Defendant

Defendant

Newly Inserted by Presidential Decree No. 2010, Dec. 1, 201>

Attorney Lee Lee-soo

Jeju District Court Decision 201Da487 Decided December 6, 2012

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

The Defendant only recovered money on the basis of the loan certificate and passbook and did not prepare separate account books, and there was no destruction or concealment of account books, and thus, the Defendant did not evade taxes by “Fraud or other unlawful act.”

2. Determination:

A. Summary of the facts charged in this case

The Defendant is a person who engages in credit business in the name of “○○ Apartment 303 located in the Jeju City ( Address omitted)” and “△△△△△△.”

From January 1, 2005 to December 31, 2005, the Defendant had interest income of KRW 47,740,907, while running a credit business at the above place, etc. during the above period, and thus, the Defendant reported this to the competent tax office, despite the fact that some income was reported, in the case of partial income, the account book was not intentionally prepared, and in the case of partial income, the account book was reversed, and in the case of partial income, the Defendant failed to report it to the competent tax office as if there was no interest income by concealing account books. After the lapse of the reporting and payment period on June 1, 2006, the Defendant evaded global income tax of KRW 4,483,560 from that time to May 31, 2010, as well as tax evasion of KRW 4,483,567,758,756,758,756,75,758,74,75,757,75,75,7,7,516,7

B. Determination

Article 3(1) of the Punishment of Tax Evaders Act (wholly amended by Act No. 9919, Jan. 1, 2010; hereinafter the same shall apply) refers to an act that enables the evasion of tax, such as fraud and other unlawful act, which is recognized as unlawful by social norms, i.e., an act that makes it impossible or considerably difficult to impose and collect taxes, and other affirmative act that is deemed unlawful by social norms. Thus, it does not constitute mere failure to file a tax return or making a false tax return without accompanying any other act (see, e.g., Supreme Court Decision 2010Do1345, Mar. 24, 201).

According to the records, the defendant, while running the bond business, collected the loan by calculating the interest on the basis of the loan certificate or the particulars stated in the passbook received from the debtor, and stated the loan details on the simple mail, but only can it be known that the defendant had operated the loan by returning the loan certificate or the note received by check and destroying the note. In addition, there is no evidence that the defendant actively concealed or discarded the account books related to the credit business beyond the unreported report or false report, and there is no evidence that the defendant actively concealed or discarded the relevant documents even in relation to the lease profits. Thus, the defendant cannot be found guilty of the charge of this case that the defendant evaded the tax by the "Fraud or other unlawful act".

3. Conclusion

Therefore, 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 after pleading.

The facts charged in this case are without proof of crime as stated in paragraph (2), and the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

[Attachment]

Judges Choi Nam-sik (Presiding Judge)