A. Illegality in litigation procedures and grounds of appeal

(b) Where the calculation of evaded tax amount is allowed by decision of estimated tax investigation;

(c) Whether it is an act of evading the corporate tax, etc. by making false entries in the account book for expenditure is an act of evading the tax by deceit or other unlawful means (affirmative);

(d) Timing for the withdrawal of acts of evading corporate tax; and

A. Where the contents of the judgment are not itself, but only measures such as detention for securing the defendant's new illness, notification of the date of trial, disclosure of the trial, etc., and litigation procedures are violated by the law, the defense and defense rights of the defendant are essentially infringed, and the legitimacy of the judgment does not reach the extent that it is difficult to recognize the conclusion of the judgment. Thus, there is no ground of appeal which affect the judgment by itself.

(b)in the event that a tax evasion is made by falsely preparing or concealing account books and other documentary evidence relating to revenue and expenditure or by expanding the expenditure, it is not possible to collect evidence that the tax evasion is subject to certain recognition as one of the facts constituting one of the items of revenue or expenditure, which are the basis for calculating the evaded tax amount, and in such a case, it is permissible to estimate if the method is generally acceptable objective, reasonable, and the result is highly probable and correct;

(c) The evasion of corporate tax and defense tax by means of reducing corporate income by making and keeping falsely the ledger of wages and the statement of accounts for travel expenses, which are books of account for expenditure, instead of filing a return on tax base simply, and by making excessive appropriation of expenditure, is an act of evading tax by fraud or other improper means.

D. According to the provisions of Articles 26, 31, and 32 of the former Corporate Tax Act (amended by Act No. 3200, Dec. 28, 1979), it is apparent that the corporate tax is not “tax imposed and collected by filing a report”, and thus, the corporate tax is due to the lapse of the time limit for its return and payment pursuant to subparagraphs 1 and 2 of Article 9-3 of the former Punishment of Tax Evaders Act (amended by Act No. 3353, Dec. 31, 1980).

A. Article 383 subparag. 1(b) of the Criminal Procedure Act. Article 9 of the Punishment of Tax Evaders Act (amended by Act No. 3200, Dec. 28, 1979); Articles 26, 31, and 32 of the former Corporate Tax Act; Article 9-3 subparag. 1 of the former Punishment of Tax Evaders Act (amended by Act No. 3353, Dec. 31, 1980); Article 9-3 subparag. 2 of the former Punishment of Tax Evaders Act

B. Supreme Court Decision 80Do1474 delivered on January 19, 1982, 83Do264 delivered on November 27, 1984, D. Supreme Court Decision 83Do2050 delivered on May 14, 1985

Defendant 1 and one other

Defendants

Attorney Kim Jong-Un, Park Jong-chul, Choi Jong-sil

Seoul High Court Decision 84No3184 delivered on April 19, 1985

All appeals are dismissed.

The ninety days, out of those pending trial after appeal, shall be included in imprisonment with prison labor for Defendant 1.

The Defendants’ grounds of appeal are also examined.

1. As to the first ground for appeal by attorney Kim Jong-Un

Article 383 Subparag. 1 of the Criminal Procedure Act provides that "when there is a violation of the Constitution, Act, order or rule that affects the conclusion of the judgment," the grounds for appeal can only be made in the judgment of the court below. It does not directly serve as the grounds for appeal, and it does not constitute a violation of the Constitution, Act, order or rule. If the result of the judgment has an effect on the result of the above violation of Acts and subordinate statutes, it is clear that the return constitutes the grounds for appeal only when there is causation between the violation of Acts and subordinate statutes and the fact-finding of the crime and the determination of the punishment, which are the contents of the judgment. Thus, it is not the content of the judgment, but it is nothing more than the notification of the date of the trial, the right of defense, public disclosure of the trial, and the procedure are not sufficient to recognize that the defendant's right of defense, which is essentially infringed, and it does not affect the conclusion of the judgment, and thus, it does not affect the conclusion of the judgment by the court below's legitimate means of extension of the period of detention, and its defense right of the defendant's defense right to the court.

2. As to the grounds of appeal Nos. 2 through 7 of the Attorney Kim Jong-hwan, the grounds of appeal No. 1-2 of the Attorney Park Jong-chul, and the grounds of appeal No. 2 of the Attorney Choi Jong-chul

The Criminal Procedure Act requires strict proof for the recognition of facts constituting a crime. However, in a case where the defendant evades a tax by means of reducing the amount of revenue or increasing the expenses by means of false preparation of books of revenue and expenditure and other documentary evidence, it is not possible to collect evidence even if one of the facts constituting an item of revenue or expenditure, which is the basis of calculating the amount of evaded tax, can not be said to require clear evidence. In such a case, it is an objective and reasonable that the method can be generally acceptable, and if the result is highly probable and correct (see Supreme Court Decisions 83Do264, Nov. 27, 1984; 80Do1474, Nov. 19, 1982).

According to the records, the court below and the first instance court examined evidence as evidence for finding the facts. ① It is clear that the tax officials belonging to the Seoul District Tax Office have fabricated approximately 84 percent of the resident registration numbers of the above corporations when investigating the tax evasion of Defendant 2, and it is also stated that the number of 92 percent of the above data has been actually received wages in the wage ledger without any fact. Defendant 2 was investigated against the above non-indicted 1 who is the director of the accounting division of the company's income, and there is no possibility that the above method of calculating the tax base for the above construction work is unreasonable because it is not clear that there is no possibility that the above method of calculating the tax base for the above construction work has been used for the above construction work, and there is no possibility that the above method of calculating the revenue base for the above construction work has been used for the purpose of calculating the tax evasion of the above construction work, and there is no possibility that the above method of calculating the revenue base for the construction work has been used for the above construction work, and there is no other method of calculating the estimated labor cost for the construction work site and no other than 35 percent of the construction work cost.

3. As to the ground of appeal No. 8 of the attorney Kim Jong-Un, ground of appeal No. 2 of the attorney Park Jong-Un, and ground of appeal No. 3 of the attorney Park Jong-chul

If the court below and the first instance court collect the evidence based on the facts-finding based on the records, the defendant 2 corporation owned 90.46% of the shares (7.5% of the shares of Na money) and actually owned by the defendant 1 (7.5% of the shares of Na money and 2.04% of the shares owned by the executive director) and the total management of the shares is performed by the defendant 1's independent shipping act from the supply of the funds to the management and operation thereof, and in particular, since it is recognized that the accounting affairs are carried out by the defendant 1, who is the representative director, directed and handled the direct accounting affairs to the chief of the division and the vice president and the chief of the management division were almost not involved, there is no reason to argue that there was no criminal intent against the defendant 1 as to the tax evasion of this case.

4. As to the ground of appeal Nos. 9 through 11 of the Attorney Kim Jong-Un, and the ground of appeal No. 3 of the attorney Park Jong-hwan

According to the facts established by the first instance court's decision, Defendant 1's act of evading corporate tax and defense tax has been evaded by making and keeping a false statement of wage and travel expenses, which are not simple tax base return or underreporting, with regard to expenditure, and then reducing corporate income amount, so the court below is just in finding so-called "an act of evading corporate tax by deceit or other unlawful means" and Article 9-3 subparagraphs 1 and 2 of the Punishment of Tax Evaders Act (amended by Act No. 3353, Dec. 31, 1980) provides that the above amount of tax cannot be imposed and collected by the taxpayer under Article 9-28 of the Corporate Tax Act (amended by Act No. 3353, Dec. 31, 1980) and Article 9-3 subparagraph 1 and 2 of the Punishment of Tax Evaders Act (amended by Act No. 3798, Dec. 28, 1979). 198; thus, the above amount of tax can not be imposed and collected by the taxpayer under Article 2819.35 of the Corporate Tax Act.

5. As to the ground of appeal Nos. 12 and the ground of appeal No. 1-1 of the attorney Kim Jong-Un

Examining the evidence of the court below and the first instance court based on its findings of fact by comparing it with records, the facts constituting the crime of occupational embezzlement against Defendant 1 can be recognized, and there is no illegality of finding facts without any evidence, such as the theory of lawsuit, so this issue is without merit.

6. Therefore, all appeals are dismissed, and by applying Article 57 of the Criminal Procedure Act, 90 days of pre-trial detention after the appeal shall be included in the imprisonment with prison labor for Defendant 1. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jong-soo (Presiding Justice)

Since the fixed number of judges of the Supreme Court is during overseas business trip, they are unable to sign and seal.