[1] Requirements for establishing a blanket crime of violation of Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes against each violation of Article 10(3) of the Punishment of Tax Evaders Act

[2] Criteria for determining whether to permit amendments to Bill of Indictment in a single comprehensive crime

[3] In a case where a public prosecutor's application for changes in indictment does not impair the identity of the facts charged under the interpretation of Article 298 (1) of the Criminal Procedure Act, whether the court shall grant permission (affirmative)

[1] In light of Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides a statutory penalty by combining with the violation of Article 10(3) of the Punishment of Tax Evaders Act by stipulating the reason that the sum of the supply values entered in the purpose of profit-making and the tax invoice and the invoice, or the supply values or the purchase values entered in the list of the total tax invoices and the total tax invoices (hereinafter “supply values, etc.”) is above a certain amount, and setting the statutory penalty according to the sum of the supply values, etc., upon which each violation of Article 10(3) of the Punishment of Tax Evaders Act continues to be committed for a specified period under the criminal intent of a single and continuous crime committed for profit-making purposes, and there is a correlation between the act and the method of crime, and if the sum of supply values, etc. entered in the document corresponding to the act is set out in the above Article, the crime of violation of Article 8-2(1) of

[2] In light of the fact that the withdrawal of the previous facts charged through the amendment of a bill of indictment and the addition of the new facts charged are possible, it focuses on whether the revised facts charged are included in the scope of a single comprehensive crime, i.e., where the same crime is committed repeatedly under the single and continuous criminal intent, rather than considering the identity of the previous facts charged by each individual facts constituting the single comprehensive crime, and whether the damage legal interests are the same.

[3] According to the provisions of Article 298(1) of the Criminal Procedure Act, since "the prosecutor may add, delete, or change charges or applicable provisions of Acts stated in the indictment with permission of the court," and "the court shall permit them to the extent that it does not harm the identity of the facts charged," the purport of the above provision is that the public prosecutor's application for changes in indictment should be interpreted to mean that the court shall permit it unless it damages the identity of the facts charged.

[1] Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 10(3) of the Punishment of Tax Evaders Act, and Article 37 of the Criminal Act / [2] Article 298(1) of the Criminal Procedure Act, Article 37 of the Criminal Act / [3] Article 298(1)

[1] Supreme Court Decision 2015Do2207 Decided June 23, 2015 (Gong2015Ha, 1105) / [2] Supreme Court Decision 2006Do514 Decided April 27, 2006 (Gong2006Sang, 988) / [3] Supreme Court Decision 98Do1438 Decided May 14, 199 (Gong199Sang, 1211)

Defendant

Prosecutor

Attorney Kim Young-chul

Supreme Court Decision 2017Do12650 Decided December 28, 2017

Seoul High Court Decision 2018No68 decided May 31, 2018

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

The grounds of appeal are examined.

1. A. Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “instant legal provision”) provides that a person who commits a crime under Article 10(3) and the former part of Article 10(4) of the Punishment of Tax Evaders Act for profit shall be punished by imprisonment for a limited term of not less than three years where the sum of the value of supply entered in the tax invoice and the invoice, or of the value of supply, sale, purchase, or purchase entered in the list of the total tax invoice and the invoice, exceeds five billion won (hereinafter “supply value, etc.”), and that a person shall be punished by imprisonment for a limited term of not less than one year if the sum of supply value, etc. is more than three billion won but less than five billion won

In light of the legal provisions of this case, the legal provisions of this case can be assessed as a violation of one of the legal provisions of this case, such as where each violation of Article 10(3) of the Punishment of Tax Evaders Act continues to be committed for a certain period under the criminal intent, continuous and continuous criminal conduct for profit-making purposes, and the identity between the methods of committing the act is recognized, and where the sum of the supply value, etc. stated in the document falling under the act is the sum of the amount stipulated in the legal provisions of this case, the crime of violation of Article 10(3) of the Punishment of Tax Evaders Act can be established, including the act (see Supreme Court Decision 2015Do2207, Jun. 23, 2015).

B. In light of the fact that the withdrawal of the previous facts charged through the amendment of a bill of indictment and the addition of the new facts charged are possible, the comprehensive crime focuses on whether the modified facts charged are included in the scope of comprehensive crimes, namely, where the same kind of crime is repeatedly committed under the criminal intent of a single and continuous criminal intent, rather than on whether it is identical to the previous facts charged (Supreme Court Decision 2006Do514 Decided April 27, 2006).

C. According to the provisions of Article 298(1) of the Criminal Procedure Act, the prosecutor may add, delete, or change charges or applicable provisions of Acts stated in the indictment with permission of the court," and the purport of the above provision is that "the court shall permit them to the extent that it does not harm the identity of the facts charged." Thus, the above provision should be interpreted that the court should permit it unless the public prosecutor's application for modification of indictment does not harm the identity of the facts charged (see Supreme Court Decision 98Do1438 delivered on May 14, 199, etc.).

2. After remanding the case, the lower court rejected the prosecutor’s application for modification of the indictment to add the receipt of each false electronic tax invoice, which caused the receipt of the total tax invoice by customer (excluding the portion which was judged not guilty on the ground that there was no evidence that it was false transaction in the lower court prior to the return of the total tax invoice by customer, which was 6.4 billion won or more in total, from January 2012 to February 2013, and rejected the prosecutor’s application for modification of the indictment to the effect that the previous facts charged are withdrawn, and found the first instance judgment reversed according to the purport of the reversal

3. However, in light of the legal principles as seen earlier, the facts charged by the prosecutor requesting the amendment of a bill of indictment include the act of receiving each false electronic tax invoice, which is the cause of the instant facts charged, and it is sufficient to consider that the act constitutes one crime, comprehensively since it can be assessed as a violation of the legal provisions of this case, such as the fact charged in this case and the crime committed continuously for a certain period under the single and continuous criminal intent for profit-making purposes, and the act can be evaluated as identical between the method of crime and the method of crime. In addition, it should not be considered whether the facts charged prior to the amendment is guilty or not at the time of the decision on whether to permit the amendment of a bill of indictment. Accordingly, even after the remand of the case, the decision

4. Therefore, it is obvious that the court below erred by misapprehending the legal principles as to comprehensive crimes and Amendments to Bill of Indictment, which the court below did not permit the prosecutor's amendments to Bill of Indictment after remand, and that such errors affected the conclusion

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)