[1] The time when the final appellate court rendered final and conclusive judgment as to the rejected portion of the grounds of final appeal on the grounds that the allegations in the grounds of final appeal are groundless (=the time the judgment of the Supreme Court rendered a final and conclusive judgment), and whether the same final and conclusive power occurs even in cases where the grounds of final appeal were rejected

[2] In a case where the court below prior to remand found the defendant guilty of violation of the former Act on the Aggravated Punishment, etc. of Specific Crimes (tax) to the effect that the defendant evaded comprehensive income tax on overseas dividend income by fraud or other improper means after establishing the local subsidiary overseas, and the defendant's ground of appeal on this ground is related to the fact-finding, etc. which belongs to the exclusive authority of the court below, which is the fact-finding court, in the judgment of remand, and the court below rejected the defendant's assertion that Article 17 of the Adjustment of International Taxes Act should apply, among the grounds of appeal, on the grounds that the defendant's ground of appeal was unlawful, since

[1] The part rejected by the court of final appeal on the ground that the argument in the grounds of final appeal is groundless at the same time as the judgment is rendered, and the defendant cannot contest this part of the judgment, and the remanded court cannot make a decision contrary thereto. Thus, the defendant cannot make a claim as to this part as the grounds of final appeal, and even if the court below partially examined the evidence concerning the facts constituting the crime after remand, it is nothing more than the meaning of the court below. This legal principle also applies to the case where the argument in the grounds of final appeal is merely a criticism on the selection of evidence and fact-finding belonging to the court of final judgment, which is a fact-finding court, or is rejected

[2] The case affirming the judgment of the court below prior to remand on the ground that the defendant was guilty of violation (tax) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 9919, Jan. 1, 2010; hereinafter “Special Crimes Act”) with the purport that he evaded comprehensive income tax on overseas dividend income by fraud or other unlawful means after establishing the local subsidiary overseas, and that the defendant's assertion that the timing of attribution of dividend income, timing of tax evasion, and number of crimes under Article 17 of the Adjustment of International Taxes Act should be different from the facts charged, among the grounds of appeal by the defendant, should be different from the facts acknowledged by the court below which is the fact-finding court, or on the premise that the facts recognized by the court below are inconsistent with the facts established by the court below, and the court below rejected the judgment of the court below on the ground that the defendant was not guilty of the remaining violation of the former Act (the judgment of the court below which found the defendant not guilty of the remaining portion of the judgment and the remaining part of the grounds for appeal are reversed.

[1] Articles 383 subparag. 4 and 397 of the Criminal Procedure Act, Article 8 of the Court Organization Act / [2] 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 9(1) of the former Punishment of Tax Evaders Act (Amended by Act No. 9919, Jan. 1, 2010); Article 3(1) and (6) of the Adjustment of International Taxes Act; Article 17 of the Adjustment of International Taxes Act; Article 397 of the Criminal Procedure Act; Article 8 of the Court Organization Act

[1] Supreme Court Decision 2002Do3062 Decided February 28, 2003, Supreme Court Decision 2004Do8651 Decided March 24, 2005 (Gong2005Sang, 693) Supreme Court Decision 2005Do7582 Decided February 9, 2006, Supreme Court Decision 2006Do1640 Decided May 26, 2006 (Gong2006Ha, 1305)

Defendant

Defendant and Prosecutor

Attorney Kang Young-young et al.

Supreme Court Decision 2010Do1191 Decided January 27, 2011

Seoul High Court Decision 2011No338 decided June 24, 2011

The part of the judgment of the court below, excluding the portion not guilty as to the violation of trust, shall be reversed, and that part of the case shall be remanded to the Seoul High Court. The prosecutor's appeal as to the

The grounds of appeal are examined.

1. As to the grounds of appeal by the Defendant and the Prosecutor on the violation of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Tax) concerning Nonindicted Corporation 1 overseas

A. The part rejected by the court of final appeal on the ground that the argument in the grounds of final appeal is groundless at the same time as the court of final judgment rendered a final judgment and the defendant can no longer contest against this part, and the court of remanded can no longer make a decision contrary thereto. Thus, the defendant cannot make a claim in this part as the grounds of final appeal, and even if the court below made a partial examination of evidence as to this part of the crime after remand, it is nothing more than that without meaning (see, e.g., Supreme Court Decision 2004Do8651, Mar. 24, 2005). Such a legal principle equally applies to a case where the argument in the grounds of final appeal is merely a criticism against the selection of evidence and the recognition of facts belonging to the whole court of final judgment, which is a fact-finding court, or is based on a fact-finding which

B. Examining the reasoning of the lower judgment after remand in light of the record, the following facts are revealed.

(1) The Defendant’s defense counsel asserted in the final appeal on the judgment of the court below prior to remand that “The most of the amounts actually distributed in 2007 shall be deemed to have been distributed in 2004, 2005, and 2006 pursuant to Article 17 of the Adjustment of International Taxes Act (hereinafter “the National Adjustment Act”), so the time when dividend income accrue, the period of the crime of tax evasion, and the number of crimes shall be different from those of the charges” (hereinafter “previous grounds of final appeal”). However, in the remanded judgment, the allegation in the previous grounds of final appeal 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 court, or on the premise of facts different from the facts recognized by the court below, the lower court rejected the remaining part of the judgment of the court below pertaining to the crime of tax evasion and the crime of tax evasion under the former part of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “the former grounds of final appeal”). However, the lower judgment was reversed for the remaining grounds of appeal on the grounds of appeal.

(2) After remanding the case, the lower court presumed that the allegation in the grounds of appeal was rejected on the grounds that it was unlawful, it did not exclude ex officio trials under the findings of fact and the application of the law after remanding the case, and found the facts as stated in its reasoning by comprehensively taking account of the adopted evidence, and on this basis, found the facts as stated in its reasoning and on this basis, found that the taxation on deemed dividend is preferentially applied pursuant to Article 17 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (tax) related to Nonindicted Corporation 1, as alleged in the previous grounds of appeal

C. In light of the legal principles as seen earlier, the part rejected the argument in the previous grounds of appeal of this case becomes final and conclusive simultaneously with the judgment of remand, and the defendant cannot contest this part, and the court that has been remanded cannot make a decision contrary thereto.

Nevertheless, the court below erred in the misapprehension of legal principles as to the final binding power, and the prosecutor's ground of appeal pointing this out is with merit, as stated in its reasoning, that the court below acquitted part of the crime of violation (tax) of the former Act on the Aggravated Punishment, etc. of Specific Crimes related to non-indicted 1 overseas corporation

Meanwhile, among the grounds of appeal on this part, the Defendant’s assertion on the exchange rate on the date of deemed dividend constitutes an objection to the lower judgment’s rejection of the previous grounds of appeal on the premise that the final binding force does not occur, and thus, cannot be accepted without the need for further review.

2. As to the ground of appeal by the prosecutor on the not guilty of giving property in breach of trust

Examining the reasoning of the judgment below after remand in light of the records, it is justifiable for the court below to find the defendant not guilty on the ground that there is no proof of the crime of violation of trust in this case after remanding. There is no error in the misapprehension of the logical rules and the rule of experience and the principle of free evaluation of evidence as alleged in the grounds of appeal.

3. Conclusion

Therefore, without examining the remaining grounds of appeal, the part of the judgment of the court below concerning the non-indicted 1's non-indicted 1's crime of violation of the former Act on the Aggravated Punishment, etc. of Specific Crimes (taxes) should be reversed. Since the guilty part among the crime of violation (taxes) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (taxes) related to the non-indicted 1's overseas crime and the remaining guilty part among the crime of violation of the former Act on the Aggravated Punishment, etc. of Specific Crimes (taxes) are deemed to be concurrent crimes under the former part of Article 37 of the Criminal Act, the court below rendered a single punishment. Accordingly, the remaining part of the judgment

Justices Jeon Soo-ahn (Presiding Justice)