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

[2] The case where it can be inferred that the amount of custody was embezzled with the intent of unlawful acquisition in the crime of embezzlement for business purpose

[3] In a case where the defendants were indicted as embezzlement of all the amount withdrawn from the company's account while trading gold bullion in the company's name, the case holding that it cannot be inferred as embezzlement for the part exceeding the profit amount corresponding to the difference between the sales proceeds of gold bullion and the sales proceeds of gold bullion in light of the characteristics of gold bullion transaction, the company's financial situation, the source of sales proceeds and the method of withdrawal

[1] Article 9(1) of the Punishment of Tax Evaders Act / [2] Articles 355(1) and 356 of the Criminal Act, Articles 307 and 308 of the Criminal Procedure Act / [3] Articles 355(1) and 356 of the Criminal Act, Articles 307 and 308 of the Criminal Procedure Act

[1] Supreme Court Decision 94Do759 delivered on June 28, 1994 (Gong1994Ha, 2148), Supreme Court Decision 2001Do3797 Delivered on February 14, 2003 (Gong2003Sang, 871) Supreme Court Decision 2004Do817 Delivered on June 29, 2006 (Gong2006Ha, 1458) / [2] Supreme Court Decision 99Do457 Delivered on March 14, 200 (Gong2000Sang, 105) (Gong200Ha, 2374)

Defendant 1 and four others

Defendants and Prosecutor

Law Firm continental Law Firm, Attorneys Lee Sin-ap et al.

Seoul High Court Decision 2006No64 delivered on April 27, 2006

All appeals are dismissed.

The defendants and prosecutor's grounds of appeal are examined together (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the tax evasion

A. Whether Defendant 1 and 2 conspired

In comparison with the evidence admitted by the court below, it is just that the court below acknowledged that Defendant 1 and 2 conspired with Defendant 3 to acquire profits by evading value-added tax in the tax-free gold bullion trade on the ground of so-called “the head of the bareboat,” and accordingly, in collusion with Defendant 3, and conducted tax-free gold bullion trade in the name of the new name of the Co., Ltd. (hereinafter “new name unemployment”), and in collusion with Defendant 5 in collusion with Defendant 4, each of them conducted tax-free gold bullion trade in the name of the tax-free gold bullion Co., Ltd. (hereinafter “Sariwon”). There is no error of misconception of facts due to the violation of the rules of evidence as alleged in the grounds of appeal. The appeal pointing this out is not acceptable.

B. Whether there is a misapprehension of the legal principle on the crime of tax evasion

“Fraud or other unlawful act” under Article 9(1) of the Punishment of Tax Evaders Act refers to a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect taxes (see, e.g., Supreme Court Decisions 94Do759, Jun. 28, 1994; 2001Do3797, Feb. 14, 2003).

According to the facts duly admitted by the court below based on its adopted evidence, the defendants' series of acts in the judgment of the court below are just and there are no errors in the misapprehension of legal principles as to the place of appeal, since the defendants' act was conducted under the plan to make profits by tax evasion only without the intent to pursue profits through normal business activities, and was conducted under the plan to make profits by tax evasion, and the facts constitute an active act using a variable and unlawful means in order to bring profits by tax evasion of value-added tax while considering damages from gold bullion trade itself. Thus, the court below's judgment is just and there were no errors in the misapprehension of legal principles as to the place of appeal.

On the other hand, the court below found guilty of the facts charged of tax evasion and indicated only the total sales and sales amount of the above company's name without the tax invoice for the portion of the gold bullion sold under the name of new unemployment and ASEAN (250 kilograms among 850 gold bullion sold under the name of new unemployment and ASEAN, 11 and 250 kilograms among gold bullion 15,293 kilograms sold under the name of ASEAN) without the tax invoice, unlike the written indictment. However, according to the evidence employed by the court below, the court below acknowledged that new unemployment and ASEAN was a transaction without the issuance of tax invoice in the name of the above company, and as long as it constitutes part of gold bullion sold under the same name of tax evasion, it cannot be deemed unlawful to enter it in a lump sum without distinction from the remaining parts. Since the amount stated in the list of criminal facts and written indictment is consistent with each other, Defendant 1's appeal to the effect that such entry in the facts charged is unlawful, it cannot be accepted.

2. As to occupational embezzlement

(a) Public offering, status of a custodian on duty, etc.;

Examining the evidence admitted by the court below in light of the records, it is just that the court below acknowledged that Defendant 1 and 2 embezzled the money deposited in the account, such as the KS from the sales proceeds of gold bullion in collusion with Nonindicted 1, Defendant 3, 4, and 5, and there is no error of law by misconception of facts against the rules of evidence. The appeal by Defendant 1 and 2 against this is not acceptable.

In addition, Defendant 3, 4, and 5 asserted that the so-called “bab president,” as the so-called “Defendant 1 and 2’s instructions were performed, and thus, they are not in a custodian in the crime of embezzlement. However, according to the evidence and records established by the court below, the above Defendants were not aware of the overall progress of the crime of this case as the representative director of the cabs, name and unemployment, and 30 million won, and delivered gold bullion and tax invoice to Defendant 1, 2, and 1, delivered the amount deposited from the gold bullion seller, and received the payment of KRW 120 million, Defendant 3 was delivered to Defendant 4, Defendant 4, and Defendant 5 received KRW 320 million,000,000,000,000,000 won, and Defendant 1 committed a passive act in accordance with the orders of Defendant 1, 2, and Nonindicted 11, and thus, the above Defendants’ appeal cannot be accepted.

B. Whether to recognize the intention of unlawful acquisition

As seen earlier, so long as the defendants sold gold bullion in the name of the company, and received the price in the name of the company, the price shall be deemed as owned by the company. Thus, if the defendants withdrawn the amount of profit out of the sales proceeds and individually used it, the intent of unlawful acquisition is recognized. Therefore, we cannot accept the appeal by the defendants to the effect that the amount of profit is not owned by the company because the defendants thought that the amount of profit from the sale of gold bullion would be embezzled from the beginning, and therefore the intention of unlawful acquisition is not recognized.

The Supreme Court's ruling invoked by the Defendants is related to the most illegal acquisition and sale of shares for the reason that the Defendants did not intend to pay the shares ultimately to the subscribers, or to the company's corporate body, other than the company's representative director, etc., is related to the corporate body of which the company is liable under the civil law. Therefore, it is not appropriate to apply the case to the case where the other party, such as the case, has the intention to make a transaction with the company and to deposit the shares in the company.

C. As to the amount of embezzlement

The court below found that the defendants embezzled all of the amount of money withdrawn from the company account, such as the case cream (K 2.70,139,000 won, 150,000 won for new c. 1.50,000 won for new c. c. 3,846,957 won for new c. 88,835,641 won, and c. 52,46,4644 won for new c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. s. 2. c. c. c. c. c. c. c. c. c. c. c. c. c. c.

A prosecutor must prove that there is an act of embezzlement as an act of realizing the intent of unlawful acquisition. The evidence should be based on strict evidence with probative value that leads to a judge to a reasonable doubt. If there is no such evidence, even if there is doubt of guilt against the defendant (see, e.g., Supreme Court Decisions 97Do1962, Feb. 13, 1998; 2004Do3532, Sept. 24, 2004). Meanwhile, the defendant asserts that it is difficult to explain his whereabouts or place of use, or that the funds used in the place of use alleged by the defendant were used for other funds, and that there is no evidence to prove that the defendant used in the place of use was used for personal purposes, such as where there is a lack of evidence to prove that the defendant used the funds for the place of use alleged by the defendant, and there is no other evidence to prove that the defendant used the funds for the personal purposes, such as embezzlement of the above funds with the intent of unlawful acquisition, etc. (see, e.g., Supreme Court Decision 2009Do4740.

According to the records and records, Defendant 1 and 2 were entirely denied whether they participated in the crime while not participating in the crime. As such, the use of the gold bullion was ambiguous. The other Defendants only withdrawn money from the company’s account and delivered it to Defendant 1, 2, and Nonindicted 1, and they were ambiguous. However, as seen earlier, it cannot be deemed that the Defendants purchased and sold tax-free gold bullion within a short period under the name of KS, etc. against a large number of companies, and did not have paid the purchase price of gold bullion traded as cash. Moreover, it is reasonable to view that the amount equivalent to the purchase price of gold bullion was paid from the sales price of gold bullion. Defendant 3 and 4, etc. were not paid for the sales price of gold bullion. In light of the fact that the Defendants’ withdrawal and transfer of gold bullion was made first with the Internet banking on the day of the purchase and sale of the gold bullion, and the Defendants’ withdrawal of all remaining profits from the transactions of gold bullion, such as the withdrawal and transfer price of gold bullion through the Internet bank.

In the same purport, the court below is just in holding the Defendants not guilty on the ground that the Defendants embezzled the part exceeding the benefits corresponding to the difference between the sales proceeds of gold bullion and the sales proceeds, among the funds withdrawn from the company accounts, such as cream, and there is no error in the misapprehension of legal principles as to the degree of proof necessary for the acknowledgement of unlawful acquisition intent in the crime of embezzlement in violation of the rules of evidence alleged in the grounds for appeal, or in the misapprehension of legal principles as to the degree of proof

In addition, even if comparing the evidence employed by the court below with the record, there is no circumstance that makes it difficult to conceal the part of the above withdrawn amount as embezzlement. Thus, the defendant's appeal that the above profit portion cannot be viewed as embezzlement cannot be accepted.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)