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(영문) 서울고등법원 2018.07.12 2017노3711
특정범죄가중처벌등에관한법률위반(조세)등
Text

1. The part of the lower judgment against the Defendant (including the part not guilty of the grounds) shall be reversed.

Defendant shall be punished by imprisonment.

Reasons

1. Summary of grounds for appeal;

A. Defendant A, B, D, E, F, Defendant A, B, and F were explicitly withdrawn from the trial date of the first instance trial by the first instance trial of the first instance, as to the fact of tax evasion, receipt of tax invoice without real transactions, and embezzlement.

1) Defendant A and B: The use of part of Aluminium burners from misunderstanding the facts as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) with respect to Aluminium owned by E, or from misunderstanding the legal principles, F Co., Ltd. (hereinafter “F”) E (hereinafter “E”) for other products was originally acceptable between F and E.

B. As long as AF provides E with both the quantity agreed upon and the quality corresponding to the quality required by E in accordance with the purport of the clinical processing transaction entered into with E, F’s act cannot be deemed as contrary to the purport of the entrustment.

Therefore, the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) cannot be established in this part of the defendant A and B.

2) Defendant A, B, and F: The fact that Defendants A, B, and F were involved in the evasion of corporate tax due to concealment of Aluminium and Busan water free profit, violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) and violation of the Punishment of Tax Evaders Act, and misunderstanding of the legal principles on the settlement of accounts and payment of corporate tax, F did not fully reflect the storage and input of Aluminium but by-products, which were entered from E at the time of payment

Since F's gross income and deductible expenses are all omitted, it is not possible to establish additional corporate tax liability and corporate tax evasion based on this premise because F's total income from taxation is not changed.

3) Defendant A, B, D, and F: The lower court determined that Defendant A, B, and F were erroneous in misapprehending the legal principles on the F’s evasion of corporate tax, violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) or violation of the Punishment of Tax Evaders Act, due to an excessive appropriation of sales cost.

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