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(영문) 서울고등법원 2018.09.05 2018노1454
특정범죄가중처벌등에관한법률위반(허위세금계산서교부등)
Text

The defendant's appeal is dismissed.

Reasons

1. The summary of the grounds for appeal (unfair sentencing) of the lower court’s sentence (one year of imprisonment with prison labor, two years of suspended execution, and fine of 330 million won) is too unreasonable.

In particular, the defendant is not obliged to pay a fine, and it is excessive because the defendant reaches 30 days of the detention period in the workhouse (one million won converted into one day) with respect to the fine.

2. Considering the unique area of sentencing of the first instance that is respected under the principle of trial priority and the principle of direct determination under the Criminal Procedure Act, and the ex post facto core nature of the appellate court, the first instance sentencing judgment exceeded the reasonable scope of discretion in light of the following factors: (a) the conditions of sentencing specified in the process of the first instance sentencing hearing and the sentencing criteria, etc.

In light of the records newly discovered in the course of the appellate court’s sentencing hearing, it is reasonable to file an unfair judgment of the first instance court, only in cases where it is deemed unfair to maintain the sentencing of the first instance court as it is for the court to judge the sentencing of the first instance court.

In the absence of such exceptional circumstances, it is desirable to respect the first instance sentencing determination (see Supreme Court Decision 2015Do3260, Jul. 23, 2015). The Defendant appears to have an attitude against himself/herself while making a confession of the entire crime, and the Defendant exercised the authority to select a subcontractor of construction works.

J and G are the circumstances favorable to the defendant, such as lending the corporate passbook of C, and issuing or issuing the false tax invoice in a passive manner according to their instructions, and it appears that the defendant did not commit a crime for tax evasion, etc. or gain a large amount of profit from the crime of this case. The defendant has no same power, and the defendant must consider equity with the punishment of forgery of securities for which judgment has already become final and conclusive.

However, the crime of this case was issued and received a false tax invoice.

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