[1] The timing of corporate tax evasion and VAT evasion violation and the meaning of "annual evasion tax amount, etc." under Article 8 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes

[2] The case holding that Article 8 (1) of the Act on Aggravated Punishment, etc. of Specific Crimes cannot be punished for a violation of Article 8 (1) of the Act on Aggravated Punishment, etc. of Specific Crimes

[1] Article 9-3 of the Punishment of Tax Evaders Act provides that the time when an act of tax evasion under the provisions of Article 9 of the same Act was committed shall be when the time when the time limit for payment expires after the Government's decision or review on the tax base of the pertinent tax item is made in case of taxes imposed and collected by the taxpayer's report, and in case of taxes not corresponding to this, when the time limit for payment expires. Thus, the act of tax evasion of corporate tax on income for each business year of a domestic corporation under Articles 60 (1) and 64 (1) of the Corporate Tax Act refers to the act of tax evasion under Articles 3 (1) and 19 of the Value-Added Tax Act until the time when 3 months elapse from the end of each business year. The act of tax evasion of value-added tax has been committed from January 1, 30 and June 30, 200 until the end of each taxable period from July 1, 200 to December 31, 200).

[2] The case holding that among the value-added tax for the year 196 of the defendant corporation's 196 of the value-added tax (from January 1, 1996 to June 30 of the same year), the value-added tax evasion for the second term portion (from July 1, 1996 to December 31 of the same year) has reached each maturity after the lapse of January 25, 1997, which is the time limit for report and payment, and that the defendant corporation's corporate tax evasion for the year 1996 has reached the expiration of March 31, 197, which is the time limit for report and payment, separate crimes for the second term portion from the first term portion of the value-added tax for the year 196, and the first term portion of the value-added tax for the year 196 can not be punished for the violation of Article 19 of the Act on the Aggravated Punishment, etc. of Specific Crimes since the first term portion of the value-added tax for the year 196.

[1] Articles 9 and 9-3 of the Punishment of Tax Evaders Act, Articles 60(1) and 64(1) of the Corporate Tax Act, Articles 3(1) and 19(1) of the Value-Added Tax Act, Article 8(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes / [2] Articles 3(1), 19(1), 60(1), and 64(1) of the Value-Added Tax Act, Article 8(1) of the Aggravated Punishment, etc. of Specific Crimes Act

[1] Supreme Court en banc Decision 99Do3822 delivered on April 20, 200 (Gong2000Sang, 1225)

Defendant 1 and two others

Defendants

Law Firm Barun Law Office et al.

Gwangju High Court Decision 99No18 delivered on January 28, 2000

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

We examine the grounds of appeal.

1. As to the abuse of power to prosecute and admissibility of evidence

In light of the records, the court below's decision that rejected all the defendants' arguments that the prosecution of this case constitutes abuse of the power to prosecute and that there is no evidence of witness statement or suspect interrogation protocol, is just, and there is no error of misunderstanding legal principles as alleged in the grounds of appeal. The ground of appeal

2. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against Defendant 1 and 2 and the fabrication of private documents, and the uttering thereof

In light of the records, the decision of the court below that found the above defendants guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the forgery of private documents, and the above events based on the evidence duly admitted by the court of first instance after the confession of the above defendants and the evidence duly admitted by the court of first instance is just, and there is no violation of the rules of evidence as alleged in the grounds of appeal

3. On the violation of each of the Punishment of Tax Evaderss Act against Defendants 1 and 2, and on the violation of each of the Punishment of Tax Evaders Act by Defendant Samo General Construction Company

In light of the records, the court below's decision that found the defendants 1 and 2 guilty of violating the Punishment of Tax Evaders Act and each violation of the Punishment of Tax Evaders Act against the defendants 1 and 2 based on the evidence duly adopted by the court of first instance after the examination of evidence is just, and there is no violation of the rules of evidence against the rules of evidence as alleged in the grounds of appeal. The grounds of appeal on this point are without merit.

4. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Taxes) against Defendant 1 and 2, and the violation of the Punishment of Tax Evaders Act by Defendant Samo General Construction

On March 31, 1997, the lower court affirmed the first instance judgment convicting Defendant 1 and 2 of the tax evasion amounting to KRW 445,100,390 by failing to report and pay KRW 384,191,30 and value-added tax amounting to KRW 60,90,09,090 for corporate tax for the year 196, and convicted Defendant 1 and 2 by applying Article 8(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Articles 3 and 9(1)3 of the Punishment of Tax Evaders Act for Defendant 3 and 9(1)3 of the Act on the Aggravated Punishment, etc. of Specific Crimes.

However, we cannot accept the above fact-finding and decision of the court below.

Article 9-3 of the Punishment of Tax Evaders Act provides that the time when an act of tax evasion prescribed in Article 9 of the same Act occurs shall be when the time limit for payment expires after the Government makes a decision or makes a decision on the tax base of the relevant tax item in cases of taxes imposed and collected by the taxpayer's report, and in cases of taxes not corresponding to this time limit for payment, when the relevant tax return and payment period expires. Thus, an act of tax evasion of a domestic corporation for each business year constitutes an act of tax evasion of corporate tax under Articles 60 (1) and 64 (1) of the Corporate Tax Act until the expiration of three months after the end of each business year under Articles 60 (1) and 64 (1) of the same Act. The act of tax evasion of value-added tax is until the expiration of three months after the end of each business year under Articles 3 (1) and 19 of the Value-Added Tax Act. The act of tax evasion means the sum of the amount of tax evasion by 25 days after the end of each taxable period from 1.20 days to 30 days.

Therefore, in this case, the first term portion (from January 1, 1996 to June 30 of the same year) of value-added tax in the 1996 pro rata Construction Co., Ltd. among the value-added tax in the year of 196 shall have passed on July 25, 1996, and the second term portion (from July 1, 1996 to December 31 of the same year) shall have passed on January 25, 1997, which is the report and payment deadline, and the second term portion (from December 1, 1996 to December 31 of the same year) shall have reached each period after the lapse of January 25, 197, which is the report and payment deadline, and the first term portion of corporate tax in the year of 196 shall have reached the number of years after the lapse of March 31, 197, which is the date of report and payment deadline. Thus, the first term portion of value-added tax in the year of 196 years shall be separate from value-added tax for the year.

Nevertheless, by March 31, 1997, the court below affirmed the judgment of the court of first instance that found Defendant Sameo General Construction Corporation's failure to report and pay corporate tax and value-added tax for the year 1996 and found Defendant Sameo General Construction Corporation guilty by applying Article 8 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes. This part of the judgment below is erroneous in the misapprehension of legal principles as to the number of crimes of evading value-added tax, the timing of the occurrence thereof, and the annual amount of tax evaded under Article 8 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and erroneous recognition of facts.

5. As to the status and role of Defendant 2

In light of the records, the decision of the court below which recognized the fact that Defendant 2 committed each of the crimes of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), forging and uttering private documents, and tax evasion in collusion with Defendant 1 as the chief of the management department of the Sameo General Construction Co., Ltd., is just, and there is no error in violation of the rules of evidence as alleged in the grounds of appeal.

6. Accordingly, the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) against Defendant 1 and 2 in the judgment below and the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) against Defendant 1 and 2 in 1996 against Defendant Sameo integrated Construction Co., Ltd. should be reversed in an unlawful manner. Since the part on the reversal is in a concurrent crime under the former part of Article 37 of the Criminal Act with the remainder of the judgment below against the Defendants, the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) and the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes against Defendant 1 and 2 in the judgment below is in a concurrent crime under

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Seo-sung (Presiding Justice)