The meaning of “for-profit purposes” under Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and whether the purpose of obtaining economic benefits by evading taxes through the transaction of taxation data is to obtain economic benefits or unjust profits, and whether the purpose of obtaining economic benefits by not supplying goods or services or by issuing a tax invoice under the Value-Added Tax Act without being supplied or being supplied constitutes “the purpose of obtaining economic benefits” (affirmative)

Article 8-2 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes

Supreme Court Decision 2011Do4397 Decided September 29, 2011 (Gong2014Ha, 2140) Supreme Court Decision 2013Do5758 Decided September 24, 2014

Defendant 1 and one other

Defendants

Law Firm Initial et al.

Seoul High Court Decision 2014No1634 decided December 12, 2014

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

A. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) (hereinafter "Specific Economic Crimes Act").

Of the facts charged in this case, the violation of the Act on the Aggravated Punishment of Specific Economic Crimes (Fraud) and the violation of the Aggravated Punishment of Specific Economic Crimes (Misappropriation), which are the ancillary facts, are different from each other, the first instance court erred by misapprehending the legal principles as to the modification of an indictment, and thus, it is unlawful to conclude that the first instance court's permission of the modification of an indictment to add the ancillary facts, which is the primary facts charged, was only asserted in the final appeal that Defendant 1 did not regard it as the grounds for appeal or make it subject to the judgment ex officio, and therefore, it cannot be a legitimate ground for appeal. In addition, even after ex officio examination, it is permissible to amend an indictment because the identity of basic facts between

In full view of adopted evidence, the court below acknowledged the facts and circumstances as stated in its holding, and found Defendant 1 guilty of violating the Specific Economic Crimes Act (Misappropriation) among the facts charged in the instant case, which is the ancillary charge, by allowing the victim non-indicted 3 corporation to pay the construction cost, which is KRW 1.43 billion, in collusion with the non-indicted 1 and the non-indicted 2, in violation of his occupational duty, to the non-indicted 3 corporation in relation to the instant construction work, thereby obtaining pecuniary benefits equivalent to the above amount and causing the same loss to the victim.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the said determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine

B. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Delivery, etc. of False Tax Invoice) (hereinafter “Aggravated Punishment Act”)

“Profit-making purpose” under Article 8-2(1) of the Specific Crimes Aggravated Punishment Act refers to the purpose of obtaining wide economic benefits, and the purpose of obtaining economic benefits through transaction in taxation data is to obtain economic benefits by either not supplying goods or services or issuing a tax invoice under the Value-Added Tax Act without being supplied as a means of crime for the purpose of obtaining economic benefits or unjust benefits by evading taxes (see Supreme Court Decision 2013Do5758, Sept. 24, 2014).

According to the reasoning of the judgment below and the record, Defendant 1 is aware of the fact that: (a) Nonindicted Co. 4 Co. 4 (the trade name prior to the alteration; hereinafter “Nonindicted Co. 4”) and Nonindicted Co. 5 (the trade name prior to the alteration; hereinafter “Nonindicted Co. 5”) are the means of having value-added tax mitigated or committing the crime of occupational breach of trust or embezzlement; or (b) Nonindicted Co. 4 issued a tax invoice stating as if it supplied goods or services in an amount of KRW 4,134,02,355 in total, even though it did not supply goods or services to ○○○○, etc.; and (c) did not supply goods or services in the name of Nonindicted Co. 4 and Nonindicted Co. 5, and issued or was issued a tax invoice of KRW 11,629,25,934 in total without being supplied with goods or services.

Examining these facts in light of the legal principles as seen earlier, Defendant 1’s above act constituted for the purpose of profit-making as stipulated in Article 8-2(1) of the Specific Crimes Aggravated Punishment Act. Therefore, the lower court did not err in its judgment by misapprehending the legal doctrine on “for profit-making purpose” in the crime of violation of the Specific Crimes Aggravated Punishment Act (issuance of falsified Tax Invoice).

C. As to the remaining convictions

Defendant 1 filed an appeal against the remainder of convictions in the judgment below, but there is no indication of the grounds for appeal in the petition of appeal nor any statement of the grounds for appeal as to the grounds for appeal.

2. As to Defendant 2’s ground of appeal

According to the records, the defendant appealed against the judgment of the court of first instance and asserted only unfair sentencing as the grounds for appeal. In such a case, the argument that the judgment of the court below erred in the misapprehension of legal principles as to the crime of violation of the Specific Crimes Aggravated Punishment Act (Delivery of False Tax Invoice, etc.) does not constitute a legitimate ground for appeal. Furthermore, even if examining the records,

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)