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The judgment below
The guilty portion shall be reversed.
A defendant shall be punished by imprisonment for not more than ten months.
provided that this ruling has become final and conclusive.
Reasons
1. Summary of grounds for appeal;
A. According to the evidence submitted by the prosecutor (the factual error), the court below found the defendant not guilty of this part of the facts charged, even though the defendant did not supply clothing to D, but delivered false sales tax invoices. The court below erred in the misapprehension of the facts and adversely affected the conclusion of the judgment.
B. The Defendant (unfair punishment)’s imprisonment (ten months of imprisonment, two years of suspended sentence, and one hundred and sixty hours of community service) is too unreasonable.
2. Determination
A. We examine ex officio prior to the judgment on the grounds for appeal for ex officio determination.
On December 13, 2011, the lower court applied Article 10(3)1 of the Punishment of Tax Evaders Act to the Defendant’s issuance of one copy of the sales tax invoice in an amount equivalent to KRW 1.29 billion to J, a corporation, and to the receipt of one copy of the purchase tax invoice in an amount equivalent to KRW 99,487,00 from J, a corporation around December 15, 2011.
However, in cases where a person liable to issue a tax invoice issues a tax invoice with false entries, such as overstating the value of supply in the course of supplying goods, etc., such an act constitutes an offense of issuing a tax invoice with false entries under Article 10(1)1 of the same Act, and where a person liable to receive a tax invoice is issued a tax invoice with false entries, such as overstating the value of supply in collusion with the supplier when the goods or services are supplied, such act constitutes an offense of issuing a tax invoice with false entries under Article 10(2)1 of the same Act.
According to the evidence duly admitted and examined by the lower court, the Defendant supplied J. 1, 200 million won to supply 410 million won to the Co., Ltd. around December 13, 201, and issued one copy of the sales tax invoice equivalent to KRW 1,290,000,000 to the supply value. On December 15, 201, the Defendant issued one copy of the sales tax invoice equivalent to KRW 1,290,000,000.