[1] Whether the act of a certified tax accountant signed and sealed on a tax settlement statement prepared by an unqualified certified tax accountant constitutes a joint principal offense of an unqualified tax agent’s act (negative)

[2] Where a certified tax accountant prepares a tax settlement invoice independently and obtains only the name and seal of the certified tax accountant, whether it constitutes a tax agency business act under Article 22(1) of the Certified Tax Accountant Act (affirmative)

[1] In light of the fact that the Certified Tax Accountant Act provides a separate provision punishing a certified tax accountant who violates the prohibition of name lending, in addition to the punishment for acts of tax agent without qualification, and at the same time the statutory penalty is less than that of the act of tax agent with no qualification, the application of punishment to a certified tax accountant who puts his/her name and seal on a tax settlement statement prepared by an unqualified person is merely a matter of violation of the prohibition of name lending, and there is no room for punishment to constitute a joint principal offender of

[2] If a person, who is not a certified tax accountant, independently acts for a business operator with the authority delegated by him/her without being instructed and supervised by the certified tax accountant, completes the preparation of the tax settlement statement on the basis of his/her account book, and obtains his/her name and seal thereto from a person qualified as a certified tax accountant, even though the certified tax accountant affixed his/her name and sealed the case to the case register as his/her case case, and affixed his/her name and seal thereto after reviewing the formal facts of the tax settlement statement, such act by a person disqualified as a certified tax accountant constitutes a tax agent's act prohibited under Article 22 (1) 1 of the Certified Tax Accountant Act.

[1] Articles 12-3, 22(1)1, 22-2 subparag. 1, and 30 of the Criminal Act of Certified Tax Accountant Act / [2] Article 22(1)1 of the Certified Tax Accountant Act, Article 119(1) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994)

[2] Supreme Court Decision 94Do217 delivered on April 29, 1994 (Gong1994Sang, 1740)

Defendant 1 and five others

Prosecutor

Attorney Cho Hong-soo et al.

Seoul District Court Decision 96No1334 delivered on May 2, 1996

1. Of the judgment below, the part on Defendant 1 and 2 shall be reversed, and this part of the case shall be remanded to the Panel Division of the Seoul District Court.

2. Each prosecutor's appeal against Defendant 3, 4, 5, and 6 and all of Defendant 3's appeal are dismissed.

The grounds of appeal are examined.

1. As to the prosecutor's appeal against Defendant 6

The court below rejected the evidence that corresponds to the facts charged in this case against the above defendant, and found the defendant not guilty on the ground that there is no evidence to prove the crime. In light of the records and comparison of the relevant evidence, the above recognition and judgment of the court below are just, and there is no error of law that found the facts affecting the conclusion of the judgment in violation of the rules of evidence as discussed in the judgment

2. As to Defendant 3’s appeal and Prosecutor’s appeal against the same Defendant

The court below found Defendant 3 guilty as to the facts charged of this case where the defendant 3 received money and valuables in relation to the mediation of matters concerning the duties of officers and employees of the financial institution by receiving KRW 24,200,000 in total, on the ground that he received KRW 4,000,000 from the defendant 3, the court below rejected the evidence corresponding to the above fact that the defendant 3 received KRW 20,200,000 for the remaining 20,000 for the reasons as stated in the judgment of the court below, and acquitted him on the ground that there is no proof of crime as to this part. In light of the relevant evidence, the above recognition and judgment of the court below are just, and there is no error of law by violating the rules of evidence or by misapprehending the legal principles as to the burden of proof as discussed in the judgment below

3. As to the Prosecutor’s appeal against Defendant 1, 4, and 5

A. The judgment of the court below

The court below held that the above Defendants violated Article 22 (1) 1 of the Certified Tax Accountant Act by preparing documents, such as adjusted account statement under Article 119 (1) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) by public offering of the above Defendants, without qualification as a certified tax accountant; Defendant 1 did not establish an office in the name of the certified tax accountant, employ the office members, and received fees from approximately 40 business operators on the ground that they did not violate the above adjusted account statement under Article 119 (1) 1 of the Certified Tax Accountant Act; Defendant 1 prepared a false adjusted account statement under Article 119 (1) of the former Income Tax Act on the grounds that the above adjusted account statement was signed and sealed by the certified tax accountant; and Defendant 1 prepared a false adjusted account statement under Article 4 of the former Certified Tax Accountant Act on the grounds that the above adjusted account statement was signed and sealed by the certified tax accountant and the above adjusted account statement under his name and seal affixed to Defendant 14 of the above certified account statement.

B. Appropriateness of the lower judgment against Defendant 4 and Defendant 5

(1) Article 22(1)1 of the Certified Tax Accountant Act provides that a person not qualified as a certified tax accountant who acts as a tax agent shall be punished by imprisonment for not more than three years, or by a fine not exceeding 5,00,000 won. Articles 22-2 subparag. 1 and 12-3 of the same Act provide that when a certified tax accountant acts as a tax agent using his/her name or trade name or lending his/her certificate of qualification or license to another person, he/she shall be punished by imprisonment for not more than one year or by a fine not exceeding 3,00,000 won. In addition to the punishment for acts of tax agent without qualification, in addition to the punishment for acts of tax agent, a separate provision which punishs a certified tax accountant who violates the prohibition of name transfer, and the statutory punishment is less than that of the act of tax agent without qualification, with respect to a tax accountant who signed and sealed his/her name at the tax invoice prepared by an unqualified person, only the application of the prohibition of name transfer, and there is no room for the establishment of acts of tax agent without qualification.

(2) Therefore, the judgment of the court below which acquitted Defendant 4 and Defendant 5 on the ground that he affixed his name and seal to the tax settlement statement prepared by an unqualified person on the grounds of violation of Article 22 (1) 1 of the Certified Tax Accountant Act on the ground that he affixed his name and seal to the tax settlement statement is justifiable in its conclusion, and there is no error of law in the misapprehension of legal principles

C. Appropriateness of the lower judgment against Defendant 1

In light of Article 22 (1) 1 of the Certified Tax Accountant Act (amended by Act No. 4803 of Dec. 22, 1994) and Article 119 (1) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994), where a person who is not a certified tax accountant prepares a tax settlement statement under his/her name as well as where a certified tax accountant prepares a tax settlement statement under his/her name, he/she shall be deemed to fall under the case where a tax settlement statement is conducted by a tax agent without the qualification of a certified tax accountant. According to Article 119 (1) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994), the tax settlement statement shall be prepared by a person who is not a certified tax accountant on his/her own with the authority delegated by the business operator without the direction and supervision of the certified tax accountant, and after completing the preparation of the tax settlement statement under his/her name and affixed his/her name and seal.

The court below determined that Defendant 1's act was merely an act of preparation for the preparation of the tax settlement statement, with due regard to the fact that Defendant 4 and Defendant 5, who are qualified as a certified tax accountant, examined the formal facts of the tax settlement statement, and entered the case in the accounting book as his case, but Defendant 1's act was merely an act of preparation for the preparation of the tax settlement statement. However, although Defendant 1 did not have a qualification as a certified tax accountant, the fact that Defendant 1 established an office and hired the office and delegated the office to act as his agent, and completed the preparation of the recommended tax settlement statement by 40, and Defendant 4 and Defendant 5, who had worked in the same tax office in the past, are legally admitted by the court below. According to the records, Defendant 1's act, without confirming the accounting books and documentary evidence, shall be deemed to fall under the act of the tax settlement statement and the act of proxy agent without the qualification of the certified tax accountant.

Nevertheless, the court below judged that Defendant 1 was only a preparatory act to prepare a tax settlement invoice of Defendant 4 and Defendant 5, who is a certified tax accountant, and sentenced Defendant 1 not guilty on this part of the facts charged. The judgment of the court below is erroneous in the misapprehension of legal principles as to the act of tax agency by unqualified persons, and since such illegality has influenced the judgment, the judgment of the court below cannot be reversed. Since this part of the facts charged is deemed to have a relation between Defendant 1's violation of the Certified Tax Accountant Act and the crime of blanket violation of the Certified Tax Accountant Act, the court below affirmed the judgment of the court of first instance which sentenced Defendant 1 not guilty on the ground that it has a relation between the crime of violation of the Certified Tax Accountant Act and the crime of forgery of public document in the former part of Article 37 of the Criminal Act. Thus, the part on Defendant

4. As to Defendant 2’s appeal

On July 1, 1996, which was after the decision of the court below was made, the revised Criminal Act was enforced as of July 1, 1996, and the statutory punishment for the crime of forging public documents and the crime of uttering of forged public documents was somewhat modified than before the amendment of the Criminal Act. Thus, among the judgment below, the part concerning the crime of forging public documents and the crime of uttering of forged public documents cannot be exempted from reversal under Article 1 of the Criminal Act, Article 383 subparagraph 2 of the Criminal Procedure Act, and Articles 384 of the Criminal Procedure Act. Since the above crimes are concurrent crimes against the defendant under the former part of Article 37 of the Criminal Act, the judgment of the court below cannot avoid reversal in its entirety

5. Therefore, the part of the judgment of the court below against Defendants 1 and 2 is reversed, and that part of the case is remanded to the court below. The prosecutor's appeal against Defendants 3, 4, 5, and 6 and the appeal against Defendants 3 are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)