Defendant

Defendant

Demotion (prosecution), completion ceiling (public trial)

Law Firm Au, Attorney Kim Jong-soo

Seoul Western District Court Decision 2013 High Court Decision 2282 Decided January 13, 2015

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 1,500,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

1) Inasmuch as the Certified Tax Accountant Act, as in the Attorney-at-Law Act or the Certified Tax Accountants Act, punishment for an act without qualification should be premised on a quid pro quo relationship. Thus, the act of a tax agent by a non-qualified person should be interpreted as punishing only when it is conducted as a business or for profit-making purposes. However, the Defendant did not receive any fee for the act of aiding members to report value-added tax

2) The president of the ○○○○ Branch Co., Ltd. (hereinafter “the branch of this case”) to which the Defendant was assigned is merely an honorary position, and the Defendant was not actually involved in the decision-making of the branch of this case, and in particular, did not instruct or take part in the instant tax agent act.

3) The Defendant did not receive any remuneration due to the instant tax agent act, and actually tried to file a value-added tax return for a petty merchant. The method is that, with the help of an advisory tax accountant who duly concluded a tax agent contract with the instant branch association, the Defendant attempted to file a value-added tax return by its members. As such, it is a justifiable act that does not violate social rules and thus, the illegality is excluded.

4) Members of the instant branch association, as many individuals with a small scale of business, have low ratio of voluntary declarations within the reporting period, and the ○○○○ Tax Office, which is the competent tax office, explicitly requested the instant branch association to provide tax guidance to its members. The Defendant, upon the official request of the competent tax office, believed that the instant tax agent’s act was not illegal, and justifiable reasons exist in the belief that such act was not illegal.

5) For the foregoing reasons, the court below found the Defendant guilty on the charges of this case, which erred by misapprehending the facts or by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The sentence of the lower court (a fine of three million won) is too unreasonable.

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

A. Determination as to the assertion that the Certified Tax Accountant was not in violation of the Certified Tax Accountant Act

Article 22(1)1 of the Certified Tax Accountant Act only prescribes that “a person who provides tax agent services without being qualified as a certified tax accountant” shall be punished, and such tax agent services shall not be required to be engaged in a business or for profit-making. In order to establish expertise in the field of duty and maintain the qualification system determined by the State, a quid pro quo relationship is not required in punishing an act without qualification (e.g., Article 27(1) of the Medical Service Act), and Article 22(1)1 of the Certified Tax Accountant Act does not have any special reason to interpret Article 22(1)1 of the same Act only as the Defendant claims

B. Determination as to the Defendant’s assertion that the Defendant did not direct or participated in the instant tax agent service act

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., ① the defendant was affixed and sealed as the branch president at the time when the branch of this case enters into a tax advisory contract with Nonindicted 2 and Nonindicted 3, the tax accountant, ② the defendant, since the branch of this case entered into an advisory contract with the tax accountant, the defendant stated in the investigative agency that employees of the branch of this case make and electronically reported value-added tax returns for their members in practice, ③ the defendant has the substantial right to decide the conclusion of the contract with the tax accountant as well as the defendant, and ④ the defendant received prior or ex post reports, ④ the branch of this case stated that the branch of this case would have reported the tax return in good faith to the employees of the branch of this case, and reported the final approval of the number of tax returns. Accordingly, the defendant's assertion is without merit.

C. Determination on the assertion of justifiable acts

"Acts which do not violate social norms" under Article 20 of the Criminal Code refers to acts which can be accepted in light of the overall spirit of legal order or the social ethics or social norms, and which act is legitimate in violation of social norms, and the illegality of which act is excluded should be determined individually and reasonably under specific circumstances. Thus, in order to recognize such legitimate acts, the following requirements should be met: legitimacy of the motive or purpose of the act; reasonableness of the means or method of the act; third, the balance between the protected interests and the infringed interests; fourth, urgency; fifth, the absence of any means or method other than the act (see Supreme Court Decision 2002Do5077 delivered on December 26, 2002).

However, the motive or purpose of this case’s tax agent service for small merchants, who are members of the branch of this case, rather than for any consideration by the defendant, may be deemed justifiable. However, the defendant was able to assist its members to provide tax agent service by providing guidance and guidance on value-added tax return, or by connecting tax accountants who are lawful with its members. Nevertheless, as the defendant directly provided tax agent service without qualification, the defendant did not meet the requirements such as reasonableness or supplement of the method. Thus, there is no urgent circumstance that the defendant or the employees of the branch of this case, who did not have the qualification for the instant tax agent service, should be the employees of the branch of this case. The above argument by the defendant is groundless.

D. Determination on the assertion that there was no perception of illegality

Article 16 of the Criminal Act provides that an act of misunderstanding that one's own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there are justifiable grounds for misunderstanding. However, it is generally accepted that his act constitutes a crime, but it does not constitute a crime under the Acts and subordinate statutes in his own special circumstances, and if there are justifiable grounds for misunderstanding, it shall not be punishable. Whether there exists a justifiable reason shall be determined depending on whether the act of misunderstanding is not aware of the illegality of his own act as a result of misunderstanding, even though it was possible to recognize the illegality of his own act if the act was done with his intellectual ability, and there was a chance that the act of misunderstanding would have been able to judge or inquire about the possibility of illegality of his own act, and the degree of efforts necessary for recognizing the illegality should be determined differently depending on the situation of the act, the identity of the actor, and the social group to which the actor belongs (see Supreme Court Decision 2007Do7205, Nov. 16, 2007).

However, according to the evidence duly adopted at the court below, since ○○○ Tax Office, which is the competent tax office, was less than the voluntary payment rate of value-added tax for food industry through the instant branch conference around 2008, it is recognized that the members sought cooperation on promotion and guidance so that the final tax return can be made within the reporting deadline. However, ○○○ Tax Office merely requested the instant branch association to publicize and provide guidance on the value-added tax return, and it cannot be deemed that the instant branch association directly requested the cooperation on the tax agent business. It is difficult to view that the Defendant was well aware of the illegality possibility of the instant tax agent business act, or made efforts to avoid illegality. Ultimately, even if the Defendant was unaware of the establishment of a violation of the Certified Tax Accountant Act as to the instant tax agent business act, this constitutes a mere site under the law, and it does not constitute a false mistake, and thus, it cannot be said that there is no justifiable ground for the Defendant’s assertion that it did not constitute a mistake due to such mistake.

3. Judgment on the assertion of unfair sentencing

The Defendant’s denial of the instant crime is an element of sentencing unfavorable to the Defendant. However, considering the following factors: (a) the Defendant was the primary offender; (b) the Defendant appears to have provided the instant tax agent services for the purpose of aiding and abetting the Plaintiff’s report of value-added tax by its members; and (c) there is no circumstance in which the Plaintiff received special remuneration from its members, etc., the sentencing factors favorable to the Defendant and all other sentencing factors indicated in the instant argument, including the Defendant’s age, character, character, environment, and circumstances after the instant crime, etc., the sentencing of the lower court against the Defendant is somewhat unreasonable.

4. 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 facts constituting the crime recognized by this court and the evidence thereof are as stated in the judgment of the court below, with the exception that "the tax agent conducted the final return of each value-added tax by entering the final return of each value-added tax," and that "the final return of each value-added tax was entered," and "the tax accountant was connected to the above program under the name of "non-party 2", and approximately 1,000 members belonging to the ○○○○○○○ Association by accessing the above program using the authorized certificate, and approximately 1,000 members belonging to the above program, and made a tax agent conduct the final return of value-added tax by entering the final return of value-added tax in accordance with Article 369 of the Criminal Procedure Act" are as stated in each corresponding column of the judgment of the court below.

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

Certified Tax Accountant Act Article 22(1)1 (Generally, Selection of Fines)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judge Park Jong-dae (Presiding Judge)