Defendant

Defendant

Park Dong-Jin Park

(Omission)Name of Law Firm Lee In-bok

Seoul Central District Court Decision 2006Gohap110 Decided May 19, 2006

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

One day of detention before the pronouncement of the judgment below shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for two years from the date of the final judgment.

Seized Bank of Korea notes of KRW 10,000 (No. 1) shall be confiscated.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

The lower court recognized that the Defendant received KRW 200 million from Nonindicted Party 1 for the purpose of evading a tax investigation or correcting or cancelling the amount of tax imposed on Nonindicted Party 1 by making the Defendant pay to Nonindicted Party 1. However, there is no fact that the Defendant made Nonindicted Party 1 a tax investigation by illegal use of the illegal use. In addition, the demand for ex officio rectification or ex officio revocation is included in the Certified Tax Accountant Act as one of the duties of a tax accountant in the “act on behalf of a taxpayer in relation to the investigation or disposition, etc. of a tax office.” Since the demand for ex officio rectification or ex officio revocation is included in the “act on behalf of a taxpayer in relation to the investigation or disposition, etc. of a tax office” under the Certified Tax Accountant Act, it does not constitute a crime even if the Defendant received money from a tax official in charge to make a request for ex officio rectification, etc., and even if the Defendant received money under the pretext of a tax

Therefore, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous by misapprehending the legal principles or thereby affecting the conclusion of the judgment.

B. Unreasonable sentencing

In light of various circumstances, such as the fact that the Defendant had no criminal record and most of the money received from Nonindicted Party 1 were returned, the sentence of one year and four months sentenced by the lower court against the Defendant is too unreasonable.

2. Determination

A. Judgment on misconception of facts or misapprehension of legal principles

(1) Facts of recognition

According to the statements made by Nonindicted Party 1 in this Court and the evidence duly examined and adopted by the lower court, the following facts may be recognized:

(A) Around October 2004, the Seoul regional tax office (department name omitted) conducted a tax investigation with respect to Nonindicted 1 and 2’s financial credit business entity (trade name omitted). Nonindicted 1 and 2 were suspected of evading a large amount of tax while conducting the loan business, and around December 17, 2004, notified Nonindicted 1 of a tax investigation with respect to Nonindicted 2’s property on or around March 17, 2005, and seized Nonindicted 1’s property prior to the determination of national tax on or around February 4, 2005 when conducting a tax investigation with respect to Nonindicted 2’s property. Accordingly, Nonindicted 1 and 2 were delegated to Nonindicted 3 attorney-at-law of the Seoul regional tax office to conduct a large amount of tax evasion while conducting the loan business, even if they did not directly conduct the loan business, and did not request the appointment of Nonindicted 1 and 2 to conduct the tax investigation with respect to himself.

(B) Around March 2005, Nonindicted 3’s attorney decided that it is necessary to obtain assistance from a tax accountant who well knows tax relations to handle the above tax investigation case, and around March 2005, at the Seoul Regional Tax Office, delegated the authority to receive the above tax investigation case by either having written opinions or submitting documents, etc. to Nonindicted 1 with respect to the above tax investigation case. However, in order for the tax accountant to state his opinion at the tax office or the National Tax Service, etc. for the person subject to the tax investigation, it is necessary to have the power delegated to the said authority. As such, Nonindicted 1 delegated Nonindicted 4’s tax accountant with respect to the above tax investigation case at Nonindicted 3’s office, stating that “I delegate the authority to attend or state his opinion to an investigation under the provision of Article 81-4(1) of the Framework Act on National Taxes,” and that one and Nonindicted 2’s proxy name (No. 786, No. 787 pages) to the Seoul Regional Tax Office to present it to the Seoul Regional Tax Office on the same day.

(C) After that, Nonindicted 4 certified tax accountant prepared documents, etc. to be submitted to the Seoul regional tax office in relation to the above tax investigation case. Nonindicted 3 attorney submitted documents, etc. on several occasions to the Seoul regional tax office, and sought opinions from Nonindicted 4 certified tax accountants and Nonindicted 1 together with Nonindicted 1. However, the Seoul regional tax office did not reflect the opinion submitted by the said attorney while conducting a tax investigation, and did not present the data on conducting a tax investigation. Accordingly, in order to smoothly deal with the above case by forming a friendly relationship with the public official in charge of the above tax investigation case, the above attorney did not work for Nonindicted 5 at the Seoul regional tax office in the past, and the defendant was aware that the Seoul regional tax office opened business as a certified tax accountant around January 2005, and requested the defendant to provide the above tax investigation records by proxy around 15, 2005 (name omitted).

(D) On April 18, 2005, Non-Indicted 3’s attorney allowed the Defendant to enter his office and Non-Indicted 4 tax accountants, and asked the Defendant to answer because Non-Indicted 1 could not know the contents of the Seoul Regional Tax Office’s investigation. Then, the above attorneys, Non-Indicted 4 tax accountants, and the Defendant discussed about the future measures. At that time, the above attorney-at-law provided the Defendant with KRW 20 million as a proxy fee for the tax investigation case.

[Defendant asserts that the above attorney-at-law's fee is not remuneration for the above tax investigation case. However, the above attorney-at-law delegated with the above tax investigation case by Nonindicted 1 was first delegated to Nonindicted 4 tax office in Seoul regional tax office, but did not accept the evidence of Nonindicted 1's punishment but rather inform the public official in charge of the above tax investigation case in Seoul regional tax office of the fact that the defendant had worked for the defendant as the officer in charge of the above case in Seoul regional tax office in order to smoothly handle the above case. ② The above attorney-at-law had already asked the defendant to give 4 tax accountants KRW 20 million before requesting the above tax investigation case, and requested the above attorney-at-law to submit documents to the Seoul regional tax office in order to obtain advice on the above case, it is difficult to see that the defendant did not have the above attorney-at-law's right to ask for explanation on the tax investigation case in Seoul.

(E) On April 20, 2005, Nonindicted 3’s attorney provided meals with the Defendant and Nonindicted 1, and introduced the Defendant for the first time to Nonindicted 1. The Defendant worked as the director of the tax office before opening the tax accountant business and well aware of Nonindicted 1’s tax investigation procedures. On the same day, the said attorney instructed Nonindicted 6, who is his attorney-at-law, to prepare a proxy form to the effect that the Defendant was delegated with the authority to state his opinion on the above tax investigation case from Nonindicted 1’s sentence, and that Nonindicted 6 sent the proxy form to the said attorney-at-law office to contact the Defendant and Nonindicted 1 and enter Nonindicted 6’s resident registration number in the letter of delegation. On the 21st of the same month, the Defendant and Nonindicted 1 sent the proxy form to Nonindicted 6’s office, and Nonindicted 6, who requested the National Tax Service to change his name and authority on taxation, including income tax, and then requested the Defendant to affix his proxy form to the Seoul National Tax Service’s letter of delegation (on 414, if so requested.

In the investigation agency and the court below, the defendant made a power of attorney to the non-indicted 1 because he did not open his tax accountant office for the last time, and the non-indicted 1 made a power of attorney around April 2005 (the investigation record No. 2, No. 745) and held the power of attorney as the defendant's office. However, the non-indicted 1 made a power of attorney at the National Tax Service's office and submitted it to the Seoul Regional Tax Office as an office and the non-indicted 3 attorney's office did not prepare a power of attorney. On the other hand, the non-indicted 1 made a power of attorney at the non-indicted 3 attorney office and the non-indicted 2's office, and made a power of attorney to the defendant's office.

① Both Nonindicted 6 and Nonindicted 7, the chief secretary of the office of Nonindicted 3’s attorney-at-law, stated in an investigative agency that they made a proxy form for the Defendant at the above attorney-at-law office twice and gave the Defendant the statement. Nonindicted 4 also made a statement in compliance with Nonindicted 1’s statement in an investigative agency, including the fact that he made a proxy form submitted to the Seoul Regional Tax Office and sent Nonindicted 6 by e-mail. ② The proxy form submitted by the Defendant to the police (in 40 pages, 41), and the proxy form submitted to the Seoul Regional Tax Office (in 665 pages, 666), Nonindicted 4’s proxy form (in 782 pages, 783 page, 783) sent by Nonindicted 4, and the defendant made it difficult to make a proxy form for Nonindicted 1, 46, and 783’s statement from February 24, 200 to March 28, 205.

(F) After having the Defendant enter Nonindicted 1 in his office, the Defendant stated that “In the Republic of Korea is the head of the Seoul Regional Tax Office’s head, and Nonindicted 5, who is currently in charge of the tax investigation, was in his office before the towing. There is only the person capable of resolving the instant case.” Meanwhile, on April 25, 2005, the Defendant submitted the power of representation to the Seoul Regional Tax Office, and requested that Nonindicted 5, who is the officer in charge of the instant tax investigation, be informed of the details of the investigation. Nonindicted 1, along with Nonindicted 1, the Seoul Regional Tax Office, did not submit the documents stating his opinion to the Seoul Regional Tax Office for Nonindicted 1.

(G) On the other hand, on April 28, 2005, the Seoul Regional Tax Office served a tax notice on Nonindicted 2, 2001 through 2004, stating that the global income tax and the resident tax amount of KRW 22.6 billion shall be paid until May 15, 2005. Nonindicted 4 certified tax accountants received it on the 29th of the same month and notified the Defendant and Nonindicted 1 thereof. Accordingly, the Defendant asked the Defendant that “ how taxes are imposed” by phone call to the Defendant, and the Defendant stated that “I would like to know how the Seoul Regional Tax Office may cancel or correct the tax imposed ex officio even if the tax was imposed.”

(h) On May 2, 2005, Nonindicted 1 received a tax payment notice from Nonindicted 4 Tax Accountants for the above tax payment notice on Nonindicted 2; on the 3th of the same month following the following day, Nonindicted 1 received a written notice of change of the payment deadline for the above global income tax on Nonindicted 2 served by the Seoul Regional Tax Office from Nonindicted 4 Tax Accountants on the 15th of the same month to the 3th of the same month. After that, Nonindicted 1 had cash of KRW 200 million with the Defendant’s office on the 3th of the same month, Nonindicted 1 gave the Defendant a notice of change of the payment deadline for the above global income tax on the 15th of the same month. At that time, Nonindicted 1 did not talk with the Defendant on the appeal of the above tax imposition disposition, and there was no fact that the Defendant prepared a power of delegation. The Defendant kept the said money at his own office and voluntarily submitted it to the police on August

(i) On May 11, 2005, Nonindicted Party 1, along with the Defendant, was investigated by the Seoul Regional Tax Office, and failed to submit explanatory materials to the person in charge of the above National Tax Service. However, on the 15th of the same month, global income tax, etc. was imposed on Nonindicted Party 1. On June 15, 2005, the Defendant, along with Nonindicted Party 3’s attorney, requested the Seoul Regional Tax Office to present documents related to the tax investigation on Nonindicted Party 1’s siblings, but was rejected.

(j) On the other hand, at the end of June 2005, Non-Indicted 1 made a request for a trial to the National Tax Tribunal on July 8, 2005, after having delegated the attorney-at-law of (name omitted) law firm with KRW 10 million to himself and Non-Indicted 2 as an agent for the procedure for protesting against the above tax imposition disposition against himself and Non-Indicted 2. After this, Non-Indicted 1 made a request to the Defendant on the 13th day of the same month to the effect that, as seen above, he was called the Defendant, he did not have been 200 million won, but did not have been resolved at all, and that it was difficult for him to do so, and the Defendant made a reply to the effect that he made efforts, such as making a talk by talking that he had his blood and made efforts to change his time.

(2) Determination

(A) Article 2 subparag. 5 of the Certified Tax Accountant Act provides that "an agent representing taxpayers related to investigation, disposition, etc. of a tax office" shall be paid by taxpayers, and a tax accountant may make a statement, either orally or in writing, on behalf of taxpayers, about the investigation, disposition, etc. of a tax office. Such statement of opinion shall include a demand for ex officio correction or revocation of a tax imposition disposition. Therefore, in a case where a tax accountant receives money from taxpayers, it shall be deemed a legitimate receipt of money. On the other hand, in a case where a tax accountant receives money from taxpayers, it shall be deemed that a taxpayer receives money from a taxpayer for a tax office's investigation, disposition, or for a tax official to make an ex officio correction or cancellation of a disposition, and where a tax accountant receives money from a tax office in favor of taxpayers under the pretext of a tax office's discretion, it shall not be deemed that a public official has received just remuneration for a "tax office's statement of opinion", and where a person has received money from a public official under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Punishment, even if it actually received money and valuables or profits from a public official.

(B) In this case in light of the above legal principles, if the Defendant received KRW 200 million from Nonindicted 1 as above, not the remuneration for statement on behalf of Nonindicted 1, but the Defendant’s public official of the Seoul Regional Tax Office who was in charge of Nonindicted 1’s tax assessment on Nonindicted 2’s punishment, received the disposition of imposing taxes on Nonindicted 2 ex officio correction or cancellation of it, it constitutes a violation of Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes. However, except for the partial statement from the police (with no capacity to provide evidence) from the investigative agency to this court, the Defendant did not call that Nonindicted 1 would ex officio correct or revoke the disposition of imposing taxes on Nonindicted 2 by paying the above KRW 200 million to Nonindicted 1, under the pretext of expenses, funds, school expenses, and other expenses, and the Defendant received a demand for direct correction or revocation of the tax amount under the pretext of remuneration or ex officio revocation of the previous tax audit, and thus, the Defendant was given a statement or demand for cancellation of the tax amount under the pretext of the above charges.

On April 205, Non-Indicted 1 introduced the defendant from Non-Indicted 3's attorney around April 20, 2005 to this court, it stated that the defendant was able to correct the amount of KRW 22.6 billion to the defendant after being imposed tax on Non-Indicted 2, and that the defendant was able to correct the amount of KRW 22.6 billion on Non-Indicted 2 after being imposed the tax on Non-Indicted 3's attorney at the investigative agency, and then the head of the Seoul Regional Tax Office before Non-Indicted 1 was in charge of the investigation, Non-Indicted 5 officer in charge of the current tax investigation, was in charge of Non-Indicted 5 officer in charge of the tax investigation, and the person who was retired from the (name omitted) office in the year was retired from the (name omitted) office, and how the defendant would be able to correct the amount of KRW 22.6 billion after being imposed the tax on Non-Indicted 2's notice.

그런데 위 인정사실에 의하여 알 수 있는 다음과 같은 사정, 즉 ① 공소외 1은 수사기관에서부터 이 법정에 이르기까지 일관되게 피고인이 로비자금 또는 교제비 등의 명목으로 현금 2억 원을 가져오라고 하였다고 진술하고 있으며, 특히 검찰수사 도중 공소외 1이 피고인으로부터 2억 원 중 1억 7,000만 원을 돌려받고 합의한 뒤에도 위 진술을 유지하고 있는 점, ② 공소외 1이 공소외 3 변호사에게 자신과 공소외 2에 대한 세무조사 사건의 처리를 위임하자 위 변호사는 담당 세무공무원인 공소외 5를 잘 안다는 이유 등으로 다시 피고인에게 위 세무조사 수감대리를 위임한 뒤 그 보수 명목으로 2,000만 원을 주었는바, 피고인은 그에 따라 공소외 5를 찾아가 세무조사를 한 자료를 요구하거나 공소외 1이 서울지방국세청으로부터 조사를 받을 때 입회를 하였을 뿐 공소외 1과 사이에 별도로 세무조사 수감대리 약정을 하지 않은 점(피고인은 자신이 공소외 3 변호사와는 별도로 공소외 1과 사이에 세무조사 수감대리 약정을 하였다고 주장하면서 서울지방국세청 등에 제출한 위임장 등을 그 증거로 제시하고 있으나, 위 위임장 등은 공소외 3 변호사가 피고인에게 위 세무조사 수감대리를 위임한 뒤 피고인이 서울지방국세청에 가 공소외 1 등을 대리하여 의견진술을 하려면 위임장이 필요하자 위 변호사 사무실에서 작성하여 준 것임은 앞서 본 바와 같고 달리 피고인이 공소외 1과 사이에 세무조사 수감대리 약정을 하였음을 인정할 자료가 없다), ③ 공소외 2에 대한 세금부과처분이 있은 후 직권경정의 촉구는 피고인이 공소외 3 변호사로부터 위임받은 세무조사 수감대리에 포함된다고 볼 수 있으며, 불복청구에 대하여는 공소외 1과 사이에 계약서나 위임장을 작성한 사실이 없을 뿐만 아니라 구두로라도 불복청구의 위임에 대한 약정이 이루어진 바도 없는 점{피고인은 자신이 2005. 5. 25.경 이의신청서 초안을 작성해 공소외 1에게 주었다면서 2억 원을 받을 당시 불복청구에 대한 묵시적인 합의가 있었다고 주장하나, 납세자가 세무사에게 세무조사 수감대리를 위임하였다고 하여 반드시 그 세무사에게 불복청구를 다시 위임한다고 할 수 없는 점, 공소외 1이 2억 원을 피고인에게 줄 당시 두 사람 사이에 불복청구에 관한 언급이 전혀 없었던 점, 공소외 1은 나중에 피고인이 아니라 법무법인에 불복청구를 위임한 점 등의 여러 사정에 비추어 보면, 설령 피고인이 이의신청서 초안을 작성해 공소외 1에게 준 사실이 있다고 하더라도 그러한 점만으로 공소외 1이 피고인에게 2억 원을 줄 당시 피고인과 공소외 1 사이에 불복청구에 관한 약정이 있었다고 할 수 없고 달리 이를 인정할 자료가 없다), ④ 공소외 1은 2005. 4. 29. 공소외 2에 대하여 200억 원이 넘는 거액의 세금이 부과된 사실을 알게 된 후 2005. 5. 2. 그 고지서를 받았으며 같은 달 3. 다시 위 세금의 납부기한을 같은 날로 하는 변경고지서를 받은 후 피고인에게 2억 원을 주었는바, 공소외 1이 불복청구 등을 염두에 두고 피고인에게 돈을 주려고 했다면 위와 같이 급박하게 돈을 줄 필요는 없을 것으로 보이며, 특히 공소외 3 변호사나 (명칭 생략)법무법인에 세무조사 수감대리와 불복청구 위임에 대한 보수로 1억 원과 1억 1,000만 원밖에 주지 않은 공소외 1이 피고인이 보수에 관하여는 아무런 말도 하지 않았음에도 보수 명목으로 현금 2억 원을 갑자기 주었다기보다는 거액의 세금이 부과된 상태에서 로비를 해서라도 세금부과를 경정시킬 수 있기를 바라면서 그 로비자금 명목으로 돈을 주었다고 보는 것이 자연스러운 점, ⑤ 공소외 1은 2005. 7.경 피고인과 전화통화를 하면서 2억 원을 주었는데 일이 해결된 것이 전혀 없다며 로비가 되었는지 궁금하다는 취지로 물어보았는바, 피고인이 2억 원을 받을 당시 로비자금 등의 명목이 아니었다면 피고인이 로비 운운하는 공소외 1의 질문에 대해 반박했어야 함에도 로비라고 하는 것이 쉬울 것 같으면 뭐하러 땀을 흘리면서 노력을 하느냐는 취지의 대답을 한 점, ⑥ 공소외 1이 공소외 2에 대한 과세처분을 알게 된 일시나 피고인에게 2억 원을 건넨 시간 등 일부 사항에 대하여 일관된 진술을 하지 못하고 있으나, 공소외 1은 2005. 4. 29. 공소외 4 세무사로부터 공소외 2에 대한 조세부과처분이 있었다는 사실을 들은 후 2005. 5. 2. 고지서를 건네받았으며, 같은 달 3.에는 납부기한을 변경하는 고지서를 다시 건네받았으므로 과세처분을 알게 된 시기에 관한 기억에 다소간의 혼동이 있을 수 있는 것으로 보이고, 공소외 1은 수사기관에서부터 법정에 이르기까지 일관되게 2005. 5. 3. 피고인에게 돈을 주었다고 진술하였으나 오전인지 오후인지에 관하여는 그 진술이 번복되다가 최종적으로는 그날 오전에는 자신이 병원에 갔으므로 오후에 준 것이 맞다고 진술하였는바, 공소외 1이 피고인에게 돈을 준 것은 경찰 조사시로부터 몇 개월 전의 일이므로 그 시간까지 정확히 기억하지 못할 수도 있다고 보이므로 이러한 사정만으로 공소사실의 핵심적인 사항에 관한 공소외 1의 진술을 탄핵할 사유가 있다고 보기 어려운 점 등에 비추어 보면, 공소외 1의 위 진술은 신빙성이 있다고 할 것이다.

(C) Accordingly, according to the evidence duly examined and adopted by the court below including Nonindicted 1’s statement, the defendant can sufficiently recognize the fact that he received KRW 200 million from Nonindicted 1 for the purpose of correcting the tax imposition disposition ex officio with respect to the tax investigation case by paying the royalties to the public officials in charge, and as long as the defendant received the said money under the above pretext, even if the defendant did not think that the public official in charge would harm the official authority of the defendant, or did not use the said money as the rain funds, it does not affect the establishment of the crime of arranging and taking over the job under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, even if the defendant did not think that he would harm the official authority of the public

B. Determination on the assertion of unfair sentencing

The crime of this case is committed by the defendant with intent to cancel or reduce tax by disregarding the public official in charge of tax investigation, and demands and receives KRW 200 million as expenses for street funds or school expenses. It is likely that the public confidence in the tax official's performance of duties may be significantly damaged, and the amount received is heavy in light of the fact that the amount received is large.

However, in light of various circumstances that are favorable to the defendant, such as the fact that the defendant has no record of crime, the defendant received money from the tax officials in charge of the crime, and the defendant did not use the above money as rain funds or school expenses, and the fact that the defendant returned KRW 170 million out of KRW 200 million to the non-indicted 1 after the crime, the fact that he returned it to the non-indicted 1 after the crime can be considered as circumstances favorable to the defendant. In light of other circumstances that are conditions for the argument and the sentencing specified in the records of this case, such as the defendant's age, character and behavior, environment, motive, means and consequence of the crime, etc., the punishment imposed by the court below is too too unreasonable, and therefore there is a reason to discuss this part of the defendant's appeal.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the criminal facts and evidence against the defendant recognized by this court is the same as the corresponding column of the judgment of the court below, and this is cited in accordance with Article 369 of the Criminal Procedure Act.

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

Article 3 (Selection of Imprisonment with Labor)

1. Calculation of the number of detention days before sentencing of the judgment;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (Taking into account these circumstances in the Grounds for Destruction)

1. Confiscation;

Article 13 former part of the Aggravated Punishment Act

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

Judges Cho Ho-ho (Presiding Judge)

1) Article 81-4 (Right to Receive Assistance in Tax Investigation) Where a taxpayer undergoes an on-site investigation for taxation disposition prescribed by Presidential Decree, such as an investigation of an offence case, an investigation for determination or correction of income tax, corporate tax, and value-added tax, he/she may have an attorney-at-law, certified public accountant, certified tax accountant, or a person with expertise in taxation, who is prescribed by Presidential Decree, participate in

Note 2) As seen earlier, it stated that “I will delegate the authority to attend or state opinions in the investigation pursuant to the provisions of Article 81-4 of the Framework Act on National Taxes.”