of the bill of amendment.

3) On the contrary, if the taxable period is the same, not only the tax item is the same as the global income tax, but also the income subject to taxation is the same as the earned income of Nonindicted Corporation 1. However, there is only difference between the actual dividend income and the actual dividend income within the same taxable period, and the defendant claims that the actual dividend income was deemed to have been previously distributed, and it is not likely that the exercise of the defendant's right to defense may not cause any substantial disadvantage. Thus, it can be recognized by dividing the tax evasion of the global income tax on the actual dividend into the tax evasion of the global income tax on the actual dividend and the dividend without any changes in

Therefore, in conclusion, it is recognized that the portion of the actual distribution of USD 84,802,00, which was actually distributed on May 13, 2003, was changed to that of global income tax evasion for USD 17,330,00, except for the amount of the tax evasion and deemed dividend for USD 84,784,670, which was deemed distributed on April 30, 2003, and that the portion of the actual distribution of USD 33,257,676, which was actually distributed on July 31, 2007, which was deemed to have been evaded as income tax evasion for USD 75,070,704 as of April 30, 207, was changed to that of USD 75,070,204, 2005, 206, 2006, and the remainder of the amount deemed to have been distributed on July 37, 2003, to be possible to be reduced to USD 397,374.

(6) the facts charged, the time of receipt, and the relationship of receipt

(2) The above dividends of USD 17,330 on April 30, 203 and USD 20, USD 375 on the 205 Hong Kong (not including USD 84,784,670 on the 36th 7th 7th 7th 7th 7th 7th 205 on the 36th 2nd 7th 7th 205 on the 36th 2nd 4th 7th 200 on the 36th 2nd 7th 205 on the 3rd 2nd 4th 7th 7th 204 on the 3rd 7th 3rd 205 on the 196th 3rd 2nd 4th 204 on the 36th 3rd 205 on the 196th 2nd 36th 204) on the 3rd 205th 205 on the 36th 36th 207th 207th 205.

E. Sub-decision

Nevertheless, the judgment of the court below which found the defendant guilty of this part of the facts charged is erroneous by misunderstanding the facts or by misunderstanding the legal principles as to deemed dividend under the State Assistance Act, and this part of the judgment below is no longer maintained

4. As to the evasion of capital gains tax on the trading of borrowed name stocks

(a) Ex officio destruction;

Since the prosecutor applied for changes in the bill of amendment to the capital gains tax on the part of the evaded tax amount after remand and this court permitted it, the part of the judgment of the court below that the capital gains tax evasion can no longer be maintained.

However, despite the existence of a ground for ex officio reversal, the grounds for appeal by the defendant may still be subject to the judgment by the court. However, as to the assertion that the defendant does not fall under the "large shareholder" under the Income Tax Act and that it does not constitute "Fraud or other unlawful act", the Supreme Court held that the judgment prior to the remand constituted "large shareholder" under the Income Tax Act and rejected this part of the grounds for appeal. Therefore, the defendant cannot contest this part of the above legal principles, and the court that received the remand cannot make a decision contrary thereto. Accordingly, this part of the defendant's argument cannot be accepted.

5. Offering of bribe to Co-Defendant 2 and Nonindicted 4 in the first instance trial

A. Whether it is subject to determination

If the court of final appeal accepted the defendant's grounds of appeal and reversed and remanded all the judgment of the party prior to the remand, and the defendant did not make a separate judgment that the appeal on the part which was not considered as the grounds of appeal is groundless, the conviction on the part is not the substantial final and conclusive. Thus, it cannot be deemed that the judgment contrary to the judgment of remand is not inconsistent with the judgment of the court of final appeal on the ground that the appellate court rendered a new trial and determination on the part after remand and rendered a not guilty verdict (see Supreme Court Decision 2007Do7042, Aug. 20, 2009).

In light of the above legal principles, the Defendant did not file an appeal against this part of this case and the Supreme Court did not decide that the appeal against this part was groundless in the judgment of remanding. Therefore, the judgment of conviction before remanding this part is not the substantial final and conclusive, and the judgment of conviction before remanding this part can be reviewed and determined again on this part.

B. Offering of bribe to Co-Defendant 2 of the first instance trial

In light of the facts duly admitted by the court below, it can be sufficiently recognized that the defendant's 2 billion won granted to Co-defendant 2 of the first instance court among February 2006 and the 2.5 million US dollars granted to Defendant on June 2007 to Defendant 2 of the first instance court was a bribe granted in return for the sale of Nonindicted Co-Defendant 2 to Nonindicted Co-Defendant 6 corporation by △△ Federation. Therefore, the judgment of the court below is just, and the defendant's allegation in this part is not acceptable.

C. Offering of bribe to Nonindicted 4

In light of the facts duly admitted by the court below, since it can be sufficiently recognized that the defendant's KRW 5 million gift certificates 20 million and KRW 300 million granted to non-indicted 4 was a bribe given in relation to his duties as a general secretary for the general secretary of non-indicted 4, the judgment of the court below is just, and this part of the defendant's assertion is not acceptable.

6. Property in breach of trust;

A. Summary of the facts charged

From March 31, 2005 to January 2008, Nonindicted 5 had the right of editing articles on the “○○○○○○”, a monthly publication published by Nonindicted Company 11, while serving as the representative director and editor of Nonindicted Company 11 from March 31, 2005 to January 2008.

Therefore, Nonindicted 5 has the duty to exercise the right of editing fairly on behalf of Nonindicted Co. 11 and to not intentionally favorable or unfavorable to a specific person without reporting articles that are fairly and objectively covered.

○○○○○○○ in December 2006, the Defendant and Nonindicted Company 6 published suspicion news articles mainly focused on the interest of Nonindicted Company 6, to the effect that “the Defendant had been given preferential treatment through the participating government personnel at the time of acquisition of Nonindicted Company 2, and obtained enormous profits from trading the stocks of Nonindicted Company 2 by using undisclosed information,” and then published suspicion news articles to the effect that the Defendant received preferential treatment from the participating government personnel at the time of acquisition of the land for Kimhae-high Bus Terminal, Kim Jong-high Bus, 2007.

The Defendant asked Nonindicted 12, who was in friendly with Nonindicted 5, to the effect that he would not publish suspicions against himself and Nonindicted 6 corporation, as much as possible, to Nonindicted 5.

Nonindicted 12 asked Nonindicted 5 to “the Defendant’s harassment”, and upon receipt of Nonindicted 5’s request, Nonindicted 5 had Nonindicted 13 interview to the effect that Nonindicted 13 did not constitute a suspicion of preferential treatment in connection with the acquisition of Nonindicted Co. 2, and reported the content thereof to ○○○○○○ 2007, and the Defendant asked Nonindicted 12 to have the interview with Nonindicted 5.

As the defendant was known of the post-former president before the time, matters related to the defendant and the non-indicted 6 corporation were bound to be subject to intensive coverage by the media. In fact, various media, such as April 2007 and May 200, the defendant-related suspicion articles related to the defendant were published in various media, and the defendant tried to continue coverage in relation thereto.

Under the above circumstances, the Defendant agreed with Nonindicted 5 through Nonindicted 12 to pay money to Nonindicted 5 in order to prevent Nonindicted 11 Company from carrying himself and Nonindicted 6 Company-related suspicion articles.

On February 9, 2007, the Defendant issued USD 20,000 (the amount equivalent to KRW 18,770,00) to the Defendant, upon the Defendant’s request to the effect that Nonindicted 5 should not be posted any suspicion article related to the Defendant and Nonindicted 6 Company in the △△△ Hospital located in Jung-gu, Seoul.

Accordingly, the Defendant made an illegal solicitation with respect to his duties to Nonindicted 5 and granted USD 20,00 to Nonindicted 11 corporation.

B. Ex officio determination

Comprehensively taking account of the evidence duly examined by the court below and the court below prior to remand, the fact that the defendant met Nonindicted 5 in △△△ among the hotel restaurants located in Jung-gu, Seoul on February 9, 2007 is recognized.

Furthermore, it is considered whether 20,00 U.S. dollars have been granted in the same place.

(1) Evidence relationship

There are evidence regarding the delivery of USD 20,00,00 as evidence, Nonindicted 12’s prosecutor’s statement that Co-Defendant 4 made from the Defendant, Nonindicted 15’s prosecutor’s statement that Nonindicted 30,000 U.S. dollars or USD 10,00 was maintained in the Defendant’s president’s depository, and Nonindicted 5’s prosecutor’s statement that he made meals like the Defendant. However, it is consistent with the principle that Nonindicted 5 did not receive any meal even if he recognized

(2)Confessions and supporting evidence

Reinforcement evidence against confession is sufficient if it is sufficient to recognize that the confession of a defendant is true, not a processed one, even though all or some of the facts constituting the crime are not recognized (see Supreme Court Decision 2010Do2556, Apr. 29, 2010, etc.). However, the contents of the statement made by a person other than the defendant, who was the defendant, do not include the confession of the defendant under Article 310 of the Criminal Procedure Act, but do not constitute corroborative evidence of confession of the defendant (see Supreme Court Decision 2007Do10937, Feb. 14, 2008, etc.).

According to these legal principles, co-defendant 4's statement in the court of first instance was that the defendant delivered USD 20,00 to 20,000, and thus, it cannot be a supporting evidence, but the statement in the non-indicted 15 and 12 can be a supporting evidence of the confession of the defendant.

(3) The credibility of the confession

However, even if there is evidence supporting the confession of the defendant, if the confession of the defendant is not reliable, other supporting evidence alone is insufficient to recognize this part of the facts charged.

In determining the credibility of a confession, it shall be determined whether there is a situation in which the motive or process of the confession of the accused exists, taking into account the following: (a) whether the content of the confession itself has objectively rationality, what is the motive or reason for the confession, what is the background leading to the confession, and whether there is any conflict or inconsistency with the circumstantial evidence other than the confession (see, e.g., Supreme Court Decision 2009Do1151, Jul. 22, 2010).

We examine the credibility of the confession of the defendant in accordance with the above legal principles.

In a case where: (a) the following matters can be acknowledged by the evidence duly examined by the court below and the court below after remand; (b) the circumstance that the defendant made a statement to Nonindicted 5 with respect to the provision of money and valuables; (c) the process of changing the statement; (d) the details of the statement made by a third party, such as Nonindicted 16; and (e) the relationship between the contents of the article and the circumstances at the time of the statement made by ○○○○○○○, a representative director, and (iii) the provision of money and valuables generally were involved; and (d) the circumstances at the time of the provision of money and valuables at the time of the statement; (e) the statement made by the party asserting that the provision of money and valuables was made is based on or closely related to the above facts; and (e) the statement made by the party concerned must be explained of the reasons acceptable in light of the contents and circumstances at the time of the provision of money and valuables; and (e) whether the statement made by the defendant was accurate or reliable; and (e) the evidence alone is insufficient to acknowledge the remaining part of the facts charged.

C. Sub-decision

Therefore, the judgment of the court below that found the Defendant guilty of this part of the facts charged is erroneous. Therefore, this part of the judgment below is no longer maintained, and the judgment of the court below is reversed ex officio without examining the remaining grounds for mistake of facts or misapprehension of legal principles of the Defendant.

7. Interference with bidding;

With respect to the same argument as the grounds for appeal by the defendant, the Supreme Court has affirmed the judgment of the court below which found the defendant guilty of this part of the facts charged before the remand, and rejected the grounds for appeal. Thus, the defendant cannot contest this part, and the court to which the case was remanded cannot make a decision contrary thereto. Therefore, this part of the defendant's argument cannot be accepted.

8. Conclusion

Therefore, among the part of the judgment below against the defendant, the part concerning the evasion of global income tax, the part concerning the evasion of capital gains tax, and the part concerning the giving of property in breach of trust as seen earlier, and the remaining guilty part are imposed on the concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, they should be reversed together. As such, without examining the defendant's assertion of unfair sentencing, the part concerning the defendant among the judgment below is reversed in whole and the decision is made again after the pleading as follows.

The gist of the defendant's criminal facts and the evidence is as follows: (a) the defendant's attempt to evade global income tax on the non-indicted 1's overseas corporation's global income tax [208 Gohap 1438] and "2.b. '208 Gohap 1438'; (d) the defendant's amendment as stated in the judgment of the court below; and (e) deleted "the evidence of breach of trust against non-indicted 5" from the summary of the evidence as stated in the judgment of the court of the court of first instance as follows: (a) the non-indicted 4, 18, 19, 13, 12, 000 (209 Gohap Ga. 4); and (b) the defendant deleted "the evidence of breach of trust against the non-indicted 5" from the summary of the evidence as stated in the judgment of the court of first instance as follows: (b) the non-indicted 1's offering of bribe against the non-indicted 16, 489, 17, and 5 2007 Ga. 207.

【Revised Crime】

A. The evasion of global income tax on Nonindicted Party 1’s overseas corporation (2008 Gohap1438)

Nonindicted Co. 6 is “S.-S.-S.-S.-S.-S.-S.-S.-S.-S.-S.-S.-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S

The Defendant: (a) had a significant increase in the proceeds from the overseas expansion and technology development of Nonindicted Co. 6, etc.; (b) had a new legal entity overseas to transfer its proceeds to the legal entity; and (c) had established the local legal entity called “Nonindicted Co. 1” in Hong Kong, the so-called tax haven; and (d) had Nonindicted Co. 22 supplied raw materials directly to Nonindicted Co. 20 and Nonindicted Co. 21 in Hong Kong, the so-called tax haven; (b) had Nonindicted Co. 1 purchased raw materials from Nonindicted Co. 1 and again sold them to Nonindicted Co. 20 and Nonindicted Co. 21; and (c) had Nonindicted Co. 1 acquire a large amount of profits by manipulating the transaction stage as if Nonindicted Co. 22 purchased raw materials from Nonindicted Co. 1 and sold them to Nonindicted Co. 20 and Nonindicted Co. 21; and (d) the Defendant received dividends as a shareholder; and (d) was planned to make it impossible or considerably difficult to impose and collect taxes of the tax authority,

Around October 2002, the Defendant invested the total amount of the establishment capital ($ 510,00), but established the Hong Kong local subsidiary, a foreign corporation, on the ground that Nonindicted 9 (51% of equity interest), the representative director of Nonindicted 8, the U.S., and Nonindicted 10 (share 49% of equity interest) as a shareholder, and Nonindicted 10 (share 49% of equity interest) as a shareholder, and even from October 202 to October 2005, Nonindicted 22 had supplied raw and subsidiary materials to Nonindicted 21 Limited Corporation, Nonindicted 20, and Nonindicted 20 Co., Ltd. immediately supplied them to Nonindicted Co. 1, if the raw and subsidiary materials on the document were supplied from Nonindicted Co. 22 to Nonindicted Co. 1 as an overseas corporation from Nonindicted Co. 1 to Nonindicted Co. 21, Nonindicted Co. 21, and Nonindicted Co. 20, then transferred approximately KRW 500,000 to Nonindicted Co. 1’s trade intermediary.

The Defendant, as if Nonindicted 1 were to distribute the dividends to Nonindicted 9 and Nonindicted 10, made it impossible or considerably difficult to impose and collect taxes by the tax authorities by pretending to receive the dividends that are the subject of global income tax return, as if he were to distribute the dividends to said Nonindicted 9 and Nonindicted 10, or made it difficult to do so. On April 30, 2003, USD 84,784,670 ($ 12,972,054,510) was deemed to have been distributed (Provided, That this amount shall not be included in USD 17,330 Hong Kong around May 13, 2003 (2,657,57,555 won) and approximately KRW 37,07,574,205,67,47,47,205,67, which was actually distributed to said Nonindicted 9 and Nonindicted 10,57,207,57,000 won (this amount shall be excluded).

The above dividend income was not reported by May 31, 2008, since it included USD 33,279,304, USD 166,127,783, USD 55,741, Hong Kong, deemed distributed on April 30, 2005, USD 55,741, USD 91, USD 75,070,704 deemed distributed on April 30, 2006, and USD 75,070,704 as deemed distributed on April 30, 207, and the above dividend income was not reported by May 31, 2008, each of the above dividend income was not paid by not later than 4,670,896, KRW 342, and KRW 5,757,575,605, KRW 203 (based on taxation period), and each of the above global income tax was evaded by not later than 203 (excluding this amount).

(b) Evasion of capital gains tax through the trading of borrowed-name stocks (208 high-priced 1438);

(1) Regarding the sale of shares of Nonindicted Co. 7

On June 2005, the Defendant: (a) obtained information from △△△ Company to take over Nonindicted Co. 7; and (b) decided to purchase stocks of Nonindicted Co. 7 in bulk in order to obtain large profits from large market prices; (c) however, the Defendant and his specially related persons had concerns over the imposition of large amount of capital gains tax on market price gains if they own at least three percent of the total shares issued by the said Company or ten billion won in total; and (d) held shares of less than three percent of the completion date and less than ten billion won in total market price by pretending that the Defendant and his specially related persons possess shares of the said Company under the name of the tea, thereby evading capital gains

From June 22, 2005 to July 1, 2005, the Defendant acquired profits from the market price of KRW 7,580,97,785 (excluding commission; hereinafter the same shall apply) by purchasing KRW 580,030 shares issued by Nonindicted Incorporated Company 7 at KRW 2,913,195,567, and selling at KRW 10,494, 193,352 Shares 14) to KRW 15,00 (excluding commission; hereinafter the same shall apply) by selling at KRW 10,580,97,785 shares issued by Nonindicted Incorporated Company 7 at KRW 5,00,00,030.

From July 5, 2005 to July 6, 17 of the same year, the Defendant acquired a profit from KRW 1,898,826,310 by purchasing KRW 1850 shares issued by Nonindicted Incorporated Company 7 at KRW 188,682,00 and selling them to KRW 2,856,86,992 note 20) from July 5, 2005 to KRW 18,898,826,310 shares issued by Nonindicted Incorporated Company 21).

On August 4, 2005, the Defendant acquired KRW 185,000 shares of Nonindicted Co. 7 Company 185,181,820 shares at KRW 23) and sold the entire amount of shares to Nonindicted Co. 7 Company 2,375,377,904 shares at KRW 24) with the borrowed name consignment account opened by the Defendant in the name of Nonindicted Co. 26 on August 4, 2005.

Therefore, the Defendant, in the name of the Defendant and Nonindicted 26, and Nonindicted 25, obtained profits from the market price equivalent to KRW 11,85,165,161,58,068, all by purchasing KRW 950,00 in total amount of KRW 4,796,418,069) and selling KRW 16,651,580,068 in total amount of KRW 26).

On the other hand, between June 23, 2005 and July 1, 2005, the Defendant’s wife Nonindicted 27 purchased 81,000 shares issued by Nonindicted Company 7 with shares consignment account in the name of Nonindicted 27 opened at Nonindicted 24 Busan branch of the securities market from June 23, 2005 to KRW 4.99 million.

Ultimately, on June 28, 2005, Nonindicted Co. 27, who was specially related to the Defendant and the Defendant, owned 893,198 shares of the above Nonindicted Co. 7 Co. 7, thereby holding at least three percent of the total number of shares issued (24,485,675 shares).

Therefore, the Defendant reported and paid the capital gains tax of KRW 3,55,79,58,59 as to the above market price gains 11,855,161,99 up to May 31, 2006. However, as seen above, the Defendant made it impossible or considerably difficult to impose and collect taxes by a tax authority in a disguised manner as if it were not a stock transaction subject to reporting of capital gains tax by selling and selling stocks through an entrusted account opened in the name of another person in violation of the law, and imposed the above period without any report.

Ultimately, the Defendant evaded the transfer income tax of KRW 3,555,799 by fraud or other unlawful act.

(2) Regarding the sale of shares of Nonindicted Co. 2

The Defendant planned to acquire the management right by acquiring the shares of Nonindicted Co. 2, 2005, a subsidiary of △△△△△ in order to avoid capital gains tax by selling the shares under the name of the borrower in order to pretend that it is not the shares owned as a major shareholder as prescribed by the law, even if he purchased the shares of the said company in advance after acquiring the management right and sells them after selling them.

The Defendant, along with Nonindicted Co. 6 and Nonindicted Co. 28 Co., Ltd. on June 30, 2006, purchased 46 percent of the shares issued by said Nonindicted Co. 2 Co., Ltd. in KRW 145.5 billion and became a major shareholder of said company.

From September 12, 2006 to September 29, 2007, the Defendant purchased KRW 8,726,012,990 (Non-Indicted 25 Account 4,908,25,480) from Non-Indicted 26 account + Non-Indicted 26 account 3,817,757,510 won (Non-Indicted 25 Account 4,980 note 32) to the borrowed stocks consignment account opened by the Defendant in the name of Non-Indicted 26 and Non-Indicted 25).

From May 16, 2007 to November 35 of the same year, the Defendant sold shares 481,540 shares of Nonindicted Co. 2 Co. 2 to 10,627,693,922, thereby obtaining profit from the market price of KRW 1,901,680,932.

Therefore, even though the Defendant should report and pay the capital gains tax of KRW 189,918,093 for the above market price gains until May 31, 2008, the Defendant, in violation of the law, sold stocks through a consignment account opened in another person’s name, and thereby disguised tax imposition and collection by a tax authority as if it were not a stock transaction subject to reporting of capital gains tax, was impossible or considerably difficult, and even imposed the above period without any report.

Ultimately, the Defendant evaded the transfer income tax of KRW 189,918,093 by fraud or other unlawful act.

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

Article 8 (1) 1 and (2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 9919, Jan. 1, 2010); Article 8 (1) 2 of the former Punishment of Tax Evaders Act (amended by Act No. 8138, Dec. 30, 2006; Article 9 (1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 9919, Apr. 15, 2010); Article 9 (1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 9346, Jan. 30, 2009); Articles 8 (1) 1 and 8 (2) of the former Punishment of Tax Evaders Act (amended by Act No. 9919, Apr. 15, 2010); Article 42 of the former Criminal Act (amended by Act No. 10259); Articles 13 and 1313 of the Criminal Act)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2 and 3, and Article 50 of the Criminal Act (the term of punishment and imprisonment with the largest term of punishment shall be imposed on the limited term of punishment prescribed for the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) due to the tax evasion in 2005, and the fine imposed on each of the crimes of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) shall be imposed on the concurrent crimes pursuant to the main sentence of Article 4 (1) of the former Punishment of Tax Evaders Act (amended by Act No. 9919, Jan. 1, 2010). Thus, Article 38 (1) 2 of the Criminal Act concerning concurrent crimes shall be excluded from the application of Article 38 (1) 2 of the same Act concerning each of the crimes (Supreme Court Decision 9

1. Discretionary mitigation;

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

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Determination of fines: The amount of fines shall be as shown in the attached Table (2);

① It is recognized that the global income tax evasion with respect to Nonindicted corporation 1 abroad is due to the following: (a) there is a tool that can be deemed to have occurred in the process of distributing net income in order to avoid the lower limit of supply price; (b) the amount of tax imposed equivalent to 80 billion won revealed in the process of special tax investigation; (c) the acquisition of Nonindicted Co. 2 by Nonindicted Co. 3 did not cause damage to △△ Federation; (iv) the attitude that she divideds his fault; (v) the age of 65 years old and the health status is not good; (vi) Nonindicted Co. 6, Nonindicted Co. 20, Nonindicted Co. 21, and Nonindicted Co. 21, etc.: (v) the business performance contributing to the national economy through the management of Nonindicted Co. 6, Nonindicted Co. 20, Nonindicted Co. 20, and Nonindicted Co. 21, etc.; and (v) the head of private diplomatic activities

On the other hand, even if ① the primary purpose of tax evasion related to Nonindicted Corporation 1 was to avoid the age limit, the total amount of tax evasion found guilty in this case reaches 17.4 billion won, ② the first instance court’s first instance court’s Co-Defendant 2 granted a large amount of bribe of 2.0 billion won and US$ 2.5 million with respect to the acquisition of Nonindicted Company 6 Co-Defendant 2, thereby achieving the purpose of the offering of a bribe by winning Nonindicted Co-Defendant 2’s acquisition by unlawful means, as well as obtaining profits more than the amount of the granted bribe, ③ such acts are actively used unlawful means to achieve the purpose of the business in light of its type and scale, and there is no way to escape the criticism that the law is somewhat poor, and ④ public officials who did not receive unjust money through Defendant cannot be deemed to have undermined the society of the public service, and to have neglected the corruption and removal of society, and so long as they do not have any responsibility for such unlawful money and goods.

The punishment shall be determined as per Disposition, taking into account all the above circumstances, the character and conduct of the defendant, the motive of the crime, the circumstances after the crime, and all the conditions of sentencing indicated in the records.

1. The evasion of global income tax on Nonindicted 1’s overseas corporation

A. Summary of the facts charged

The Defendant did not withhold taxes from the above facts of crime and evidence : 1.0 to the non-indicted 1's domestic income tax [208 Gohap 1438] ; 2.0 to the non-indicted 2's global income tax; 84,802,00 Hong Kong local account, etc. managed by the Defendant 1 to the extent that it was not 10,90,000 US dollars; 13,036,40,000 US dollars 13,808,008,000, 2063,000 Hong Kong 2,863,000,000,000 Hong Kong 2,636,79,000,000,000 US$ 13,60,000,000,16,000,0000,00636,036,0636,79,364,79,007.

B. Determination

Of the facts charged in this part of the facts charged, the part in excess of the amount recognized in the global income tax evasion [208 Gohap1438] with respect to Nonindicted Corporation 1 overseas constitutes a case where there is no proof of a crime for the reasons as seen earlier, and thus, the Defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, the Defendant shall not be acquitted pursuant to the latter part of the Criminal Procedure Act. However, as long as the Defendant was found guilty of each crime due to “the evasion of global income tax (2008 Gohap1438) with respect to Nonindicted Corporation 1 overseas,” the Defendant shall not be acquitted separately in the disposition.

2. Property in breach of trust;

The summary of the evidence in breach of trust among the facts charged in the instant case is the same as the above 6.A. As such, this part of the facts charged falls under the case where there is no proof of crime for the same reason as the above 6.B., and thus, is acquitted pursuant to the latter part of Article 325 of the

[Attachment]

Judges Cho Jae-chul(Presiding Judge)

1) Article 17(1) of the former Adjustment of International Taxes Act (amended by Act No. 9914, Jan. 1, 2010) shall apply until 2009. However, the content of the instant case is the same as that of the current law, and if it is not necessary to distinguish it, it is the same regardless of whether it is amended.

2) For 2005, Article 17(2) of the former Adjustment of International Taxes Act (amended by Act No. 7956 of May 24, 2006) and Article 17(2) of the former Adjustment of International Taxes Act (amended by Act No. 9914 of January 1, 2010) shall apply from 2006 to 2009.

3) Article 18(1)1 of the former Adjustment of International Taxes Act (amended by Act No. 7956 of May 24, 2006) and Article 18(1)1 of the former Adjustment of International Taxes Act (amended by Act No. 9914 of January 1, 2010) shall apply until 2005.

4) Article 35(1) of the former Enforcement Decree of the Adjustment of International Taxes Act (amended by Presidential Decree No. 19650, Aug. 24, 2006) and Article 35(1) of the former Enforcement Decree of the Adjustment of International Taxes Act (amended by Presidential Decree No. 22040, Feb. 18, 2010) shall apply until 2005.

5) From 2006 to 2008, Article 18(4) of the former Adjustment of International Taxes Act (amended by Act No. 9266 of Dec. 26, 2008) (amended by Act No. 7956 of May 24, 2006) applies.

6) For 2005, Article 19(1) of the former Adjustment of International Taxes Act (amended by Act No. 7956 of May 24, 2006) and Article 19(1) of the former Adjustment of International Taxes Act (amended by Act No. 9914 of January 1, 2010) shall apply from 2006 to 2009.

Note 7) Article 3(1) of the former Adjustment of International Taxes Act (amended by Act No. 9914, Jan. 1, 2010) shall apply until 2009.

8) For 2005, Article 20(1) of the former Adjustment of International Taxes Act (amended by Act No. 7956 of May 24, 2006) and Article 20(1) of the former Adjustment of International Taxes Act (amended by Act No. 9914 of January 1, 2010) shall apply from 206 to 2009.

Note 9) The facts charged are KRW 16,000,400,000, but this seems to be a result of a mistake in applying exchange rates.

10) The facts charged are 4,693,104,00 won. Even if it is divided into USD 84,802,00 actually distributed in 203, USD 84,784,670, and USD 17,330, excluding these amounts, the total amount of dividends is the same, but the exchange rate applied at the time of conversion into Korean currency is different from the actual dividend amount, and the tax amount converted into Korean currency is different from the facts charged.

Note 11) The facts charged consisting of KRW 5,760,144,00, but this seems to be a result of a mistake in applying the exchange rate as in Section 9 of the above note.

Note 12) The revised indictment (as of June 3, 201, hereinafter the same shall apply) is 6.23.0, but is a clerical error.

Note 13) The revised indictments are KRW 2.97,795,000,000,000,000.

Note 14) The revised indictment is KRW 10.49,4190,000,000,000,000,000,000,000.

Note 15) The revised indictment is 7.5 billion won, but is a clerical error.

Note 16) The revised indictment is 6.29. However, it is a clerical error.

Note 17) The revised indictment is 7.21.21, but is a clerical error.

Note 18) The revised indictment is Nonindicted 25, but is a clerical error (hereinafter the same shall apply).

Note 19) The revised indictments are KRW 89,3280,000,000,000,000,000.

Note 20) The revised indictment is KRW 2.856 billion, which is the amount less than KRW 00,000,000.

Note 21) The revised indictments are KRW 1.966,358 million, but are written in writing.

Note 22) The revised indictments are Nonindicted 23 Securities Kimhae and Nonindicted 24 Securities Busan Branch but are clerical errors.

Note 23) The revised indictment is KRW 92,5180,000,000,000,000,000,000.

Note 24) The revised indictments are KRW 2.377534,000,000,000,000,000.

Note 25) The revised indictment is KRW 4.799,6410,000,000,000,000,000.

Note 26) The revised indictment is 16.65 billion won, which is a clerical error.

Note 27) The revised indictment is 11.855 billion won, which is the amount less than 00 billion won.

Note 28) The revised indictment is 4.21.21, but is a clerical error.

Note 29) The revised indictment is set out on the 27th day of the same month, but is written in writing.

Note 30) In the revised indictment, Nonindicted 29 Busan Branch of Securities was omitted.

Note 31) The revised indictment consists of 741,330 shares, but is a clerical error.

Note 32) The revised indictment is KRW 4.9825 billion, which is the amount less than KRW 0,000.

Note 33) The revised indictment is KRW 3.88 billion, which is the amount less than KRW 17.7 billion.

Note 34) The revised bill of indictment is 8.27, but is a clerical error.

Note 35) The revised indictment is 11.5. However, it is a clerical error.

Note 36) The revised indictment is 497,620 note, but is a clerical error.