(영문) 서울고등법원 2020.01.31 2019노1851 | 리걸엔진

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(영문) 서울고등법원 2020.01.31 2019노1851

특정범죄가중처벌등에관한법률위반(허위세금계산서교부등)등

Text

The judgment below

Of them, the part against Defendant A shall be reversed.

Defendant

A Imprisonment of three years and six months, and fine of 700,000.

Reasons

1. Summary of grounds for appeal;

A. As to whether Defendant A 1’s act of receiving each false statement on the list of crimes (in addition to the judgment of the court below, refers to the list of crimes attached to the judgment of the court below; hereinafter the same shall apply), the crime described in this part of the facts charged is the sole crime committed by Defendant B with regard to the conspiracy to commit the crime.

Defendant

A did not instruct Defendant B to commit any crime described in this part of the facts charged, or conspired to commit any crime.

Nevertheless, the lower court determined that Defendant A conspired with Defendant B to commit a crime described in this part of the facts charged, by misunderstanding the facts and applying a wrong interpretation and application of the relevant statutes.

(A) The crime listed in the No. 5 of the Crime List 1: Defendant B was not an employee or officer of F (hereinafter “F”) around July 5, 2016, when committing the crime, and thus, Defendant A, a representative director of F, was not in a position to instruct Defendant B to commit the crime, and Defendant B did not have any reason to stop committing the crime for F for which he did not work.

Therefore, this part of the crime is not by Defendant A’s instruction, but by Defendant A’s conspiracy to commit this part of the crime.

(B) Each crime listed in the Nos. 2, 3, 4, and 12 of the crime sight table 1: Defendant B, at the time of operation of F, issued false statements listed in the No. 2 of the crime sight table 1 in order to adjust the F’s obligations to AB (hereinafter “AB”), or stated that each of the false statements listed in the No. 2, 3, 4, and 12 of the crime sight table 1 was issued and circulated in order to raise AB’s sales performance.

Therefore, this part of the crime is not by Defendant A’s instruction due to Defendant B’s sole crime, but by Defendant A’s conspiracy to commit this part of the crime.

유사 판례

-부산지방법원 서부지원 2019.05.16 2018고단1929

-창원지방법원 진주지원 2017.06.13 2016고단1236

-창원지방법원 2016.03.31 2016고정180

-서울고등법원 2015.01.29 2013노3655

-서울남부지방법원 2016.06.09 2015고합534