Defendant

Defendant and Prosecutor

An authorized pen, quarry, and quarry

Law Firm Jungwon, Attorneys Kim Jong-hwan et al.

Daegu District Court Decision 2018Gohap536 Decided May 31, 2019

1. The judgment of the court below (including the portion not guilty) shall be reversed.

2. The defendant shall be punished by imprisonment with prison labor for a year and six months and by a fine of nine hundred million won.

3. If the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

4. However, the execution of the above imprisonment shall be suspended for three years from the date this judgment becomes final and conclusive.

5. The defendant shall be ordered to pay an amount equivalent to the above fine provisionally;

1. Summary of grounds for appeal;

A. Legal principles (as to the prosecutor, not guilty)

When issuing and receiving false tax invoices among the companies operating substantially, the lower court erred by misapprehending the legal doctrine that only one tax invoice falls under this and thereby not guilty of part of the facts charged in the instant case, even though all of the tax invoices issued and received are deemed to constitute false tax invoices as stipulated in Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes.

B. Unreasonable sentencing

1) Defendant

The punishment of the court below (one year and six months of imprisonment and fine of 900 million won) is too unreasonable.

(ii)a prosecutor;

The sentence of the court below is too unhued so as to be unfair.

2. Determination

A. As to the assertion of misapprehension of the legal principle (not guilty part)

1) Summary of this part of the facts charged

A prosecutor charged the Defendant for a profit-making purpose, from the time on December 31, 2017, that the Defendant was issued a false tax invoice of KRW 135,100,000 from the value of supply by Nonindicted Co. 2 Co. 1, and from then on until December 31, 2017, up to December 31, 2017, up to December 10, 12, 13, 15, 19, and 20 of the list of crimes (1) in the attached Table of the lower judgment (2), Nos. 3, 8 through 10, 14, 19, and the list of crimes (2) Nos. 3, 8 through 10 of the list of crimes (5) and 8 through 10 of the list of crimes (5), as the total value of supply was issued.

2) The judgment of the court below

The court below found the above facts charged not guilty on the ground that it overlaps with 8,469,634,409 won which the court below found the defendant guilty on the ground that the total amount of the above facts charged reaches 6,755,236,000 won when it received the same false tax invoices that the defendant actually controlled and operated without real transactions. In calculating the "total amount of the supplied values, etc." under Article 8-2 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, such overlapping issuance and reception should not be added double issuance and reception.

3) Determination of the immediate deliberation

If an actor issues a tax invoice in the position of the person who supplies goods and services without a real transaction, and is issued a tax invoice in the position of the person who is supplied with such goods and services, an act of issuing the tax invoice conceptually exists. However, there is only one tax invoice in such form of processing transaction, and Article 8-2 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes only stipulates that the sum of supply values entered in the tax invoice is the aggregate of supply values entered in the tax invoice, and does not separately provide a method of calculating the aggregate of supply values entered in the tax invoice according to the type of act related to the tax invoice. ③ In the same act of receiving tax invoice, the crime of violating the Punishment of Tax Evaders Act and the Punishment of Tax Evaders Act are subject to punishment only for a crime which is heavier than that stipulated in the above Act (see, e.g., Supreme Court Decision 2012Do7172, Oct. 25, 2012).

Examining the judgment of the court below in light of the above legal principles and the evidence duly adopted and examined by the court below, the judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles. Therefore, the prosecutor's allegation in this part is not acceptable.

B. On the assertion of unfair sentencing (the part on the charge)

The crime of this case is not issued even though the Defendant issued or received a tax invoice even though there is no actual transaction of goods or services, and issued or received a tax invoice stating the value of supply in a false manner. Such a crime is likely to be subject to criticism in that it interferes with the legitimate exercise of the State’s right to tax collection, disturbs tax justice and tax order, and the total value of supply is significantly large.

However, the Defendant recognized all of the instant crimes, and is against the principle of criminal punishment. The Defendant has no record of criminal punishment. When a tax investigation on the instant crime was conducted, the Defendant revoked a return on a tax invoice for processed and false transactions, completed a revised return of value-added tax, and paid all additional tax accordingly. After undergoing the instant investigation, the Defendant voluntarily discontinued one company involved in the instant crime. While the Defendant had the objective of profit-making in obtaining economic benefits with respect to the instant crime, it appears that the instant crime was not committed for the purpose of tax evasion or tax refund.

In full view of all the circumstances, including these circumstances, including the Defendant’s age, character and conduct, environment, motive, means and consequence of the crime, and the circumstances after the crime, etc., the sentence imposed by the lower court is deemed to be somewhat unreasonable compared to its liability. Therefore, the prosecutor’s assertion that the Defendant’s above unfair sentencing ground is reasonable, and the Defendant’s sentence against the Defendant is too uneasible and unreasonable cannot be accepted.

3. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act (the part concerning the charge and the part concerning the non-guilty in the comprehensive charge shall also be reversed as follows).

The summary of the facts constituting an offense and the evidence recognized by this court is the same as that of the original judgment, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 8-2 (1) 1 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 10 (3) 1 of the former Punishment of Tax Evaders Act (amended by Act No. 16108, Dec. 31, 2018; hereinafter the same shall apply), Article 10 (3) 1 of the former Punishment of Tax Evaders Act (the issuance and receipt of false tax invoices; comprehensive imposition of imprisonment and fines as necessary); Article 10 (1) 1 of the former Punishment of Tax Evaders Act (the issuance of false tax invoices and the issuance of tax invoices; the choice of imprisonment); Article 10 (2) 1 of the former Punishment of Tax Evaders Act (the receipt of false tax invoices; and the selection of imprisonment)

2. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act [Aggravation of concurrent crimes provided for in the Act on the Aggravated Punishment, etc. of Specific Crimes (Issuance, etc. of False Tax Invoice) against which the punishment for each imprisonment is largest]

3. Discretionary mitigation;

Articles 53, 55(1)3, and 6 of the Criminal Act (The favorable circumstances as examined in the above)

4. Detention in a workhouse;

Articles 70(1) and (2), and 69(2) of the Criminal Act

5. Suspension of execution;

Article 62(1) and (2) of the Criminal Act (In regard to imprisonment, repeated consideration shall be made for favorable circumstances as seen above)

6. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Scope of applicable sentences under law: Imprisonment with prison labor for a period of one year and six months from one year to half years, and a fine of fine of 1) 846,963,440 to half a week), 2,17,408,602 won;

2. Scope of recommended sentences according to the sentencing guidelines (limited to imprisonment);

(a) Violation of the Aggravated Punishment, etc. of Specific Crimes (Delivery of False Tax Invoice);

[Determination of Punishment] Tax Crime Article 13 of the Act on the Aggravated Punishment, etc. of Specific Crimes (Type 2)

[Special Contributors] Reduction element: Where no purpose of tax evasion exists or no result of tax evasion occurs.

[Recommendation and Scope of Recommendation] Reduction Area, Imprisonment with prison labor from one year and six months to two years and six months;

[General Sentencing] Reduction element: No history of criminal punishment;

(b) Violation of the Punishment of Tax Evaders Act: Omission of sentencing guidelines;

(c) The standards for handling multiple crimes and the scope of recommended sentences that have been modified according to the applicable sentences: Imprisonment with prison labor for a year and six months to two years and six months (the crime for which the sentencing guidelines have been set and the crime for which no sentencing guidelines have been set are concurrent crimes under the former part of Article 37 of the Criminal Act; therefore, the lower limit of the scope of recommended sentences for crimes for which the sentencing guidelines have been set shall be observed, and the upper limit shall

3. Determination of sentence: Imprisonment with prison labor for a year and six months, three years of the stay of execution and a fine of nine hundred million won;

The punishment shall be determined as per the Disposition, comprehensively taking into account the various circumstances examined above.

The portion not guilty [related to the "total amount of supplied value, etc." for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes]

The summary of this part of the facts charged is the same as the above 2. A. 1. As seen in the above 2.2. A. 2. A. 2 and 3. As seen in the above 2. A. 2. 2. 2 and 3, it should be pronounced not guilty on the defendant pursuant to the latter part of Article 325 of the Criminal Procedure Act, unless the defendant is found guilty of a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (issuance

Judge Lee Jae-hee (Presiding Judge)

1) 8,46,963,440 = Total sum of supply values of the crimes in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Delivery, etc. of False Tax Invoice) ¡¿ KRW 8,469,634,409 ¡¿ 10 per cent of the value-added tax rate ¡¿ 10 per cent ¡¿ 1/2 (Discretionary mitigation) ¡¿ below originals.

Note 2) 2,117,408,602 = Total sum of supply values of the crimes in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Delivery, etc. of False Tax Invoice) ¡¿ KRW 8,469,634,409 x value-added tax rate x 10% x 5 times (limited to discretionary mitigation) x 1/2 (Discretionary mitigation),