In cases where a person who supplies or is supplied with goods, etc. has issued a tax invoice stating a third party as a person who supplies or has not been supplied with it through business registration of a third party, or where a third party has received a tax invoice stating the third party as a person who is supplied with the goods, etc., or where a list of tax invoices concerning the supply of goods, etc. is prepared and submitted to the Government under the third party’s name, whether it may be a single criminal offense under Article 11-2 (4) 1 and 3

In full view of the contents and legislative purport of Article 11-2(4)1 and 3 of the former Punishment of Tax Evaders Act (wholly amended by Act No. 919, Jan. 1, 2010; hereinafter the same), Article 11-2(4)1 of the same Act refers to an act where a person who does not supply goods or services (hereinafter “goods, etc.”) issues a tax invoice stating that he/she is the supplier, or the person who does not receive the goods, etc. receives the tax invoice entered in his/her name. Article 11-2(4)1 of the same Act refers to an act of falsely preparing and submitting a list of tax invoices concerning the supply of goods, etc. to the Government by a person who supplies or is not supplied with the goods, etc., and Article 11-2(3)3 of the same Act refers to an act of supplying or being supplied with the goods, etc. by a third party with a tax invoice entered in his/her business registration with a third party, or a third party prepared and submitted a list of total tax invoices in his/her name to the Government.

Articles 30 and 32 of the Criminal Act; Article 11-2(4)1 and 3 of the former Punishment of Tax Evaders Act (wholly amended by Act No. 9919, Jan. 1, 2010) (see current Article 10(3)1 and 3)

Defendant

Defendant

Seoul Eastern District Court Decision 2010No1106 decided October 1, 2010

The judgment of the court below is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.

The grounds of appeal are examined.

1. Article 11-2(4) of the former Punishment of Tax Evaders Act (wholly amended by Act No. 9919, Jan. 1, 2010; hereinafter the same) provides punishment for “the act of issuing or receiving the tax invoice under the Value-Added Tax Act without supplying the goods or services under the Value-Added Tax Act ( Subparagraph 1) and “the act of falsely entering the list of the total tax invoices by seller and by seller under the Value-Added Tax Act without supplying the goods or services under the Value-Added Tax Act, and submitting them to the Government” ( Subparagraph 3).

In full view of the contents and legislative purport of the above provisions, Article 11-2 (4) 1 of the former Punishment of Tax Evaders Act provides that a person who does not supply goods or services (hereinafter “goods, etc.”) issues a tax invoice stating a person who does not receive the goods, etc., or who does not receive the goods, etc., shall be subject to the act of falsely preparing and submitting a list of tax invoices concerning the supply of the goods, etc. to the Government. However, Article 11-2 (4) 3 of the former Punishment of Tax Evaders Act provides that a person who supplies or does not receive the goods, etc., shall be subject to the act of supplying a false list of tax invoices stating a third party as to the supply of the goods, etc., upon delegation by the third party, and a third party issues or submits a tax invoice stating a list of tax invoices concerning the supply of the goods, etc., in the name of the third party, the third party may be deemed to have prepared and submitted a list of tax invoices and a list of tax invoices to the Government, so long as the person does not receive or provide the goods, etc.

2. Based on its adopted evidence, the court below affirmed the judgment of the court of first instance which convicted the charges of this case as to the same purport, on the following grounds: (a) the defendant, while making a trade in clothing processing with Nonindicted Co. 1, Nonindicted Co. 2, and Nonindicted Co. 3, without registration of business, issued a tax invoice stating as if he engaged in the trade; and (b) prepared a list of total tax invoices by individual purchaser; and (c) the defendant issued or received tax invoices indicating that Nonindicted Co. 4 supplied or received his clothes even though he did not receive the clothing; and (d) prepared and submitted a list of total tax invoices to the government, regardless of whether he consented to Nonindicted Co. 4, Article 11-2(4)1 and 3 of the former Punishment of Tax Evaders Act, and thereby, affirmed the judgment of the court of first instance which convicted him of the charges of this case.

3. However, we cannot agree with the judgment of the court below for the following reasons.

Examining the facts acknowledged by the court below in light of the aforementioned legal principles, where Nonindicted 4, who supplied or was not supplied with clothing, issued a tax invoice indicating himself as a supplier of the clothing by using his own business registration, or he delegated the Defendant to prepare and submit to the Government a list of individual tax invoices by seller as to the clothing under his name, Nonindicted 4 becomes a principal offender for the crime under Article 11-2(4)1 and 3 of the former Punishment of Tax Evaders Act, and the Defendant is a joint principal offender with Nonindicted 4, and the Defendant may be a joint principal offender with Nonindicted 4, and if Nonindicted 4 did not so delegate to the Defendant, Nonindicted 4 or the Defendant is a principal offender for the crime under Article 11-2(4)1 and 3 of the former Punishment of Tax Evaders Act, or the Defendant cannot be deemed a co-offender for the crime under Article 4 of the former Punishment of Tax Evaders Act.

Nevertheless, the court below did not examine whether Non-Indicted 4 delegated the above authority to the defendant, and determined that the defendant constitutes a single criminal offense under Article 11-2 (4) 1 and 3 of the former Punishment of Tax Evaders Act. In so doing, the court below erred by misapprehending the legal principles on Article 11-2 (4) 1 and 3 of the former Punishment of Tax Evaders Act, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)