(a) The significance of public offering in the establishment of co-principal;

(b) Punishment of another person who does not directly participate in an act of implementation;

(c) Criteria for determining the receipt of crimes of tax evasion, such as corporate tax;

(d) Standard for the period of prescription of a public prosecution where a sentence is unfilled due to a change of Acts after an offense.

A. In the establishment of a co-principal, it is sufficient that not only when there is a conspiracy between accomplices in advance, but also when there is an intention to realize a co-principal's intent in cooperation with the implied view.

B. Even if any accomplice did not directly participate in the conduct of the commission, he/she has to be held liable as a co-principal for an act of sharing another accomplice’s share.

C. The number of crimes of tax evasion is determined on the basis of recovery of satisfaction of the constituent elements of the violation, and corporate tax or corporate business tax is the taxable period. Therefore, each business year and goods tax should be paid each business year and each month by the end of the following month. Thus, the crime of tax evasion is established one by one for each payment period.

D. In a case where the statutory penalty is unhulled due to the amendment of the law after the crime, the statutory penalty applicable to the relevant crime under Article 1 of the Criminal Act (the statutory penalty of the new law) is based on the statute of limitations period.

Article 30 of the Criminal Act; Article 9(1) of the Punishment of Tax Evaders Act; Articles 37 and 1 of the Criminal Act; Article 249 of the Criminal Procedure Act

A. Supreme Court Decision 85Do2317 delivered on December 24, 1985, Supreme Court Decision 87Do945 delivered on July 7, 1987, Supreme Court Decision 87Do938 delivered on June 22, 1982, Supreme Court Decision 4290Do298 delivered on October 25, 1957

Defendant

Defendant

Attorney Lee In-bok

Seoul High Court Decision 81No2803 Decided November 28, 1986

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

The grounds of appeal are examined.

1. As to the first and second points:

As for the establishment of joint principal offenders, it is sufficient that the above act of tax evasion should be carried out in cooperation with the employees of the above corporation, as well as by the intention of realizing the common criminal intent (see Supreme Court Decision 85Do2317, Dec. 24, 1985). Even if an accomplice did not directly participate in the act of tax evasion, it should be held that the act of tax evasion is a joint principal offender (see Supreme Court Decision 87Do945, Jul. 7, 1987). According to the reasoning of the lower judgment, the lower court determined that the above act of tax evasion was a major shareholder of the above corporation, non-indicted 2, non-indicted 3, and non-indicted 4, who were employed by the above corporation as the chairperson of each of the above board of directors, and that the defendant's act of tax evasion was not carried out by the above corporation's representative director and the representative director of the above corporation and the related non-indicted 5, who were actually involved in the act of tax evasion, and thus, it should be viewed that the above act of tax evasion was carried out by way.

2. On the third ground for appeal

(1) According to the reasoning of the lower judgment, the lower court determined that: (a) the Defendant, in collusion with Nonindicted Co. 6, etc., committed the crime of KRW 1,579,640 of corporate tax for the taxable period from January 1, 1973 to December 31 of the same year; (b) KRW 1,367,926 of corporate business tax for the taxable period from July 1, 1973 to December 31 of the same year; and (c) KRW 14,352,930 of corporate tax for the same taxable period; and (d) KRW 17,300,496 of the total amount of goods tax for the same taxable period as indicated in its reasoning; and (e) based on the so-called Punishment of Tax Evaders Act, Article 8(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes (Act No. 250, Feb. 24, 1973; and (e) Article 301 of the former Punishment of Tax Evaders Act (amended by Act No. 13014) of the same Act).

However, the number of crimes of tax evasion is determined on the basis of the recovery of satisfaction of the constituent elements of the violation (see Supreme Court Decision 82Do938, Jun. 22, 1982) and corporate tax or corporate business tax is a taxable period. Since each business year and goods tax should be paid each business year and until the end of the following month, the crime of tax evasion shall be deemed to constitute one crime for each payment period.

Nevertheless, the decision of the court below that the goods tax for which one crime is constituted shall be deemed to constitute one crime by misunderstanding the legal principles on the number of crimes committed by tax evasion, thereby failing to exhaust all necessary deliberations, on which the court below erred by misapprehending the legal principles on the number of crimes committed by tax evasion. The grounds for appeal are with merit.

(2) According to the reasoning of the judgment below, the court below reversed the part of the judgment of the court of first instance that acquitted the Defendant on the ground that the statute of limitations has expired for the crime of evading KRW 2,49,120 (part of the criminal facts in the first instance case of the original adjudication) with respect to the goods amounting to KRW 8,330,40 among the storage batteries in September 1973 and the goods amounting to KRW 8,49,120 among the storage batteries in this case.

However, in a case where the statutory penalty is unfasible due to the amendment of the law after the crime, the statutory penalty applicable to the crime in question under Article 1 of the Criminal Act shall be the basis of the statute of limitations period (see Supreme Court Decision 4290Du298 delivered on October 25, 1957).

However, in applying the law to the crime of Article 3 (A) of the above judgment, including the act of evading 2,49,120 won of the goods tax on September 1973 (the portion which was acquitted in the first instance court), the court below set the rates under Article 9 (1) 1 and 3 of the Punishment of Tax Evaders Act of the corporation at the time of trial on the ground that the statutory punishment is unfasible by the amendment of the law after the crime was committed. Thus, the court below should determine whether the statute of limitations has expired based on the statute of limitations period. According to Article 17 (amended by Act No. 2932 of Dec. 22, 1976) of the same Act, the statute of limitations under Article 9 of the same Act, which was enforced at the time of the prosecution of the case, shall expire after the lapse of two years (According to the amended Punishment of Tax Evaders Act Article 17 of the same Act, even if the statute of limitations has been amended after the prosecution was amended after the amendment of the statute after the prosecution period).

On the other hand, in the number of crimes of tax evasion, the part of the goods tax among the goods tax of Article 3 (A) in the original adjudication is established every month, as stated earlier. Thus, the statute of limitations has expired after the lapse of two years prior to November 21, 1975, which is the date of the indictment of this case, since the defendant failed to pay and pay the goods tax for the month of September 1973, and 10.31 of the same year, which is the due date for the payment.

Nevertheless, the court below held that the statute of limitations has not been expired due to the determination of the court below, based on the statutory penalty under Article 8 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, on the premise that the act of removing cell cell from goods in September 1973 also constitutes a crime under Article 8 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, which was enforced from October 1973 to December 12 of the same year, based on the fact that the act constitutes a crime under Article 8 (1) 1.

3. However, since the guilty portion of subparagraph 3 (A) of the crime committed in the original trial is in a substantive concurrent relationship with other guilty parts, the illegality as seen above of subparagraph 3 (A) of the guilty portion affects other guilty parts, and the judgment of the court below is reversed in its entirety and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yellow-ray (Presiding Justice)