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(영문) 대법원 2020. 11. 26. 선고 2020도11345 판결
[특정경제범죄가중처벌등에관한법률위반(사기)ㆍ특정범죄가중처벌등에관한법률위반(허위세금계산서교부등)][미간행]
Main Issues

[1] Criteria for the application of Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (=the amount calculated by adding up all supply values entered in the tax invoices, the aggregate tax invoices for individual suppliers and the aggregate tax invoices for individual suppliers, etc., established under Article 10(

[2] Where a revised tax invoice is issued and received, in a sense of cancelling the issuance and receipt of a processed tax invoice without supplying or being supplied with goods or services, with the indication of sound (-) on the same value of supply, whether the subsequent supply price constitutes a crime stipulated in Article 10(3)1 of the former Punishment of Tax Evaders Act (negative), and whether the issuance and receipt of a revised tax invoice may affect the establishment of a crime stipulated in Article 10(3)1 of the former Punishment of Tax Evaders Act where a revised tax invoice is issued and received for the purpose of cancelling the processed tax invoice (negative) / Whether the issuance and receipt of a revised tax invoice may affect the conclusion of a crime stipulated in Article 10(3)1 of the former Punishment of Tax Evaders Act, which is the standard for aggravated punishment pursuant to Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes

[Reference Provisions]

[1] Article 10(3)1 of the former Punishment of Tax Evaders Act (Amended by Act No. 16108, Dec. 31, 2018); Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes / [2] Article 10(3)1 of the former Punishment of Tax Evaders Act (Amended by Act No. 16108, Dec. 31, 2018); Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes

Reference Cases

[1] Supreme Court Decision 2009Do3355 Decided September 29, 201 (Gong2011Ha, 2278), Supreme Court Decision 2011Do4397 Decided September 29, 201, Supreme Court Decision 2013Do7219 Decided September 26, 2013 / [2] Supreme Court Decision 2018Do1724 Decided October 15, 2020

Defendant

Defendant 1 and one other

Appellant

Defendants

Defense Counsel

Attorney Park Ho-ju et al.

The judgment below

Seoul High Court Decision 2020No633, 2019No2591 decided July 24, 2020, Seoul High Court Decision 2020No633 decided August 7, 2020

Text

The part of the lower judgment against Defendant 2 is reversed, and that part of the case is remanded to the Seoul High Court. Defendant 1’s appeal is dismissed.

Reasons

1. The part of defendant 1

The grounds of appeal are examined.

On the grounds indicated in its reasoning, the lower court upheld the first instance judgment convicting Defendant 1 of the facts charged. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding deception, fraud, and joint principal offenders, contrary to what is alleged in the grounds of appeal, by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules by failing to exhaust all necessary deliberations

2. The part of the defendant 2

A. The grounds of appeal are examined.

1) First point

For the reasons indicated in its holding, the lower court determined that the charge of violating the Act on the Aggravated Punishment, etc. of Specific Crimes against Defendant 2 (hereinafter “Aggravated Punishment, etc.”) was related to a blanket crime. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on a blanket crime, contrary to what is alleged in the grounds of appeal.

2) Third point

For reasons indicated in its holding, the lower court convicted Defendant 2 of the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud). Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding deception, fraud, and joint principal offense, or by exceeding the bounds of the principle of free evaluation of evidence in violation

B. We examine ex officio the part on the violation of the Specific Crimes Aggravated Punishment Act (issuance of false tax invoices).

1) The judgment of the court below

With respect to the part of the facts charged in the instant case against Defendant 2, the prosecutor indicted that Defendant 2 issued or received four false tax invoices with respect to the violation of the Specific Crimes Aggravated Punishment Act (Delivery, etc. of False Tax Invoice), and calculated the sum total of the supply value of the three copies of the three copies of the tax invoices + “7,58,943,908,908 (= KRW 2,518,113,62 + KRW 2,598,283,636 + + KRW 2,472,546,650 + KRW 2,472,546,650” and “10,61,490,558 won (= KRW 7,583,908, 908 + KRW 2,594,274,656,656)” and “10,065.

As to this, the first instance court found Defendant 2 guilty of all of the parts issued or received a false tax invoice as above on the ground that, even if the revised tax invoice was issued or received without any basis for real transactions, it may violate Article 10(3) of the former Punishment of Tax Evaders Act (amended by Act No. 16108, Dec. 31, 2018; hereinafter the same shall apply) even if the revised tax invoice was corrected, Defendant 2 issued or received a false tax invoice; however, in calculating the total value of supply, the amount calculated by deducting the amount of the revised tax invoice of the volume (-) recognized as a single comprehensive crime, not by adding up the absolute value as above, should be calculated by deducting the value of supply (i.e., the total value of supply).

2) Judgment of the Supreme Court

A) Article 8-2(1) of the Specific Crimes Aggravated Punishment Act provides that “a person who commits a crime under Article 10(3) of the Punishment of Tax Evaders Act for the purpose of profit-making shall be punished by adding the value of supply, or the sum of the value of sale or purchase entered in the list of the total tax invoices by seller, etc. (hereinafter “total amount of supply value, etc.”) to five billion won or more (Article 10(3)1 of the Punishment of Tax Evaders Act (Article 10(3)1 of the former Punishment of Tax Evaders Act provides that “Where the sum of supply values, etc. entered in the list of the total tax invoices by seller, etc. is at least three billion won, or where the amount is at least three billion won but less than five billion won (Article 2012Do768, Apr. 30, 2014).”

According to these provisions, Article 8-2(1) of the Specific Crimes Aggravated Punishment Act provides for a single type of crime by combining the acts under Article 10(3) of the former Punishment of Tax Evaders Act with the grounds that the total amount of supply is above a certain amount, such as the value of supply. Therefore, the application of Article 8-2(1) of the Specific Crimes Aggravated Punishment Act shall be determined based on the total amount of tax invoices established for the crime under Article 10(3) of the former Punishment of Tax Evaders Act and the total amount of supply stated in the list of total tax invoices by seller and by seller (see, e.g., Supreme Court Decisions 2009Do3355, Sept. 29, 201; 201Do4397, Sept. 29, 2011; 201Do7219, Sept. 26, 2013).

Meanwhile, in full view of the language, structure, legislative intent, etc. of Article 10(3) of the former Punishment of Tax Evaders Act, where a revised tax invoice is issued and received without being supplied with or being supplied with goods or services and then the latter is issued and received with a negative indication in the same value of supply, and where the latter’s supply value is cancelled, the latter’s act of issuing and receiving the revised tax invoice does not constitute an offense provided for in Article 10(3)1 of the former Punishment of Tax Evaders Act, but rather, an act of issuing and receiving the revised tax invoice with a negative indication on the same value of supply. In short, it is reasonable to deem that the latter’s act of issuing and receiving the revised tax invoice does not constitute an offense provided for in Article 10(3)1 of the latter Punishment Act.

Furthermore, the crime under Article 10(3)1 of the former Punishment of Tax Evaders Act was committed by issuing and receiving a processed tax invoice without real transactions. Moreover, even if a number of revised tax invoices were issued and received to the effect that such processed tax invoices were revoked, it cannot affect the establishment of the completed tax offense.

Therefore, in calculating the “total amount of supply value, etc.,” which is the basis for aggravated punishment pursuant to Article 8-2(1) of the Specific Crimes Aggravated Punishment Act, the supply value of the revised tax invoice issued and received in the sense of cancelling the processed tax invoice without real transaction is not necessary (see Supreme Court Decisions 2018Do17244, Oct. 15, 2020; 2020Do118, Oct. 15, 2020).

B) We examine the reasoning of the lower judgment and the record in light of the aforementioned legal doctrine. The revised tax invoices of “2,472,56,650 won” issued or received by Defendant 2 on January 15, 2015, among four copies of the processed tax invoices issued or received by Defendant 2 as indicated in the facts charged, are deemed to have been prepared and issued with a negative indication on the same value in the sense of cancelling the tax invoices of “2,472,546,650 won” of the supply price issued or around January 2, 2015. This is merely a measure to rectify the issuance of the processed tax invoices without real transactions around January 2, 2015. Accordingly, Defendant 2’s issuance of revised tax invoices of “2,472,546,650 won” does not constitute the crime provided for in Article 10(3)1 of the former Punishment of Tax Evaders Act.

C) Nevertheless, on January 15, 2015, Defendant 2 issued revised tax invoices of “2,472,546,650 won” on or around January 15, 2015, the lower court upheld the first instance judgment that deemed that the act constituted a crime stipulated in Article 10(3)1 of the former Punishment of Tax Evaders Act. In so determining, the lower court erred by misapprehending the legal doctrine on “total amount of supply values, etc.” under Article 10(3)1 of the former Punishment of Tax Evaders Act or Article 8-2(1) of the Specific Crimes Aggravated Punishment Act, thereby adversely affecting the conclusion of the judgment.

C. Scope of reversal

For the foregoing reason, the portion of the lower judgment’s issuance of false revised tax invoices in relation to Defendant 2 should be reversed together with the part of the violation of the Specific Crimes Aggravated Punishment Act (issuance, etc. of false tax invoices) in relation to the issuance value of supply in relation to Defendant 2. Since the above reversed portion was sentenced to a single punishment in relation to the concurrent crimes under the former part of Article 37 of the Criminal Act with the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), the part against Defendant

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant 2 is reversed without further proceeding to decide on the remaining grounds of appeal, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 1’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)

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