[1] Whether Article 11-2 (4) 3 of the former Punishment of Tax Evaders Act shall apply to the case where the total tax invoice by buyer stating false information on the supply price due to real transactions is submitted to the government (affirmative), and the number of crimes where false information is entered in one of the total tax invoice by buyer by buyer by multiple sales offices (=one crime)

[2] Whether the crime of issuing a tax invoice for non-transaction under Article 11-2 (4) of the former Punishment of Tax Evaders Act is established as one crime for each tax invoice (affirmative), and whether the same legal principle applies to cases of aggravated punishment under Article 8-2 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (negative)

[1] Article 11-2(1) and (4) (see current Article 10(3)) of the former Punishment of Tax Evaders Act (wholly amended by Act No. 9919, Jan. 1, 2010) / [2] Article 8-2 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (wholly amended by Act No. 9919, Jan. 1, 2010); Article 11-2(4) (see current Article 10(3)) of the former Punishment of Tax Evaders Act (wholly amended by Act No. 9919, Jan. 1, 2010)

[1] Supreme Court Decision 2008Do9634 Decided August 20, 2009 (Gong2009Ha, 1582) / [2] Supreme Court Decision 2006Do5147 Decided October 26, 2006 (Gong2006Ha, 2040) Supreme Court Decision 2007Do2076 Decided June 29, 2007 (Gong2007Do868 Decided January 14, 2010)

Defendant 1 and six others

Defendants

Attorneys Kim Jong-chul et al.

Daejeon High Court Decision 2009No250 decided December 18, 2009

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal by Defendant 1, 2, and 7

Article 11-2(1) of the former Punishment of Tax Evaders Act (wholly amended by Act No. 919, Jan. 1, 2010; hereinafter the same) provides that “Where a person liable to prepare and deliver a tax invoice under the provisions of the Value-Added Tax Act and a person liable to submit a tax invoice to the Government fails to deliver a tax invoice by false entry or a false entry of a tax invoice by buyer, and where a tax invoice by false entry is submitted by buyer,” and Article 11-2(4)1 and 3 of the same Act provides that “an act of issuing or receiving a tax invoice under the provisions of the Value-Added Tax Act without supplying goods or services under the provisions of the Value-Adde

In full view of the contents, legislative intent, significance, function, etc. of the total tax invoice by buyer, where there is no real transaction equivalent to the supply price in each seller listed in the above list of total tax invoices, or where the whole list of total tax invoices entered falsely is submitted to the Government even if a certain real transaction exists, unlike the case where the individual tax invoice constituting the above list of total tax invoices is entered falsely, the act of falsely entering the processed or false part of the total supply price constitutes “the act of submitting a false statement by falsely entering the list of total tax invoices under the Value-Added Tax Act without supplying goods or services under the Value-Added Tax Act” under Article 11-2(4)3 of the former Punishment of Tax Evaders Act, and this constitutes “the act of submitting a false statement by falsely entering the total supply price by buyer under the Value-Added Tax Act without supplying goods or services under the Value-Added Tax Act, and even if each false statement is submitted to the Government as a whole, the crime of violating one Punishment of Tax Evaders (Violation of Duty to Issue the tax invoice) is established (see Supreme Court Decision 2008Do

Meanwhile, according to Article 8-2 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 9919, Jan. 1, 2010; hereinafter “former Aggravated Punishment Act”), a person who commits a crime under Article 11-2 (4) of the Punishment of Tax Evaders Act for the purpose of profit-making is subject to aggravated punishment based on the total amount of the value of supply entered in the tax invoice and invoice, or on the total amount of the value of supply, sale, and purchase entered in the list of total tax invoices or the list of total tax invoices by buyer or the list of total tax invoices by buyer. The crime of issuing the non-transaction tax invoice under Article 11-2 (4) of the former Punishment of Tax Evaders Act is established for each tax invoice (see, e.g., Supreme Court Decision 2006Do5147, Oct. 26, 206).

In light of the above legal principles and records, the judgment of the court below that punished the above defendants by applying Article 8-2 of the former Aggravated Punishment Act and Article 11-2 (4) 3 of the former Punishment of Tax Evaders Act to the above defendants is inconsistent with the above legal principles, but it is not possible to disadvantageously change to the defendants in this case, which only the defendants appealed, so this part of the judgment of the court below is just and maintained, and there is no violation of law by misunderstanding the legal principles that affected the conclusion of the judgment.

The remaining grounds of appeal by the above Defendants are purporting to justify the selection of evidence and fact-finding, which belong to the exclusive jurisdiction of the lower court, and the reasoning of the lower judgment and the grounds of appeal do not seem to have been justifiable grounds of appeal since they do not seem to fall under the violation of statutes beyond the bounds of the principle of free evaluation of evidence.

2. As to Defendant 3’s ground of appeal

Where the defendant appealed from the judgment of the court of first instance on the sole ground of unfair sentencing as the grounds of appeal, and the court below reversed the judgment of the court of first instance and sentenced a minor punishment, the defendant cannot be deemed as the grounds of appeal for misconception of facts or misapprehension of legal principles against the judgment of the court of first instance (see, e.g., Supreme Court Decision 2005Do3244, Sept. 9, 2005). Thus, the above defendant's assertion that the judgment of the court of first instance

In addition, in this case where death penalty, life imprisonment, or imprisonment with or without prison labor for more than ten years has been imposed, the reason that the amount of punishment is unreasonable is not a legitimate ground for appeal.

Meanwhile, according to the records, the above defendant issued 15 billion won false tax invoices from April 2006 to July 1 of the same year under the name of non-indicted 1 corporation, and issued 7.49,793,745 won in total under the name of non-indicted 2 corporation on April 2006, and received 50 million won in total, and submitted 4.5 billion won in total and 81,142,30 won in total when filing a return of value-added tax for the first period of July 2006 to 11 business parties and submitted 4.5 billion won in total and 4.5 billion won in supply value to the non-indicted 208,90,261 (combined), and the above judgment cannot be seen as being delivered with 3.7 billion won in total under the premise that the above judgment should be delivered with 3.5 billion won in total and 4.7 billion won in the facts charged.

3. As to the grounds of appeal by Defendant 4, 5, and 6

In a case where a court recognizes a minor criminal facts within the scope recognized as identical to the facts charged, if it does not give substantial disadvantage to the defendant's defense in light of the progress of the trial, etc., it may recognize a minor criminal facts ex officio without changing the indictment (see Supreme Court Decision 95Do456 delivered on September 29, 195, etc.).

According to the above legal principles, in this case, Defendant 4 asserted to the effect that he should be punished as a co-principal not a co-principal in the trial process of the court below, the court below is just in holding that the above defendant's crime of this case which was prosecuted as a co-principal constitutes an act of aiding and abetting ex officio without changing the indictment procedure, and there is no error of law by misunderstanding

Meanwhile, under Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the ground of unfair sentencing is allowed only for a case on which death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. Thus, in this case where Defendant 5 has been sentenced to a minor sentence, the reason that the determination of punishment is unreasonable is not a legitimate ground for appeal

The remaining grounds of appeal by the above Defendants are purporting to justify the selection of evidence and fact-finding, which belong to the exclusive jurisdiction of the lower court, and the reasoning of the lower judgment and the grounds of appeal do not seem to have been justifiable grounds of appeal since they do not seem to fall under the violation of statutes beyond the bounds of the principle of free evaluation of evidence.

4. Conclusion

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

Justices Min Il-young (Presiding Justice)