Whether it is necessary to file a criminal charge of tax evasion falling under the Act on the Aggravated Punishment, etc. of Specific Crimes

A person who commits a crime falling under Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes shall not be prosecuted pursuant to Article 16 of the same Act.

Article 16 of the Aggravated Punishment Act

Defendant 1 and one other

Prosecutor and Defendants

Daegu District Court of First Instance (76 High Court Decision 296)

The judgment of the court below is reversed.

Defendant 2 shall be punished by imprisonment for two years, and imprisonment for two years and six months, respectively.

The number of detention days prior to the pronouncement of the judgment of the court below shall be 85 days including the penalty.

However, the execution of the above imprisonment shall be suspended for four years from the date of the final decision.

The sentence of a fine against Defendant 2 shall be suspended.

A sum of KRW 1 million shall be collected from Defendant 1.

To issue an order for the provisional payment of the amount equivalent to the above additional collection.

The gist of the prosecutor's appeal is that, in light of the nature of the crime committed by the defendant 2, the original judgment against the defendant is too unfasible and unfair, and the summary of the grounds for appeal by the defendant 2 is not a donee, since the defendant 2 is not a donor under the Inheritance Tax Act at the time of this case, so realizing the gift tax did not occur, and even if there is no legitimate accusation against the defendant, it is clear that the defendant is not guilty, and even if the defendant is responsible for evading gift tax, the amount of gift tax is more than 1,49,00 won, and it is clear that the amount of gift tax would not be subject to Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes because the defendant's statement was made by the court below 10,000 won and the amount of gift tax would not be subject to the above 60,000 won, and the court below's decision that the defendant's remaining amount of gift tax would not be subject to the above 1,975,0000 won.

However, as to the sentencing of the Defendant, etc., Defendant 2 was the first offense, and Defendant 2 was trying to hand his property to his children, and caused this case’s offense, and the amount equivalent to gift tax has already been divided into the tax authorities, and the amount equivalent to gift tax has already been voluntarily deposited to the tax authorities. Defendant 1, as the first offender, led to the confession of this case from the beginning and the mistake was divided, and was removed from the public office due to the instant case’s removal. In light of the above circumstances and all other circumstances of this case’s offense indicated in the records, the lower court’s sentencing against the Defendant, etc. is deemed unfair.

Therefore, the prosecutor's appeal shall be dismissed without merit, but since each appeal by the defendants is well-grounded, the judgment of the court below against the defendant, etc. shall be reversed and it shall be ruled again in accordance with Article 364 (6) of the Criminal Procedure

Article 8 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that a person shall be punished by imprisonment with prison labor for not less than 19,750,00 won among the facts stated in the judgment on the crime; Article 8 (1) 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that a person shall be punished by imprisonment with prison labor for not less than 18,946,00 won; Article 8 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that a person shall be punished by imprisonment with prison labor for not more than 5 years; Article 8 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 9 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that a person shall be punished by imprisonment with prison labor for not more than 5 years; Article 6 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes shall be punished by imprisonment with prison labor for not more than 5 years; Article 13 (2) of the Act on the Aggravated Punishment.

It is so decided as per Disposition.

Judge Choi Jae-ho (Presiding Judge)