Whether Article 3 of the Punishment of Tax Evaders Act is applied to the aggravated punishment of a tax offense under Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes.

The provisions of the proviso of Article 3 of the Punishment of Tax Evaders Act that "if the offender commits the crime, the punishment may be reduced or exempted considering the circumstances" should be excluded in light of the purpose of the special law enacted by the Act on the Aggravated Punishment, etc. of Specific Crimes.

Article 3 of the Punishment of Tax Evaders Act and Article 8 of the Aggravated Punishment Act

Supreme Court Decision 73Do1148 delivered on August 21, 1973 (Dakhd 10519; Supreme Court Decision 21B-55 Decided the summary of the decision and Article 8 (1) 1406 of the Act on the Aggravated Punishment, etc. of Specific Crimes)

Defendant 1 and one other

Defendants and Prosecutor (Defendant 1)

Yeongdeungpo-gu Seoul District Court Decision 74 High Court Decision 290

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for two years and six months, and by a fine of 16,00,000 won for Defendant 2.

With respect to Defendant 1, sixty days of detention days prior to the sentence of the original judgment shall be included in the above sentence.

However, with respect to Defendant 1, the execution of a sentence of consolation shall be suspended for five years from the date this judgment becomes final and conclusive.

The sentence of a fine against Defendant 1 shall be suspended.

(1) First, we examine the prosecutor's second ground of appeal against Defendant 1 (the second ground of appeal against the prosecutor's defendant 1).

The summary of the grounds for appeal is that the court below erred in applying the Punishment of Tax Evaders Act, which was excluded by the Act on the Aggravated Punishment, etc. of Specific Crimes, to the above defendant while imposing a fine on him under the proviso of Article 3 of the Punishment of Tax Evaders Act.

Therefore, according to Article 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, the above Act was enacted for the purpose of punishing the specific crimes stipulated in the Punishment, etc. of Tax Evaders Act, and Article 8 of the same Act provides that a person who commits a crime stipulated in Article 9 (1) of the Punishment, etc. of Tax Evaders Act shall be punished aggravatingly as well as a fine shall be imposed concurrently (Article 9 (2) of the Punishment, etc. of Tax Evaders Act and Article 9 (1) of the Punishment, etc. of Tax Evaders Act shall be imposed concurrently (Article 2 of the above Act and Article 9 (2) of the Act on the Aggravated Punishment, etc. of Tax Evaders)

As above, considering the fact that the Act on the Aggravated Punishment, etc. of Specific Crimes is a special law on the Aggravated Punishment, etc. of Tax Evaders Act and the punishment is aggravated as a special law on the necessary concurrent punishment of fines, the proviso of Article 3 of the Punishment of Tax Evaders Act provides that "However, with respect to an offender, the punishment may be reduced or exempted according to the circumstances," shall be excluded in cases where the punishment is imposed by the

Therefore, the judgment of the court below which exempted the above defendant from a fine under the proviso of Article 3 of the Punishment of Tax Evaders Act by applying the Act on the Aggravated Punishment, etc. of Specific Crimes, is erroneous and adversely affected the conclusion of the judgment. Therefore, the judgment of the court below against the above defendant should not be exempted from the reversal of the judgment on the grounds of appeal on unreasonable sentencing against his defense counsel and the prosecutor.

(2) Next, the gist of the grounds for appeal by the defense counsel of Defendant 2 Co., Ltd. (hereinafter the above defendant Co., Ltd.) is that the sentence imposed by the court below against the above defendant Co., Ltd. is too unreasonable.

Therefore, according to the records, considering various circumstances such as the motive, means, and result of the instant crime, the degree of assets of the said Defendant company, and the circumstances that the entire amount of tax evaded after the crime was paid, the sentence against the said Defendant company is deemed unfair because the sentence against the lower court is deemed to be too unreasonable. Therefore, the above reasons for appeal are reasonable, and therefore, the lower court should not reverse the judgment.

(3) Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and a member of the party is decided after pleading.

The defendants' criminal facts and the summary of the evidence are as shown in each column of the judgment of the court below, and all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

In light of the above circumstances as stated in the reasoning of reversal, the so-called "the defendants' decision" as to the Act on the Aggravated Punishment, etc. of Specific Crimes refers to Article 8 (1) 1 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 9 (1) 1 and 3 of the Punishment of Tax Evaders Act, as to the defendants 1, it appears that the above defendants are the initial offenders, and the above defendants are paying the evaded tax amount after committing the crime. Considering the above circumstances, considering the above circumstances, the above defendants should be considered in light of the above circumstances, so it is reasonable for the defendants to have been sentenced to imprisonment and fine prescribed in Articles 55 (1) 3 of the Criminal Act within the period of punishment and amount to be mitigated, within the scope of imprisonment with prison labor for 2 years and 6 months and 16,000,000 won, the above defendants company shall be sentenced to a fine of 16,000,000 won, and the above defendant company shall be sentenced to imprisonment with prison labor for 5 years and 70 days,00 days.

It is so decided as per Disposition for the above reasons.

Judges Limited Jin-jin (Presiding Judge)