(영문) 서울고등법원 2010.10.28. 선고 2009노2302 판결

① 법원의 조정을 거쳤다고 하더라도 조정 추진자가 본인의 이익에 반하는 사실을 알면서 개인적 이익을 위하여 무리하게 조정을 추진하였다면 배임의 범의가 인정되고, 이 사건 조정은 행정소송에서의 조정권고에 대하여 당사자들이 이를 수용한 것으로 일반적인 민사조정과는 달리 보아야 하며, 더구나 이 사건 조정은 G(이하 ‘공사'라고 한다)의 이익보다는 일시적인 재정적자의 해소를 위한 방편으로 이루어졌고, 그 조정안의 내용도 과세관청의 요구를 전적으로 수용한 것이며, 법인세 추징금 459억 원은 당연히 환급받을 수 있는 돈으로 이를 조정을 통하여 환급받았다고 하여 조정을 통하여 상당한 이익을 얻었다고 볼 수 없고, 그와 같은 조정권고 또한 공사가 법원에 제출한 조정안에 따라 형식적으로 이루어진 것으로 조정의 개시나 조정 내용의 확정에 있어서 법원이 주도적으로 관여한 사실이 없는 점, ② 공사와 영등포세무서장(이하 소송을 수행한 서울지방국세청과 함께 과세관청'으로 함께 부른다) 사이의 조세소송의 판결 내용을 보면, 공사가 승소한 판결은 과세관청의 입증곤란으로 상급심에서도 공사의 승소가 유력하였고, 패소한 판결은 큰 의미가 없었으며, 상대방인 과세관청도 공사의 최종 승소를 예상하고 있었는바, 피고인도 그와 같은 공사의 최종 승소가능성에 대하여 조세소송팀의 보고 등을 통하여 잘 알고 있었던 점, ③ 조세소송 판결에서 추계과세의 방법이 언급되었을 뿐 실제로 추계과세가 가능하다고 판시한 것은 아니고, 과세관청 스스로도 추계과세가 사실상 어렵다고 판단하였는바, 법인세 등의 재부과 가능성은 없었던 점, ④ 공사는 국가와는 별개의 독립된 기관으로 수신료를 징수하여 운영되는 공법인이므로, 당연히 환급받을 수 있는 세액에 대한 환급 포기는 공사에 대한 명백한 배임행위에 해당하는 점, ⑤ 과세관청은 초기부터 세무조사를 통한 추징의 위법성을 인정하여 환급이 가능함을 시사하였고, 추계조사를 통한 세금 재부과도 입증곤란으로 인해 현실적으로 어렵다는 입장을 표명하였으며, 피고인도 조세소송팀의 보고를 통하여 이러한 사실을 인식하고 있었던 점, ⑥ 피고인은 2004. 4.경부터 조정을 시도하였으나 과세관청의 이견으로 조정시도를 중단하였다가, 2004.경 638억 원의 적자가 발생하고 경영 책임을 추궁당하자 2005. 3.경부터 본격적으로 조정을 추진한 점, ⑦ 과세기준 설정이 필요하다고 하더라도 환급액을 포기할 이유가 없었고, 추가적인 재정적 부담도 없었으며, 추가 추징은 과세관청 스스로도 위법하다고 판단하여 계속적 추징은 사실상 곤란하였음에도, 984억 원에 이르는 법인세의 환급요구를 포기하고, 부가가치세에 대하여는 환급요구조차 하지 아니한 것은 공사의 이익에 명백하게 반하는 것으로, 그와 같은 내용의 조정안은 합리성이 결여되어 있는 점, 8 조정을 마무리할 때까지 승소가능성 및 환급액 포기의 적정성 등에 대하여 실질적인 검토가 없었고, 이사회보고, 경영회의 의결은 조정 방침이 결정된 후 경과보고를 통해 조정을 추인받은 것에 불과한 점, ⑨ 2005. 9.경 조정 추진의 문제점이 보도되고 나서야 전문가들에 대한 자문을 의뢰하고, 조정안 제출 이전에는 자문 의뢰를 하지 않았으며, 자문 당시 재정적자 상황과 조정안 양보내용, 환급액 포기사실 등을 알리지 아니한 점, ① 2004년 적자의 주요원인은 피고인의 부실경영에 있었고, 이사회는 경영 책임 추궁의사를 표명하였으며, 피고인은 경영혁신안 발표와 경영진 퇴진 운동이 전개되는 과정에서 불신임투표 마감 직전 노동조합과 극적 합의를 하였고, 노동조합과 2005년도 경영적자시 경영진이 책임을 진다는 합의 후 3, 4개월 만에 이 사건 조정이 이루어진 것인 점 등을 종합하여 보면, 피고인은 재정적자를 일시 해소하여 사장직 유지 내지 연임이라는 개인적 목적을 달성하기 위하여 경제적인 관점에서 1,800억 원대의 재산상 손해를 가한다는 사실을 알면서도 무리하게 조정을 추진한 것으로 보아야 하는바, 피고인에게 업무상배임의 범의가 충분히 인정된다.

Nevertheless, the court below found the defendant not guilty of the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) of this case on the ground that the defendant has no intention to commit an occupational breach of trust in light of the characteristics of mediation, etc.

2. Basic facts

According to the evidence duly adopted and examined by the court below and the trial court, the following facts are recognized:

(a) Status of the defendant;

On April 25, 2003, the Defendant was appointed to the president of the Corporation and completed the remaining term of office of the former president on or around June 2003, and commenced the term of office again upon appointment of the president on or around June 2003. On or around November 2006, the Defendant took office as the president again and started the term of office, and was dismissed on August 11, 2008, and was in general in charge of management affairs, such as personnel affairs, funds, and accounting affairs of the Corporation during the term of office.

B. The nature of the construction

In accordance with the Broadcasting Act (former G law), the Corporation is a nonprofit corporation established by the Government with full capital invested in order to establish a fair and sound broadcasting culture and efficiently implement domestic and foreign broadcasts (Article 43 of the Broadcasting Act). The Corporation is operating as a revenue from advertising fees, revenue from transmission of transmission fees, revenue from transmission of transmission fees, revenue from receiving fees, etc. with basic financial resources to cover the costs of public service projects called public broadcasting business.

(1) At the time of calculating the corporate tax for the business year 2004, the Corporation reported the corporate tax, etc. by including the receiving fees in the gross income, which is the basis for calculating the corporate tax base (including special surtax and special rural development tax), such as the revenue of receiving fees, the revenue of advertising fees, the revenue of radio wave fees, and the revenue of the classical music group.

(2) In addition, the Corporation did not account the revenue and expenditure of the advertising broadcast separately from the revenue and expenditure of the general broadcasting until 2000. However, the Corporation calculated the ratio of the revenue of the advertising fees to the total revenue of the corporation pursuant to Article 61(1) of the Enforcement Decree of the Value-Added Tax Act, and deducted only the amount equivalent to the ratio of the total revenue of the corporation from the output tax amount (excluding the amount of the revenue of the receiving fee from the output tax amount to be deducted). The amount of the general broadcasting was exempted from the output tax amount (amended by Act No. 6905 of May 29, 2003). As the value-added tax is exempted pursuant to Article 12(1)7 of the former Value-Added Tax Act and Article 32(4) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17041 of Dec. 12, 200).

(3) On the other hand, after February 25, 2001, the Corporation revised Article 32(4) of the Enforcement Decree of the Value-Added Tax Act (Presidential Decree No. 17041) (Presidential Decree No. 17041) on December 29, 2000, and revised the Enforcement Decree of the Value-Added Tax Act (Presidential Decree No. 17041) and Article 32(4) of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17041) on the premise that the Corporation will remain taxable only as a result of the revision of the Enforcement Decree of the Value-Added Tax Act, and it started to report the value-added tax by deducting the total input tax amount from the input

(d) Action claiming restitution of unjust enrichment;

(1) From November 15, 1992, the Corporation started a legal review process to improve the previous tax practices that had been paid corporate tax, etc. on the revenue from receiving fees from the standpoint of "the receiving fees are not taxes for broadcasting services, but for quasi-taxes not subject to taxation." At the end, in the inspection of state administration in 1993 and 1994, some members of the National Assembly pointed out the illegality of the payment of receiving fees, the Corporation appointed H attorney as a legal representative and filed a lawsuit against the Republic of Korea and Seoul Special Metropolitan City for the claim for restitution of unjust enrichment under the Seoul District Court 94Gahap97455 on November 15, 1994.

(2) The Corporation asserted in the above civil procedure as follows.

(A) Value-added tax portion

Since the corporation operates only one broadcasting business as a whole, it is necessary to calculate the value-added tax by deducting all input tax amounts required for the said broadcasting service from the output tax amount (other than receiving fees) generated at the time of supplying the said broadcasting service, the input tax amount for the general broadcasting portion is deemed to fall under those subject to the non-deduction of the input tax amount under Article 17(2)4 of the Value-Added Tax Act, and thus, the corporation pays the value-added tax without deducting the input tax amount equivalent to the general broadcasting portion. Accordingly, the Republic of Korea should return the input tax amount equivalent to the general broadcasting portion paid by the

(B) Corporate tax, etc. portion

Since the Corporation is a nonprofit corporation that operates broadcasting business which is a proper purpose business and pays corporate tax, etc. even though it does not have any profit-making business without any profit-making business, it is merely a financing method for operating the proper purpose business, it shall return it as unjust enrichment.

(3) The Corporation has both lost the first instance court (Seoul District Court Decision 94Gahap9745 delivered on August 14, 1997), the appellate court (Seoul High Court Decision 97Na4352 delivered on August 21, 1998), and the appellate court (Supreme Court Decision 98Da47184 delivered on February 25, 200), and the appellate court (Supreme Court Decision 98Da47184 delivered on February 25, 200), and the contents of the decision of the appellate court are as follows.

(A) Value-added tax portion

1)The Receiving Fees shall be deemed to constitute special charges imposed on a specific group in possession of TV sets in order to meet the costs of particular public service, such as public broadcasting business, so it shall not be deemed to be charges paid in return for the services of the System.

2) A broadcast that takes place only on the receipt of receiving fees, among the broadcasts offered by the System, constitutes the supply of services free of charge in relation to general viewers, and thus, it shall be deemed non-value-added tax-free, while a broadcast business that operates this business cannot be deemed to constitute a taxable business of value-added tax. On the other hand, an advertising broadcast that takes place on the receipt of advertising fees constitutes a taxable business of value-added tax, unlike

3) The Broadcasting Business does not fall under the Value-Added Tax Act as well as the Value-Added Tax-Added Tax Act, and under the Value-Added Tax Act, the Corporation only runs an advertising business which is a taxable business. Therefore, in calculating the input tax amount to be deducted from the value-added tax amount, the Corporation’s input tax amount on the supply of goods or services, etc. used or to be used for an advertising business which is a taxable business pursuant to Article 17 of the former Value-Added Tax Act (Paragraph

4) In calculating the input tax amount for the advertisement broadcast, the Corporation’s act of calculating the input tax amount for the advertisement broadcast, without distinguishing and confirming the parts recognized as related to the advertising business from the total input tax amount of the corporation’s total input tax amount, and then reporting the amount of value-added tax calculated by deducting it, is unlawful. However, in the case of taxes on the method of tax payment such as value-added tax, as a matter of principle, the taxpayer’s tax liability is specifically determined by the taxpayer’s act of determining the tax base and tax amount and filing the return, and the act of payment is the performance of specific tax liability determined by the report. The State or local government holds the tax amount paid based on the final tax claim. As such, it cannot be deemed that the defect of the taxpayer’s filing of a return is apparent, and thus, it cannot

(B) Corporate tax, etc. portion

1) A non-profit domestic corporation is subject to the corporate tax, regardless of whether the profit-making business or revenue generated by the income falls under any of subparagraphs 1 through 7 of Article 1(1) of the former Corporate Tax Act, regardless of whether it is intended to achieve its proper purpose.

2) Broadcasting business is a provision of free services, and thus cannot be viewed as a profit-making business of the Corporation. However, since advertising business, which is a profit-making business operated by the Corporation, falls under the advertisement business and newspaper site business among the business service business under Article 1(1)1 of the former Corporate Tax Act, Article 2(1) of the former Enforcement Decree of the Corporate Tax Act, and Article 36 subparag. 4 of the former Enforcement Decree of the Income Tax Act, the Corporation is obligated to pay corporate tax on revenues such as advertising fees, radio wave fees, and school platform earnings, etc. Therefore, the corporation’s assertion that it does not operate a separate profit-making business under the proviso of Article 1 of the former Corporate Tax Act on the premise that it is not a business with a proper purpose business, is without merit.

(iii)The Receiving Fees shall be deemed to have the nature of a public charge collected from the holders of television sets with a specific range of ability to bear for the maintenance and operation of a public broadcaster, and shall not be deemed to have been subject to taxation of corporate tax, i.e., revenues from the broadcast services of the System.

4) Since corporate tax is a tax finalized by a taxpayer’s declaration, it shall be deemed that there is a serious defect in reporting the act of the corporation, such as corporate tax, to be liable for corporate tax on the revenue portion of receiving fees. However, it is difficult to view the above defect as apparent apparent, and therefore, it cannot be said that the tax payment of the corporation constitutes unjust enrichment.

(4) Meanwhile, during the course of the final appeal of unjust enrichment lawsuit, the Constitutional Court rendered a decision on the nature of the receiving fee of the Corporation, such as the above Supreme Court’s decision, that “it constitutes “the service costs, not the beneficiary charges, but the special charges, other than taxes,” (the Constitutional Court Order 98Hun-Ba70 delivered on May 27, 199).”

(e)the rejection disposition and the second imposition by decision of correction against reduction requests by the tax authorities;

(1) Requests for reduction or correction of construction works and refusal disposition by tax authorities

The Corporation ruled against the judgment of the first instance court of the lawsuit seeking the return of unjust enrichment that H attorney appointed, but the court confirmed the reason for the judgment that the receiving fees are special charges not for broadcasting services but for the payment of taxes based on the revenue of receiving fees is illegal." In order to refund the corporate tax and value-added tax paid on the premise that the receiving fees already paid are taxable income or taxable transactions, the Corporation decided to request the competent tax authority to correct the amount of reduction or exemption and file a lawsuit without accepting such assertion.

(A) Corporate tax;

The Corporation requested the tax authorities to rectify the amount of receiving fees in sequential order from March 31, 1998 to May 13, 2003, which was newly calculated by 199 to exclude receiving fees from taxable income subject to corporate tax, but the tax authorities rejected each request for reduction.

(b) Value-added tax;

The Corporation requested the tax authorities to rectify the amount of value-added tax from January 26, 1998 to January 2002 on the ground that the Corporation concurrently operates an advertising business which is a taxable business under the Value-Added Tax Act, so Article 61 (1) of the Enforcement Decree of the Value-Added Tax Act, which applies to the Corporation when it concurrently operates a taxable business and a taxable business, cannot be applied to the Corporation. Therefore, the corporation requested the tax authorities to rectify the amount of value-added tax for the period from January 26, 1998 to January 2002, which is newly calculated on the ground that the input tax amount related to the taxable business should be refunded. However, the tax authorities also rejected each request

(2) Determination of increase ex officio by tax authorities

From February 8, 2001 to June 19, 2001, the tax authorities conducted a tax investigation with respect to the tax accrued between February 8, 2001 and June 19, 2001, and subsequently issued a disposition of rectification, such as increase, as follows:

(A) Corporate tax;

1) Corporate tax for the business year 1996

Based on the cost report prepared by the Corporation internally, the tax authorities excluded the revenues from the revenue of the Corporation from the revenue of the revenue of the revenue of the Corporation, classify the operation of the I and J as the advertising business which is a profit-making business, and classify the operation of the remaining channels except I and J as the non-profit business, and then evaluate only the costs incurred in the operation of I and J as the deductible expenses related to the advertising business and determine the amount of corporate tax by the method of newly assessing the tax base of the corporation's corporate tax as the deductible expenses related to the advertising business, and then rectify the tax amount to increase the amount of corporate tax of the 16,425,842,070 for the business year 196.

However, the above cost report is prepared as reference for internal business management by the Corporation. The Corporation does not separate the assets, liabilities, and profits and losses for each profit-making business and each non-profit business run by the Corporation, but only analyzes the cost of production and expenditure for each program sent by the plaintiff. Unlike the taxation data based on general separate accounting that state all the operating costs and non-business costs, only the operating costs, such as broadcasting business costs and sales and management costs, are excluded from the analysis, and since the cost report alone was not enough to confirm whether the loss for the pertinent business year and the amount of loss.

2) Corporate tax after the business year 1997

The tax authority did not classify the amount of income of the corporation as belonging to the profit-making business and the non-profit business, and included the amount of receiving fees in the gross income and adjusted the amount of corporate tax on September 1, 1997 according to the non-deductible of each item or the wrongful calculation panel, etc., and corrected the amount of corporate tax on September 1, 2001 by 939,290,880 won, and the amount of corporate tax on 9,582,414,780 won, and the amount of corporate tax on 1998 to 9,582,414,780 won, respectively.

(b) Value-added tax;

On September 1, 2001, according to the tax investigation conducted above, the tax authority increased the value-added tax for the first year of 1997 to 53,376,960 won, the second year value-added tax for the second year of 1997 to 63,146,410 won, the first year value-added tax for the second year of 1998 to 124,608,800 won, the first year value-added tax for the second year of 1999 to 224,503,150 won, the second year value-added tax for the second year of 1999 to 254,141,430 won, the first year value-added tax for the second year of 200 to 235,81,240 won, the second year of 200 to 250,17,500 won, and the second year of 200 to 250,2507.

(c)other income tax;

After the above tax investigation, the tax authorities imposed on September 1, 2001, the tax authorities imposed on the Corporation KRW 165,048,570 for other income tax in 1996, KRW 314,661,770 for other income tax in 197, KRW 625,245,940 for other income tax in 198, and KRW 822,504,440 for other income tax in 199, and KRW 964,498,630 for other income tax in 200.

(3) Determination of a decision of reduction ex officio by a tax authority

On September 1, 2001, the Corporation filed a request for review against the Commissioner of the National Tax Service for the determination of increase in corporate tax for each business year of 196, 1997, and 1998, and the Commissioner of the National Tax Service made a request for review on the determination of partial acceptance of the request for review of corporate tax on July 25, 2002, the Yeongdeungpopo Tax Office corrected corporate tax on September 1996 as KRW 16,261,962,218, and KRW 635,987,518, and corporate tax on the business year of 1998 as KRW 66,916,195, respectively.

(4) The tax authority's disposition to rectify the increased corporate tax

With respect to the corporate tax for the business year 1997 and the business year 1998 as of September 1, 2001, as well as the disposition of correction of corporate tax for the business year 1996 and the disposition of correction of corporate tax for the business year 1996, the tax authority re-issued corporate tax for the business year 23,289,421,000 in corporate tax for the business year 1997 by classifying the amount of income belonging to the profit-making business for each business year of 1997 and the amount of income belonging to the non-profit business for each business year of 1997 as of September 1, 201, and then re-revision the corporate tax for the business year 1998 by the same method as of March 16, 2004, as of March 7, 2005, the corporate tax for the business year 19993,32,000,000 won.

(f) Tax litigation;

(1) The institution and progress of the corporation;

With respect to a request for reduction or correction of a corporation and a disposition of rejection or correction by a tax authority, H attorney-at-law submitted to the Corporation a written opinion 3) and emphasized the necessity of filing an administrative litigation to refund corporate tax and value-added tax. The Corporation accepted its opinion and filed an administrative appeal against the Seoul Administrative Court about the disposition of rejection of reduction or correction of corporate tax and value-added tax and the disposition of ex officio correction of increase or correction by the tax authority from September 1999 to May 2004. 4) The Seoul Administrative Court sentenced 16 cases among them from April 25, 2002 to August 30, 205. The detailed details are as stated in the attached Form 2 tax litigation proceeding (hereinafter referred to as the "tax litigation of this case").

(2) Summary of the judgment of the first instance court rendered among the instant tax litigation

(A) Judgment in favor of the Corporation

1) In the first instance court of the instant tax lawsuit, the Corporation won the lawsuit revoking the disposition of imposition such as seven corporate tax, etc. (5). The court held that the corporation is obligated to pay corporate tax only for the amount of income generated from profit-making business, as the corporation runs an advertisement business, along with the broadcasting business, which is a proper purpose business (the assertion that the corporation must calculate the tax base by deducting all deductible expenses incurred during the pertinent business year from the total amount of income generated during the pertinent business year, excluding receiving fees, on the premise that the corporation runs only a profit-making business, which is an advertising business). (2) The corporation's business is classified by channel and operated as a profit-making business, and the operation of the I and J is not a non-profit business. (3) The corporation that operates a profit-making business and a non-profit business concurrently shall not be deemed a broadcasting business as a non-profit business. (4) The corporation did not perform its duty of separate accounting by classifying assets, liabilities, and profits and losses as belonging to the pertinent non-profit business, and the corporation's tax base shall not be determined as evidence.

2) In the first instance court of the instant tax lawsuit, the Corporation won the lawsuit seeking revocation of the imposition of value-added tax. (6) The court held that (i) A broadcast that is made by receiving fees from the Corporation shall be subject to the exemption of value-added tax under Article 7(3) of the former Value-Added Tax Act; (ii) A broadcast that runs its business cannot be deemed as a broadcast that is subject to value-added tax; and (iii) A broadcast that runs its business constitutes an advertising business that is also subject to value-added tax; and (iv) A broadcast that operates its business constitutes a taxable business that is subject to value-added tax; and (ii) A broadcast that calculates the input tax amount to be deducted from the corporation’s value-added tax amount, the input tax amount may be deducted as an input tax amount only if the tax amount of the goods or services used or to be used for an advertising business that is a taxable business under Article 17 of the former Value-Added Tax Act does not fall under the grounds for exception under paragraph (2) (i).

(B) Judgment against the Corporation

1) In the first instance court of the instant tax lawsuit, the Corporation rejected the lawsuit seeking revocation of a disposition rejecting the reduction of corporate tax for the purpose of filing a return on the grounds that the tax base and amount of tax filed by the taxpayer were erroneous in the tax base and amount of tax for the tax return method, the court held that the Plaintiff’s claim for reduction of the amount of tax for the purpose of filing a return on the grounds that the tax base and amount of tax filed by the taxpayer were erroneous and that the taxpayer is liable for rectification of the tax base and amount of tax filed by the taxpayer. ② In the instant case, it is reasonable to view that the Plaintiff asserted and raised the reduction of the amount of income through the deduction from the income from receiving fees, and the Plaintiff did not prove the amount of losses related to the advertising business, which is the Plaintiff’s profit-making business, out of the total amount calculated as deductible expenses in the calculation of the initial tax base and amount of tax for the business year 202 reported by the Plaintiff, and thus, the Plaintiff’s claim for reduction of the amount is groundless and legitimate.

2) In the first instance court of the instant tax lawsuit, the Corporation lost the lawsuit seeking the revocation of the disposition to reduce the amount of value-added tax for the said case (8). The court held to the effect that, in the reasoning of the judgment, “The Corporation’s first instance court and J constituted advertising broadcasts, and the remainder of the broadcast constitutes the supply of services without compensation to general viewers and audience, thus falling under the transaction of services subject to the imposition of value-added tax, and thus the input tax amount equivalent to the costs spent on the broadcast should not be deducted from the output tax amount. As such, the legitimate value-added tax amount to be paid by the Corporation on the basis of the cost report exceeds the amount already

3) Meanwhile, in the first instance court of the instant tax lawsuit, the revocation lawsuit against the revocation of the rejection disposition against the reduction of corporate tax and the second revocation disposition against the reduction of value-added tax filed by the Corporation, the court is illegal as having set the deadline for each request against the tax authority of the Corporation for the reduction of value-added tax, and thus, the Defendant’s rejection disposition against each of the correction was lawful.

(g) Details of the countermeasures against construction works and the progress of conciliation following the progress of tax litigation;

(1) The response of the Corporation to the tax lawsuit

(A) On March 19, 203, when the tax litigation of this case was in progress, the Corporation held a meeting on March 19, 2003, on behalf of the president who is holding a meeting for each case on March 19, 2003.

(B) After the Defendant assumed office as the president of the Corporation on April 25, 2003 and around July 2003, the Defendant received from P, a person in charge of tax litigation, a report on the progress of a lawsuit for refund, including corporate tax, and a report on a plan for future measures. The content of the administrative litigation case is based on the Supreme Court Decision 98Da47184 Decided that the case is based on the "report on the progress of a lawsuit for refund, such as corporate tax, and the plan for future measures." In this case, it is presumed that the possibility of winning the case is only time problem, and that the expected amount of the refund, including the refund interest, will be much more than 30 billion won, and this is based on the opinion of H attorney.

(C) On December 11, 2003, the Defendant organized a tax litigation operation team (hereinafter “tax litigation team”) within the Corporation’s policy planning center with Q Q as the team leader for a limited period of one year in order to effectively perform the tax litigation affairs in which P was mixed.

(D) According to the position that the tax authority would give additional notice to the Corporation about KRW 60.9 billion of corporate tax for the business year 1998 through 2000, the Defendant organized a tax litigation T/F team of the nature of the meeting (hereinafter “tax litigation T/F team”) on February 26, 2004, and the tax litigation T/F team held the first meeting on February 27, 2004, while the Defendant did not attend the meeting. The above meeting shows that the National Tax Service will give additional notice at the beginning of March, but prior to the additional notice, the president, the head of the policy planning center, and the news gathering one week can request the Commissioner of the National Tax Service to postpone the imposition of taxes until the judgment is completed, and consultation with the National Tax Service in order to ensure that the lawsuit in the pending trial may be held promptly.

(E) On March 16, 2004, when the tax authority imposed approximately KRW 6.7 billion as corporate tax for the corporation on March 16, 2004, it decided that the corporation held a policy coordination meeting on March 22, 2004, where the vice president, six chief directors, five chief directors, etc. gather, and "after paying the single corporate tax, take legal countermeasures, and undergo the verification process to hear the objective opinions of the third experts."

(F) On March 31, 2004, P retired from the retirement age from the Corporation. At that time, R was appointed as the head of the tax litigation team, and Q was changed to the position as the team leader.

(G) On April 23, 2004, 2004, 18 members including Defendant, etc., who are the president, held the second meeting, and the said meetings discussed the following:

(1) At present, a tax suit against a construction project shall be operated by a system other than a specific department or an individual, as a matter requiring in-depth countermeasures.

(2) It is necessary to develop a reasonable logic that can be understood in the opposite party or inside company, not unilaterally claiming the response logic of our side.

③ It is necessary to review whether there is any problem in the theory of response that has been argued so far, and prepare detailed contents of the future response plan and present it to the TPP.

(4) The impacts of the failure of litigation on the company shall be analyzed and dealt with.

(5) Even if winning the National Tax Service, the possibility of dispute with the National Tax Service remains continuously, so it shall be examined as to whether there is no part of dispute.

(h) On April 30, 2004, the tax litigation T/F team held the third meeting while the 16 members, including the Defendant, were present, and the following matters were discussed at the above meeting:

(1) The tax litigation team needs to resolve pending issues in parallel with litigation.

(2) It is necessary to prepare clear understandings and countermeasures against the separate accounting, which is a major issue of corporate tax.

(3) It is necessary to fully explain the conflict between corporate tax and value-added tax arguments.

(4) The possibility of determining receiving fees as non-taxation shall be examined through the Enforcement Decree of the Ministry of Finance and Economy.

On the other hand, the defendant at the meeting above, "the tax litigation team shall not be bound to concentrate on the lawsuit, but shall sufficiently open the possibility of negotiations for the prompt resolution of the case, and shall seek various approaches. The National Tax Service has proposed that both working-level forces in relation to the pending issues be able to solve the problem. This problem should be promoted so that this problem can be settled down within the first time. Although our arguments are asserted that it is impossible to keep separate accounting, it is basically a view that it is inevitable to keep separate accounting for expenses according to the rate of income. However, the detailed response strategies and practical decisions should be promoted at the tax litigation team, and the RP head made a statement to the effect that "The tax litigation team should actively examine whether there is any room for compromise with the National Tax Service in the existing litigation strategy."

(i) On May 6, 2004, the Defendant expanded the tax litigation team within the Corporation into the R, AD, Q, AE accountant, and AF attorney-at-law as the team leader (hereinafter “tax planning team”).

(j) On May 10, 2004, the tax litigationT/F team held the fourth meeting in the presence of 12 persons, such as the vice president of AG on May 10, 2004, and the said meeting discussed the following:

(1) The tax planning team shall examine whether to resolve pending issues of tax litigation by amending the Act, and the viable bills, etc.

(2) separate from the litigation strategy, the proposals presented on our side shall be presented to the T/F meeting later by developing the possible negotiations and analyzing the expected ripple effects, etc. on the construction.

(2) Coordination consultation between the corporation and the tax authorities

(A) On May 204, the head of the R tax planning team explained the purport of AH of the Seoul District Tax Service, which was in charge of a lawsuit related to the corporation's corporate tax, around June 4, 2004. On June 4, 2004, AH performed separate accounting of the corporate tax for future expenses, and on the basis of the revenue from advertising fees and receiving fees, the common expenses of profit-making business and non-profit business except direct expenses shall be calculated in accordance with the above criteria, and upon compliance with the above criteria, AH refused to accept it as a disciplinary issue, such as a disciplinary action against the relevant public official, in the event of a refund of the corporation's corporate tax already imposed on the existing corporation or paid by the corporation.

(B) On July 2004, the head of the R-Tax Planning Team prepared a report on the current status of carrying out the tax-related affairs by internal documents of the public corporation (the date of the investigation record No. 2280). The contents of the report are as follows: (a) while carrying out negotiations with the tax authority on the direction of tax litigation, actively responding to the lawsuit; and (b) furthermore, according to the interim negotiation proposal proposed by the tax authority, the Corporation has a tax reduction effect equivalent to approximately KRW 98.4 billion for the corporate tax between the 1993 and 2003 business years, according to the interim negotiation proposal proposed by the tax authority. Meanwhile, the provisional mediation proposal included the contents of the provisional mediation, including the No. 2 or No. 8 of the details of the tax litigation proceeding of the attached Form No. 2 until the time when the above provisional mediation proposal was presented, the Corporation won only 3 and 4 times.

(C) On August 20, 2004, the head of the R-Tax Planning Team reported the future promotion plan of the tax lawsuit to the defendant on August 20, 2004 by the document of "report on the promotion plan related to the tax affairs and the document of "(the investigation record No. 2307)". The above report began to appear additionally with the terms of "consultation, but the contents of the report are similar," and "resolution method other than the litigation" written around July 2004. Meanwhile, the decision of the first instance court was additionally sentenced to 7 cases such as the No. 9 or 15 of the details of the tax lawsuit in attached Form 2, and the Corporation won the case in six of them.

(D) On October 1, 2004, R drafted an internal document (as of October 1, 2004, No. 2343 of the Investigation Record) on the construction project title, including the content that “the competent authority would be adequate to resolve the methods of consultation and coordination of corporate tax with the corporation through the court for conciliation.”

(E) On November 2, 2004, through the internal review as above, the Tax Planning Team of the Corporation asked the National Tax Service's questions concerning the Corporation's tax administration on November 2, 2004, which contained the following questions, but did not receive any reply from the National Tax Service.

In accordance with the separate accounting obligation of a nonprofit corporation, in calculating and paying the amount of tax for the calculation of individual gross income of profit-making businesses and common gross income distributed for individual deductible expenses and for profit-making businesses, i) individual gross income shall be considered as the revenue of revenue under the income statement of the corporation as the individual gross income of profit-making businesses; ii) individual gross income shall be designated as the sales revenue of the corporation excluding receiving fees as the individual gross income of the profit-making businesses; and ii) individual gross income shall be designated as the sales revenue of the corporation as the individual gross income of the profit-making businesses; and iii) other items of profit-making income and tax adjustment under the income statement of the corporation as well as the expenses for profit-making business and the expenses for the entrusted collection as the individual gross income of the profit-making business; and in view of the common gross income

(F) Meanwhile, the head of the R tax planning team found H attorney-at-law at the time of the questioning and explained the progress of the conciliation consultation among him/her, and expressed his/her opposition to the conciliation. However, R did not report the response of H attorney-at-law to the Defendant.

(G) On February 24, 2005, the tax planning team reported to the effect that, upon the request of the board of directors of the corporation, the tax planning team collected approximately KRW 25.5 billion of corporate tax for the business year 1997, KRW 7.4 billion of corporate tax for the business year 1997, and KRW 7.4 billion of corporate tax for the business year 1994, and in the future, the corporate tax for the business year 1999 and the business year 2000 was expected to be collected. The failure rate of tax lawsuit until the time is similar to the failure rate of lawsuit due to the court circumstances, and the corporation has delayed litigation and has a significant negative impact on the finance as long as the lawsuit becomes prolonged, it will make efforts to resolve the pending issues to the maximum extent possible, centering on the tax planning team in the direction of maximize the public interest."

(h) As a result of the tax investigation conducted on March 7, 2005 in 2001, the tax authority notified that the corporation will impose corporate tax (as of March 2, 2005 notice) of KRW 33,332,00,000 (as of March 2, 2005) on the corporate tax (as of March 31, 2005) for the reason that the excess amount of the reserve fund for the proper purpose business was generated due to separate accounting on the corporate tax for the business year 1999 of the corporation.

(i) On March 14, 2005, the head of the R-Tax Planning Team prepared a document stating "report on the current status of promotion related to the tax litigation" (Article 2371 of the Investigation Record) and "report on the plan for additional disposition of the corporate tax for the business year 1999" (Article 2379 of the Investigation Record), and the former reviewed only within the tax planning team and reported it to the Defendant.

(3) The preparation process for the application for the conciliation of the Corporation;

(A) On March 25, 2005, H attorney received an inquiry from the head of the R-Tax Planning Team to seek an opinion on the conciliation along with the documents called "a summary of the proposal of the Tax Planning Team of the Corporation", and notified the Corporation of its opinion of opinion on whether or not there was a practical benefit in the consultation about the tax litigation, such as corporate tax, to the effect that H attorney objects to the conciliation plan of the Corporation.

(B) On April 14, 2005, Q of the Tax Planning Team asked an inquiry about the interpretation of the existing attorney's contingent fee agreements with AI lawyers on the interpretation of the contract, and AI attorneys paid contingent fees in consideration of the circumstances leading to Q's mediation on the 21st of the same month, and in the event that the attorney-at-law refuses the request for mediation of the corporation, the attorney-at-law may terminate the delegation of the lawsuit, and even in this case, the part of the contingent fees should be paid. (Investigation Records No. 2385).

(C) On April 2005, the Tax Planning Team of the Corporation sent a written request to AK Accounting Officer, the representative director of AJ (hereinafter referred to as the "A"), along with the "Tax Office's consultation proposal," and at this time AK Accounting Officer sent a written request for consultation on the tax litigation of the Corporation on April 4, 2005 and 28 (the investigative record No. 2453).

(D) On April 2005, the Corporation issued R, which was the head of the tax planning team at the time, to transfer them to the labor-management cooperation team leader, and issued Q, which was the tax planning team leader, to the tax planning team leader.

(E) Around May 2005, Q prepared the documents stating that "where corporate tax is adjusted only in accordance with the previous policy, the adverse effects in the lawsuit of value-added are higher, and if the entire input tax amount is calculated in proportion to the ratio of revenues from advertising fees and receiving fees as corporate tax, as in the lawsuit of value-added tax, it would offset the effect of corporate tax, and thus, it is necessary to simultaneously adjust the corporate tax and value-added tax." (The Investigation Record No. 2469).

(F) On June 2005, the tax planning team of the corporation presented a comprehensive plan for corporate tax and value-added tax en bloc to the tax authority, but the tax authority showed only the level of response that simply recognizes the construction position.

(G) On June 16, 2005, Q divided the opinions on the proposal of the construction project and the fees discussed between H attorney-at-law. In this context, Q asked Q was about how to re-disposition in the manner of estimated taxation even though the tax authority participated in the tax lawsuit, and Q asked Q attorney to the effect that " how to enforce the law even in the case where the tax office is entering into the law."

(h) On June 23, 2005, the Tax Planning Team of the Corporation, the president of the Corporation, requested the Defendant, who is the president of the Corporation, to file an application for the court conciliation on the grounds that the result of the tax litigation up to the present date is six 9 degrees from the viewpoint of the Corporation, and that both arguments and the judgments of the court are different from each other, and the Supreme Court is expected to proceed to a lawsuit. Thus, even during the proceeding of the lawsuit, the tax authorities will impose the corporate tax, etc. for the pertinent business year, and even during the proceeding of the lawsuit, the tax authorities will impose the tax collection of the corporate tax, etc. for the pertinent business year. Although the prospect of the lawsuit is infinite, it is possible to impose the tax by the method of estimated investigation, and ultimately, even if the Corporation has won the final winning, it is likely that the lawsuit might be conducted by the means of estimated investigation, and the tax authorities' additional collection of the case needs to resolve the lawsuit promptly."

(i) On July 5, 2005, H attorney argued that it is difficult for the person in charge of the tax office to re-tax the request for the above adjustment application by the Corporation, and that for corporate tax and value-added tax from 1995 to 2000, it cannot be re- collected after the lapse of the exclusion period in accordance with the purport of the Supreme Court Decision 2004Du11459 Decided February 25, 2005, H attorney provided a reply to the purport that " there is no benefit from the Corporation's request for adjustment."

(j) On July 11, 2005, the Corporation demanded H attorneys to file an application for conciliation with the next court (No. 2488 of the Investigation Record). However, H attorneys sent reply to the purport that there is no practical benefit in the Corporation’s request for conciliation on the grounds that the Corporation’s report on value-added tax after July 15, 2005 was legitimate to be in accordance with the amendment of the Enforcement Decree of the Value-Added Tax Act, around December 2000, since it is not necessary for the Corporation to bring about concern thereof.

(k) Meanwhile, around July 19, 2005, the Corporation appointed AF, an in-house lawyer, as a joint agent of a tax lawsuit, and notified H attorneys of the fact.

(l) On July 13, 2005, the Tax Planning Team prepared and reported the progress of the pending issues and the countermeasure report (No. 2495 pages of the investigation record) to the effect that the defendant partially revised the mediation plan, such as accepting the reasoning of each judgment of the first instance against the public corporation.

(iv)a request for conciliation to the Seoul High Court and a court’s conciliation recommendation;

(A) On July 18, 2005, the Corporation submitted an application for the designation of the conciliation date to the Seoul High Court, the appellate court, the Seoul High Court, the Seoul High Court in charge of tax action, and the Special 7, the Seoul High Court. On August 23, 2005, when it did not receive a positive answer from H attorney on the application for the designation of conciliation date, and submitted a written opinion on the conciliation that "the Corporation shall refund the amount of corporate tax paid by the tax authority for the business year 1996, 1997, 1997, and 12,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,00

(B) On August 26, 2005, the Corporation appointed a law firm AL (AM) as a joint agent for tax litigation and concluded a contract for delegation of a lawsuit with 30 million won for contingent fees (70% payment of contingent fees at the time of establishment of mediation reflecting the intention of the Corporation, and 30% payment of contingent fees at the time of establishment of mediation within the end of October). On September 13, 2005, the Corporation notified H attorney-at-law of his written opinion on the adjustment of the corporation and appointment of joint representative, and finally notified H attorney-at-law to the effect that the contract for delegation of tax litigation with H is terminated.

(C) On September 14, 2005, the board of directors of the Corporation decided that if the final judgment of the court was made at the place of the meeting, it should proceed more over several years in the future, and even if the final judgment was made, specific taxation methods have not been presented, so it would be difficult to continue a tax dispute between the Corporation and the National Tax Service, and that it would be desirable to resolve the decision of the court's recommendation rather than to expand the unnecessary tax dispute.

(D) On October 12, 2005, the Seoul High Court of Seoul High Court, the appellate court of the tax lawsuit, opened the first date for the first conciliation of the tax lawsuit, and tried to hear the opinions on the future recommendations for the conciliation, and then then sent a recommendation for conciliation to the public corporation and the tax authorities for the prompt resolution of the dispute concerning corporate tax in which the contents of the “written opinion on the conciliation of the public corporation on August 23, 2005” are reflected. The details of the recommendations of the court related to corporate tax are as follows.

(1) The head of Yeongdeungpo-gu Tax Office shall cancel the disposition of imposition of KRW 15,922,923,594 in corporate tax and special rural development tax for the business year 1996 on September 1, 2001 with respect to the Corporation, the disposition of imposition of KRW 23,289,421,00 in corporate tax and special rural development tax for the business year 1997 on March 3, 2003, the disposition of imposition of KRW 23,289,421,00 in corporate tax and special rural development tax for the business year 1998 on March 16, 2004, and the disposition of imposition of KRW 6,729,735,880 in corporate tax and special rural development tax for the business year 1998 on March 16, 2

(2) The corporate tax amount to be paid by the Corporation after the date of recommendation for adjustment shall be determined by the Corporate Tax Act and the head of Yeongdeungpo District Tax Office shall ask the head of Yeongdeungpo District Tax Office to determine the appropriateness of the assessment standards and shall respond to it.

(3) If the above disposition is revoked or a decision of refund is made, the Corporation shall withdraw the lawsuit, and the head of the Yeongdeungpo District Tax Office shall consent thereto.

(E) On October 26, 2005, after the 508th regular meeting of the board of directors, the board of directors of the Corporation did not accept the argument of the Corporation in the purport of the initial lawsuit from the tax planning team in fact. However, even if the Supreme Court's decision is made in this state as a matter of the burden of proof of expenses (purchase tax amount), the detailed criteria for calculating costs (purchase tax amount) are not presented. Therefore, it is desirable for the tax authorities to set the tax payment standards through the court's conciliation function as a matter of concerns such as the prolonged circulation of lawsuits and additional additional additional additional collection of corporate tax that are likely to be expected to impose and collect taxes on a new basis, and to bring a lawsuit again, it is desirable for them to set the tax payment standards through the court's conciliation function."

(F) On the other hand, on October 31, 2005, P submitted a petition to the Commissioner of the National Tax Service on the above mediation movement, and adjusted the construction because there is no possibility of winning the petition. If this is true, P would have to refund the tax that would not have to be refunded because it is possible to win the registration book, and the Corporation would evade the tax that is to be paid lawfully, so it is necessary to take measures to prevent such a situation from occurring."

(G) On November 2, 2005, the Seoul High Court, the appellate court of the tax lawsuit, set the second adjustment date, sent a recommendation on the adjustment of value-added tax to the Corporation and the tax authorities following the date, and the details of the recommendation on the adjustment related to value-added tax are as follows.

(1) Where computing the legitimate value-added tax payable by the Corporation after the date of recommendation for adjustment of this case, the input tax amount irrelevant to the taxation of the Corporation shall be the input tax amount under the grounds for non-deduction of the input tax amount under Article 17 (2) of the Value-Added Tax Act and the input

(2) The Corporation shall correct and pay the corrected value-added tax amount, etc. paid during the preceding period from 1996 to 2005 by applying the value-added tax calculation standards under paragraph (1) and only where any additional tax payable occurs.

(3) The Corporation shall withdraw the lawsuit of this case immediately after the procedure under the above paragraph (2) is completed, and the director of the Yeongdeungpo District Tax Office shall consent thereto.

(h) On November 9, 2005, the board of directors of the Corporation reported "the progress of tax-free litigation conciliation by the Tax Planning Team" from the Tax Planning Team in the interim society on November 9, 2005 (Investigation Records No. 2566 pages).

(5) Examining the validity of the recommendations for mediation

(A) On October 14, 2005, the Seoul High Court 5 Special Division 1, 2005, the first adjustment date of the tax planning team of the corporation sought advice on the promotion of the court adjustment related to tax litigation to the law firmN (AO) under the direction of the defendant. On October 22, 2005, the tax planning team of the corporation sought advice on the tax litigation from the law firmN (AO) and on October 22, 2005, in the case where there is no conviction that the dispute would be settled ultimately even if not only the possibility of winning the lawsuit but also the winning case, the position of the corporation to terminate the case was the most appropriate decision for the prompt and reasonable resolution of the dispute. The head of the tax planning team reported the above response to the defendant to the law firm law firm as above.

(B) On November 4, 2005, after the Seoul High Court's recommendation for adjustment of the value-added tax was made, the audit team of the Corporation separately from the tax planning team on November 4, 2005, after which the Seoul High Court's recommendation was made, requested an external legal advice on tax adjustment related to the law firm AP (AP, AR), including whether it is impossible to conduct an additional investigation according to the reasoning of H attorney-at-law listed on the public corporation's bulletin board, and the law firm AP presents a written opinion that included the possibility of winning the tax litigation and the cost of litigation, and whether it complies with the adjustment should be determined by the Corporation after considering the circumstances such as the possibility of subsequent success in the tax litigation and the possibility of subsequent disputes. On November 10, 2005, the AS law firm has changed the possibility of changing the success in the tax litigation and whether it is possible to accept the proposal of mediation.

(C) On October 2005, the issue of mediation was discussed on the bulletin board of the corporation, and the tax planning team requested a daily audit of tax adjustment from November 1, 2005 to April 14, 2005, the audit office of the corporation conducted a daily audit. Under the judgment that the audit team's AU is possible to conduct a preliminary investigation, and the audit team's AU may continue to be collected even if the corporation won the case, in writing, the result of the legal advice request for each of the above legal advice requests of the law firm AP and AS is summarized as a summary of the results of the legal advice request of the law firm AP and AS, and whether to accept the recommendation is a policy decision by the management, but it is possible for the corporation to make a decision by estimation, and there is a possibility that the burden of proving the reduction request for tax adjustment will reduce if it complies with the adjustment, and therefore it is expected that it will be a realistic alternative to respond to the tax adjustment.

(D) Meanwhile, the tax authorities also filed a report with the purport that the AW legal office AX attorney-at-law, who is the legal representative, requested a legal review of the Seoul High Court's recommendation, received the review of the Seoul High Court's recommendation from the 2005, Nov. 14, 199, and AX attorney's review of the Seoul High Court's recommendation, and around that time, the tax authorities also summarized this internal summary, which might have been lost by the State in the second instance, and may have a high possibility of loss in the second instance due to the lack of estimated taxation, it is reasonable

(6) Acceptance of proposed court adjustment recommendations by the Corporation and the tax authorities, and withdrawal of the corporation's lawsuit

(A) On November 16, 2005, the Corporation decided to accept the proposed mediation recommendation of the court through the 710th management conference (the investigative record No. 2611), notified the Seoul High Court in charge of the same day of its intention to accept and at the same time asked the Commissioner of the National Tax Service about the corporate tax calculation criteria.

(B) On December 27, 2005, the tax authorities also notified the court department in charge of the internal procedure that they accept a recommendation for mediation concerning the value-added tax on the 30th of the same month.

(C) On December 29, 2005, the Corporation received a refund of approximately KRW 5.6 billion from the amount of corporate tax collected until the business year 1998 including the amount of refund interest, but the Corporation actually received a set-off of KRW 3.3 billion from the amount of corporate tax collected in the business year 1999, scheduled for the payment period of 2005, and transferred the amount of KRW 17.8 billion to the corporate account. On January 5, 2006 and January 24, 2006, the Seoul High Court submitted a written withdrawal of tax litigation to the Special Division 5 of Seoul High Court.

(D) On March 7, 2006, the Corporation asked the Commissioner of the National Tax Service of questions as to the corporate tax assessment standards based on the court’s recommendation. On March 24, 2006, the Seoul Regional Tax Office sent to the Corporation a reply to the criteria for separate accounting of corporate tax to the effect that: (a) common deductible expenses incurred by the Corporation in conducting broadcasts based on the receipt fees and the receipt of advertising fees shall be calculated in proportion to the income of the relevant receiving fees and the relevant advertising fees in accordance with Article 76(6) of the Enforcement Rule of the Corporate Tax Act; and (b) individual gross income or deductible expenses shall be determined based on the actual use and character of the revenue and expenditure.

(E) The tax authority decided to refund the amount of corporate tax collected by the Corporation for the business year 1999 and its additional interest to KRW 33.3 billion, which was paid by the Corporation, and refunded to the Corporation on April 19, 2006.

(hereinafter referred to as the "Adjustment of this case") which is conducted between the Corporation and the tax authorities under the same circumstances.

(h) Management status of the Corporation and relationship with a trade union;

(1) Since the establishment of the Corporation, approximately KRW 2.7 billion in 1979, approximately KRW 1.3 billion in 1980, KRW 7.8 billion in 1981, KRW 14.4 billion in 1988, KRW 1998, KRW 58 billion in 1998, and KRW 63.8 billion in 2004, and the remainder of the fiscal year was recorded by the Corporation. On the other hand, the ratio of revenues, such as receiving fees, was 4:6 on average, but the overall amount of advertising fees decreased.

(2) On April 27, 2005, at the 496th regular meeting, the Corporation incurred a three-yearly loss of KRW 36.7 billion in the first quarter of 2005. The major person was to have generated KRW 36.6 billion in comparison with the goal of advertising revenue performance, corporate tax delay, etc. ② Net loss of KRW 81.4 billion in the preceding year (excluding the estimated corporate tax delay, KRW 36.6 billion in the amount of KRW 4.4 billion in the amount of KRW 4.5 billion in the amount of the business expense, KRW 19.8 billion in the amount of the business expense, KRW 19.8 billion in the amount of the business expense, KRW 13 billion in the amount of the business expense, ③ The Corporation was not able to have reported that it would be difficult to secure that it would have been out of the board of directors. (4) The major person was to have reported that it would have been out of the last year of the corporate tax year, and that it would not have been 1.6.4 billion in the annual budget delay.

(3) The Defendant, who is the president of the Corporation, announced a management innovation proposal on June 1, 2005 for the purpose of improving the management status (hereinafter “Investigation Records”) (No. 3310 pages 15).

(4) In the temporary representative meeting held on June 14, 2005, the labor union of the Corporation (hereinafter referred to as the "labor union") passed a resolution to the effect that the present crisis of the Corporation is not a simple financial person, but a management shall take the responsibility in the form of resignation to overcome a public crisis and a crisis, and if this is premised, he may participate in the burden of suffering from labor union. The contents of the resolution have been supported by 65% of the representatives.

(5) On June 15, 2005, the executive branch of the Trade Union and Management of the Corporation, the president of the Trade Union and Management of the Corporation, had been an opportunity to explain the resolution of the Congress at the board of directors of the Corporation. AZ, who attended the board of directors, was aware that the 65% of the members of the Trade Union and Management Group, who had been attending the board of directors, shall be held liable for the form of resignation before the 65% of the members of the Trade Union and Management Group, bears the responsibility for the type of resignation. This is because it is difficult for the president to repeat the insolvent management if the 65% of the members of the Trade Union did not assume the responsibility for the insolvency management. In addition, it does not require that all the managers have to leave the office. Only all the persons responsible for the overall crisis of the BA should be held liable for the form of resignation even if they have retired to the minimum number of employees. It is a statement to the effect that the management is a member of the Trade Union and Management to the effect that the 's members may have been suffering from crisis'.

(6) On June 20, 2005, the Trade Union and Labor Relations Adjustment Committee commenced farming before the president's office in order to accomplish its purport. On July 5, 2005, the president of the Trade Union and Labor Relations Coordination Committee started voting from July 15, 2005, and started voting from July 19, 2005.

(7) On July 22, 2005, the Defendant drafted a written agreement with AZ, the chairman of the labor union management committee, around 18:00, a time prior to the ballot counting commencement, and the chairman of the labor union operation committee ceased planting. However, on the same day, the agreement was also drafted simultaneously with the above agreement, but the agreement was disclosed, but if the agreement was disclosed, it was not disclosed under both agreements.

(8) On August 17, 2005, the Corporation held a provisional directors' meeting on 504 occasions. The defendant, the president of the Corporation, reported to the effect that "the result of advertising revenue was less than 3.7 billion won in comparison with the target, and the result of advertising revenue was less than 3.6 billion won in comparison with the corporate tax in 1999 as the main cause for the delay of corporate tax in 11.2 billion won in the second half, and that "the losses are expected to occur in the second half of the year." On November 9, 2005, the provisional directors' meeting was held on 5.7 billion won in the second half of the year, and the defendant was expected to suffer in the second half of the year, "the result of advertising revenue was less than 5.1 billion won in comparison with the target, and the result of the execution of the three/4 quarter in 2005 was less than 3.6 billion won in the second half of the year prior to 1999."

(9) According to the settlement of accounts for the fiscal year 2005 that was compiled by the Corporation around February 2006, there was a black person with approximately KRW 57.6 billion calculated by subtracting KRW 1.1 billion corporate tax costs from KRW 53 billion for advertising fees, KRW 53.6 billion for receiving fees, KRW 524.6 billion for current net income, and KRW 57.6 billion for current net income from KRW 58.7 billion for current net income.

(i) Other matters.

(1) From September 6, 2005 to September 8, 2005, BC published an article about how the Corporation intends to resolve the case through a recommendation for adjustment in a tax lawsuit. Among them, the content of BC’s assertion, such as “a waiver of KRW 150 billion out of the corporate tax and value-added tax refund,” “a waiver of the application for adjustment shall be made in favor of the first instance court,” “a waiver of the amount of KRW 150 billion from among the refund of the corporate tax and value-added tax,” “a waiver of the application for adjustment shall be made in the form of a license fee every year from the time when the application for adjustment is accepted,” and “the receiving fee shall not be the amount of the revenue that is defined as a special charge by the Constitutional Court, so it shall not be re-calculated for the calculation of taxes,” etc

(2) Around September 13, 2005, the Corporation notified that it terminated the delegation contract of a tax lawsuit that it was performing by the Corporation on the ground that it was "a person entrusted with the duty of due care as a person entrusted with the duties of due care, such as refusing to request the adjustment of the Corporation, and considering the issues of the court adjustment promoted by the Corporation through BC article, it criticizes and leaks the policies of the construction related to the tax lawsuit," etc.

(3) On November 18, 2005, P brought a lawsuit claiming damages by defamation against the Defendant and Qua, etc., but it became final and conclusive to the effect of dismissing the lawsuit.

(4) The tax planning team of the Corporation was dissatised around 2006, April 4.

(5) On July 18, 2006, H attorney-at-law filed a claim for fees of KRW 1565,456,435 of the Seoul Central District Court case No. 2002Guhap3188 (the business year 1995 lawsuit seeking the revocation of the imposition of corporate tax) among the tax litigation of this case against the Corporation as the plaintiff on July 18, 2006. On October 9, 2007, the above court rendered a judgment in favor of the plaintiff that the Corporation would pay KRW 20 million to the law firm BD (the above court Decision 2006Gahap61265). On November 5, 2009, the Seoul High Court rendered a judgment in favor of the plaintiff on the part of the court below that the corporation would pay the same amount to the law firm that is the succeeding intervenor of BD to the law firm as of November 19, 207 (the above Supreme Court Decision No. 2001Da12038139, Feb. 200139).

(6) Meanwhile, on August 8, 2008, H attorney-at-law filed a lawsuit seeking the payment of KRW 7,045,807,134 of the fees for the remainder of the tax lawsuit that the said law firm acquired by the said law firm against the Plaintiff as the Plaintiff. As to this, the Seoul Central District Court rendered a judgment in favor of the Plaintiff on October 21, 2009 that the Defendant would pay KRW 300 million to the Plaintiff (the above court Decision 2008Da77929). On June 4, 2010, the Seoul High Court, which was the appellate court, rendered a judgment that the Defendant would pay additional KRW 1.20 million to the Plaintiff (the above court Decision 2009Na15221), and the above case is pending as the final appeal of the Defendant by the Supreme Court Decision 2010Da52584 as of June 4, 2010.

(7) On August 11, 2008, the Defendant filed a lawsuit seeking confirmation of invalidity of a dismissal disposition against which he was dismissed with the Seoul Administrative Court. On November 12, 2009, the Seoul Administrative Court rendered a judgment in favor of the Plaintiff on August 11, 2008 that “The dismissal disposition for the president against the Plaintiff on August 11, 2008” was revoked, and the above case continues to be in existence with Seoul High Court 2009-36318 as of the date of both appeals.

3. Determination on the grounds for appeal

A. Main facts charged

The defendant is a person who has taken office as the president (three years of office) of the Corporation on April 25, 2003 and has been in office until August 11, 2008 and has overall control over all the management of the Corporation, including personnel affairs, funds, and accounting affairs.

As a non-profit corporation established by the Broadcasting Act (former G Act), major revenue sources have reported and paid corporate tax and value-added tax on revenues from receiving fees for broadcasting services, as well as advertising fees.

However, from around 192 to 1992, the Corporation started a legal review to improve the previous tax payment practices that had paid corporate tax, etc. on the revenue of receiving fees from the standpoint that it is not subject to taxation as a quasi-tax with respect to the legal nature of receiving fees. In the inspection of state administration in 193 and 1994, the Corporation filed a claim for restitution of unjust enrichment with the Seoul District Court to the effect that the Corporation appointed H lawyer as a legal representative on November 1, 1997, and paid the fees to the State and Seoul Special Metropolitan City as a quasi-tax with the amount of tax paid by the Corporation from 1989 to 1994, since the fees are not the fees for broadcasting services, and thus the amount of tax paid by the Corporation to the revenue of receiving fees is legally null and void."

On August 14, 1997, the Seoul District Court rendered a judgment against the Corporation that the receiving fee for the above claim for return of unjust enrichment constitutes not a consideration for broadcasting service but a special charge for securing the cost of a specific public service business, which is a public broadcasting business, and its tax payment is unlawful. However, in light of the fact that the Corporation voluntarily paid taxes without any objection, and that the lawsuit was filed only when it was pointed out in the inspection of state administration, the previous tax payment is not necessarily null and void, and thus the Seoul High Court dismissed the appeal by the Corporation to the same purport.

In the first instance and second instance of a lawsuit seeking restitution of unjust enrichment, although the public corporation was rendered a judgment against the losing party, it was confirmed that "receiving fees are special charges not for broadcasting services, but for the payment of taxes on receiving fees," and that "the payment of taxes on receiving fees is illegal." In the course of the judgment, the public corporation decided to make a claim for reduction against the tax authority for corporate tax and value-added tax paid by including receiving fees in the tax base

Accordingly, the Corporation appointed H lawyer as a legal representative from September 1999 and requested for the reduction of corporate tax and value-added tax paid by the Corporation from 1993 to the time of the request by the head of Yeongdeungpo District Tax Office, the competent tax office, in order, filed an administrative appeal against the Yeongdeungpo District Tax Office on the disposition of rejection of reduction request.

Meanwhile, during the period from February 8, 2001 to June 19, 200 of the same year, the Seoul Regional Tax Office conducted a tax investigation for the business year of 1995 to 2000 of the Corporation. Based on the cost report prepared by the Corporation internal and internal, it classified the operation of the Corporation as advertising business, and classify only the expenses incurred in operating I and J as non-profit business, and then assessed only the expenses incurred in operating I and J as losses related to the advertising business and imposed the amount of corporate tax on the total amount of 4.5 billion won from September 196 to March 19, 2004 (the imposition of corporate tax for the business year of 1996 billion won, the corporate tax for the business year of 199 billion won, and the amount of corporate tax for the business year of 19.37 billion won for the business year of 2003 to 30 billion won for the business year of 19.37 billion won for the business year of 2003

The Corporation paid corporate tax amounting to KRW 45.9 billion on the disposition of imposing corporate tax under the name of the Yeongdeungpo District Tax Office in accordance with the tax investigation of the Seoul District Tax Office. On the other hand, the Corporation filed a lawsuit seeking revocation of the disposition of imposing corporate tax between November 2001 and May 2004 on the ground that it was unlawful to calculate corporate tax base based on the cost report, because the cost report against the Yeongdeungpo District Tax Office is not a separate accounting book.

As a result, the Corporation filed with the Seoul Administrative Court a suit against the director of the Yeongdeungpopo Tax Office on the reduction of the total amount of 17 corporate tax, value added tax, etc. from September 199 to May 2004 to the Seoul Administrative Court.

During the period from April 25, 2002 to August 30, 2005, the Seoul Administrative Court rendered a judgment on 16 cases of tax litigation. The details are as shown in the details of the progress of tax litigation in attached Form 2.

In the first instance of the tax lawsuit, the Corporation was sentenced to the winning judgment on the total amount of KRW 176.4 billion including corporate tax 134.8 billion (81.54%) and value-added tax 41.6 billion (61.35%). The reasons for the winning judgment were that even though the tax authority bears the burden of proof of legitimate tax base and tax amount, in the case of corporate tax, the corporation did not specify the deductible expenses related to the advertising business, which is profit-making business, and in the case of value-added tax, the input tax amount related to the advertising business, which is a taxable business, as a reasonable assessment basis, it cannot be deemed that the amount voluntarily reported and paid by the Corporation and the amount collected by the Corporation from the Corporation through a tax investigation,

The public corporation did not keep separate accounting of non-profit business and profit-making business due to the relationship in which the initial receiving fee was considered as the price for the broadcast service and the business was conducted. As such, the tax authority could not clearly specify the above deductible expenses and input tax amount in the higher court, and the possibility of re-determination of the tax amount by the estimation investigation method is almost rare due to the characteristics of the corporation, and the higher court also held that the public corporation's winning in the public corporation could be refunded at least KRW 176.4 billion in the case of the public corporation.

Therefore, the Defendant, as the president of the Corporation, shall faithfully perform the tax litigation in which the winning is clearly determined for the benefit of the Corporation, as above, and even in the case of concluding the tax litigation through coordination with the National Tax Service, a thorough examination of the possibility of winning the tax litigation of the Corporation, the possibility of re-taxation due to the estimated investigation, the rationality and validity of the proposal of mediation, etc., while requesting and coordinating the above matters to a specialized law firm, the tax accounting firm, etc. to review and coordinate it, if so, what proposal of mediation is most favorable and reasonable for the Corporation, was the occupational duty to preserve the profits of the Corporation by selecting the most favorable and reasonable proposal for the Corporation.

However, the defendant started to seek measures to refund only a part of the litigation amount and withdraw the lawsuit without conducting objective and reasonable legal review, because the defendant is expected to incur serious financial burden in 2004 and is likely to be held responsible for the insolvency of management.

In other words, the Defendant contacted with AH of the Seoul Regional Tax Office through R, the Tax Planning Board leader of the Corporation, for the purpose of resolving the financial difficulties of the Corporation from June 2004, and tried to obtain a refund of 98.4 billion won from the National Tax Service to the year 2003 and 45.9 billion won (excluding the period of refund) from the corporate tax paid voluntarily between 1993 and 2003, instead of accepting the corporate tax base claimed by the National Tax Service, the Defendant tried to terminate the tax litigation on the ground that the Seoul Regional Tax Office cannot make a refund of more taxes than the amount of corporate tax collected in addition to the amount of corporate tax collected in 45.9 billion won.

In the meantime, after the occurrence of the deficit of KRW 63.7 billion, which is the largest size in the history of the construction in the 2004 fiscal year, the elderly, and the defendant judged it as a serious business crisis and announced a management innovation proposal that includes the restructuring of wage reduction and high strength for the purpose of resolving the financial deficit on June 1, 2005. For this reason, the construction labor union started to conduct a management promotion campaign demanding the retirement of the management from June 7, 2005 to the employees, including the defendant, for the reason that the management crisis occurred due to the non-performance of the management including the defendant, and the matters concerning the management's responsibility were not mentioned.

The Defendant, at the time, could at least refund the winning amount to the first instance court when the Corporation continues the lawsuit due to high possibility of winning the lawsuit in the higher court, and the taxation standards of the corporate tax and value-added tax cannot be clearly specified due to the characteristics of the construction, and thus, the future taxation standards have no choice but to be determined through the amendment of the tax law or the consultation with the National Tax Service, and thus, notwithstanding no reasonable grounds to withdraw the lawsuit, the Defendant violated the above occupational duties as the president of the Corporation, and thus, in violation of the National Tax Service’s negotiation request. The Defendant exempted from the pressure from the retirement from the financial pressure due to the financial person by converting the year of 2005 fiscal year from the total amount of the corporate tax collected at 45.9 billion won, and tried to be successful in the reappointment of April 206 and April 200.

Accordingly, on June 23, 2005, the defendant filed a request with the court to submit a proposal to the Seoul High Court (Seoul Administrative Court, but hereinafter "Seoul Administrative Court") on July 18, 2005, which appointed AF, an in-house lawyer, as a tax litigation agent, to the effect that the tax litigation should be completed after being refunded only the amount of corporate tax collected by the National Tax Service as required by the National Tax Service, as required by the National Tax Service. However, H lawyer rejected the above request for mediation on the ground that the winning of the tax litigation is certain and it is virtually impossible to re-assessment of the tax due to the estimated tax investigation.

Meanwhile, from July 19, 2005, the Corporation's labor union imposed a non-Confidence vote on the defendant from July 19, 2005 to enforce the defendant's management ability and responsibility for the insolvency of management, and the non-Confidence proposal was anticipated to be resolved with the pressure support of the union members at the time of ballot counting. In this regard, the defendant, who caused the crisis, was the chairperson of the Corporation's labor union at around 18:00 on July 22, 2005, which was the time before the commencement of the ballot counting, was the employee for the occurrence of the management crisis, and the management manager at the 4/4th quarter of this year was elected to the agreement that "the general manager shall retire at the 4/4th quarter of this year."

Then, on August 24, 2005, the defendant submitted a proposal to the Seoul High Court to refund only 45.9 billion won of corporate tax collection and withdraw tax litigation through AF.

On October 13, 2005, the Seoul High Court has almost reflected the proposal of mediation submitted by the Corporation and sent the proposal of corporate tax adjustment to both parties on November 3, 2005, and in the process, the court has decided the proposal of mediation by reflecting the results of the consultation between both parties without almost participating in the mediation process.

Since then, the Corporation notified the above court on December 30 of the same year that it will accept the mediation recommendation proposal.

On December 29, 2005, the Corporation only refunded the corporate tax of 5.6 billion won (including the interest on the additional corporate tax of 45.9 billion won), including the interest on the refund from the Yeongdeungpo tax secretary, and withdrawn the tax lawsuit from the Seoul High Court on January 5, 2006 and on January 24, 2006.

Accordingly, the Defendant renounced the amount of KRW 244.8 billion (the winning amount of the first instance trial + the amount of KRW 176.4 billion + the amount of KRW 68.4 billion) that can be refunded through tax litigation without reasonable grounds, thereby having the State gain pecuniary benefits equivalent to the actual amount of KRW 189.2 billion (the amount of KRW 244.8 billion - 55.6 billion) which is the difference in the actual amount of refund, and had the Corporation inflict economic damages equivalent to the said amount.

B. Summary of the judgment of the court below

(6) The lower court determined that: (a) the method of calculating the amount of tax imposed on a non-profit corporation for the first time after 200,000 won was no more than the first time after 200; and (b) the method of calculating the amount of tax imposed on a non-profit corporation for the purpose of calculating the amount of tax imposed on a non-profit corporation for the reason that it is difficult for the corporation to conduct an additional tax investigation for the year 204, and that it was difficult for the corporation to conduct an additional tax investigation for the purpose of calculating the amount of tax imposed on a non-profit corporation for the purpose of calculating the amount of tax imposed on the non-profit corporation for the first time after 205, including the estimated amount of tax imposed on the non-profit corporation for the reason that it could not be seen that the non-profit corporation would be subject to additional tax investigation for the purpose of calculating the amount of tax imposed on the non-profit corporation for the first time after 200,000 won.

그러나 원심은, ① 비록 공사가 먼저 적극적으로 조정안을 제시하였다고 하더라도, 조정의 특성에 비추어 볼 때 이 사건 조정이 반드시 공사의 의사만으로 시작되었다거나 그 내용이 공사의 일방적 양보만으로 이루어진 것이라고는 볼 수 없으며, 특히 조정의 의의 내지 목적이라는 측면에서 볼 때 법원의 조정에 참여하는 과정에서 이루어, 진 행위로 인하여 업무상배임의 죄책을 부담시키는 문제와 관련하여서는 그 동기 내지 범의를 인정함에 있어 더욱 엄격하게 판단하여야 하는 점, ② 납세의무자인 공사의 입장에서 과연 공사가 최종적으로 승소판결을 받을 가능성이 더 많다고 인식할 수 있었는지 여부에 관하여 의문이 들 뿐 아니라 객관적으로도 공사의 승소 가능성이 50%를 넘는다고 단정 내지 확신할 수는 없다고 판단되는 점, ③ 이 사건 조세소송에서 공사가 판결에서 최종 승소하는 경우 과세관청이 다시 세액을 산정하여 과세할 수 있는지 여부에 관하여, 재조사를 통해 정당한 세액을 재부과할 수 있고, 특히 제척기간이 경과하였더라도 국세기본법 제26조의2에 의해 적어도 세액이 증가하지 않는 범위 내에서는 판결의 취지에 따라 재부과가 가능하다고 볼 여지가 있어, 납세의무자인 공사의 입장에서는 판결의 의한 분쟁의 종국적 해결이 어려울 수 있다는 생각과 소송의 반복으로 인한 유무형적 비용 증대를 방지하고자 하는 생각에서 이 사건 조정을 추진하였다고 볼 수도 있는 점, ④ 일반인의 법 감정에서, 공사는 비영리 공법인이라는 그 법적 성격상 국가 그 자체는 아니더라도 공적인 기관이며, 수신료의 법적 성격 또한 준조세적 성격이 있어, 공사가 조세소송에서 승소하기 위하여 각종 소송비용을 지출하면서 과세관청과 장기간 다투는 것이 과연 바람직한가에 대한 의문이 없지 않은바, 피고인의 입장에서 이러한 법 감정을 고려하였다면 일반 영리법인의 대표자와 같은 입장으로 공사에게 유리한 입장만을 고집하기는 쉽지 않았을 것으로 보이는 점, ⑤ 과세관청이 내부적으로 이 사건 조세소송의 전망을 어떻게 하였는지 여부는 공사가 납세의무자의 입장에서 예측· 판단하는 승소 가능성과 직접적인 연관성이 있다고 보기는 어려운 점, 6조정 시도의 시점 및 명목 등에 비추어 볼 때 그 시기는 경영부실 책임이나 이에 따른 노조의 경영진 퇴진 압박에 훨씬 앞서는 것일 뿐 아니라 조정을 하고자 하는 목적 역시 소송의 장기화 내지 분쟁의 계속 반복에 따른 공사의 부담을 감쇄하고자 하는 데에 있다고 보이는 점, ⑦ 검사는 무엇이 가장 합리적인 조정안인지 여부와 관련하여 그 내용을 제시하지 못하고 있으며, 오히려 공사의 입장에서는 나름대로 합리적인 과세기준을 마련하기 위하여 장기간에 걸쳐 과세관청과의 협의 및 과세관청에 대한 질의 등 과세관청과의 의견 조율을 거쳤고, 그리고 1년 이상의 내부 검토와 외부 법률 전문기관에의 자문 의뢰 등을 통하여 조정안을 마련하였으며, 결과적으로 공사는 재정적 어려움을 피하는 한편 향후 추징도 면하여 재무상태가 호전되었고, 나아가 이 사건 조정안의 내용에 명백히 불합리한 부분이 포함되어 있다고 단정할 만한 증거가 없는바, 이러한 사정을 감안하면 이 사건 조정안에 합리성이 결여되었다고 볼 수는 없는 점, ⑧ 공사가 이 사건 조정안을 제시하고 수용하는 과정은 공사가 내외적으로 많은 검토와 협의를 거쳐 수행한 것이라고 볼 수 있을 뿐이고, 이를 단순히 피고인 혼자 독단적으로 결정한 것이라고 말하기는 어려운 점, ⑨ 공사는 최종적으로 법원의 조정권고안을 수용하기까지 법률 전문가, 회계 전문가 등에게 충분한 자문을 구하였다고 볼 수 있으며, 각 자문 결과의 취지는 조정에 의한 조세소송의 종료에 긍정적 또는 최소한 중립적인 입장이었던 점, 1① 공사가 이 사건 조정안을 수용할 무렵 공사 사장인 피고인과 공사 노조와의 관계가 원만하였다고는 할 수 없으나, 노조가 피고인의 퇴진을 반드시 관철시키려고 하였다고까지는 볼 수 없고 또한 피고인이 공사 사장 재임이라는 사적 이익만을 추구하기 위해 무리하게 조정을 밀어 붙였다고 단정할 수도 없다는 점 등을 종합하면, 피고인이 조세소송을 법원의 조정을 통해 해결하려고 판단함에 있어, 합리적으로 가능한 범위 내에서 수집한 정보를 근거로 하여 공사가 처한 경제적 상황이나 그 행위로 인한 손실 발생과 이익 획득의 개연성 등의 제반 사정을 신중하게 검토하지 아니하고 피고인이 개인적으로 곤란함을 겪고 있는 상황, 즉 재정적자로 인한 퇴진 압박에서 벗어남과 아울러 임기 종료시점인 2006. 4. 연임에 성공하기 위해, 비록 경제적인 관점에서 기업에 재산상 손해를 가하는 결과가 초래되더라도 이를 용인할 수밖에 없다는 인식하에 의도적으로, 즉 업무상배임의 고의를 가지고 상급심에서의 확정판결을 받는 대신 이 사건 조정에 임했다고 보기는 어렵고, 따라서 검사 제출의 각 증거만으로는 이 사건 조세소송을 법원 조정이라는 형식으로 종결지음에 있어 피고인에게 업무상배임의 고의가 있었다고 보기 부족하다는 이유로, 위 공소사실에 대하여 무죄를 선고하였다.

C. Judgment of the court below

(1) Legal principles

The burden of proving the facts charged in a criminal trial is established with the prosecutor’s burden of proving the facts charged, and the conviction shall be based on the evidence with probative value, beyond a reasonable doubt that the facts charged are true. Thus, if there is no such evidence, even if there is doubt as to the defendant’s guilt, it shall be determined with the benefit of the defendant (see, e.g., Supreme Court Decisions 2006Do1713, May 26, 2006; 2009Do1151, Jul. 22, 2010). Furthermore, the intention of the crime of occupational breach of trust is established in combination with the awareness that the person who deals with another’s business would inflict property damage on the person himself/herself or a third party’s pecuniary advantage. The subjective element of the crime of occupational breach of trust is the subjective element of the crime of occupational breach of trust (e.g., motive, etc. of the defendant). Where the defendant denies the criminal’s act at issue with his/her own interest, it should be reasonably linked with indirect facts or indirect facts with 1040.

Furthermore, in determining whether a company had an intent to commit an occupational breach of trust with respect to a management judgment, the same legal doctrine as the method of proving an intentional act is applied to the general crime of occupational breach of trust. However, the management of a company is intrinsicly dangerous, and even if a manager has made a prudent decision with the belief that the company's interests are consistent with the company's interests based on the information collected in good faith and without intent to take any personal benefits, such prediction may occur. In such a case, if the interpretation standard on intentional act is relaxed to impose criminal liability for occupational breach of trust, this would be against the principle of no punishment without the law, and even at a policy level, even if the company, which is the source of operating income, causes a decline to the society as well as the relevant company, and thus, even if it cannot be denied the legal doctrine that the crime of breach of trust under the current Criminal Act is a crime of occupational breach of trust, it shall be limited to 200 cases where a third party is aware of an intentional act or a loss of his/her own interests (see, e.g., Supreme Court Decision 2001).

(2) Characteristics of the instant case

Mediation or reconciliation has many advantages, such as reducing social and economic waste caused by the prolongedization of disputes, and eliminating the consumable conflict caused by the aggravation of appraisal between the parties, as it is appropriate for the parties to make a variety of conclusions meeting all the interests of the parties, the possibility of voluntary implementation of the proposal of agreement is high as the parties voluntarily reach an agreement, and the prevention of other disputes or multiple disputes can be resolved at one time.

The court has made a lot of efforts to activate the conciliation or reconciliation taking into account the above functions and advantages, and actively encourage not only civil cases or household cases but also administrative cases to make conciliation by means of reconciliation. The court shall send a recommendation of conciliation to both parties, and the defendant shall cancel or modify the original disposition which is the object of litigation in accordance with the purport of the recommendation of conciliation, and then the plaintiff shall withdraw the lawsuit. The method of litigation in practice is not prescribed by law but is widely used in practice of administrative litigation.

However, as recognized earlier in this case, the Corporation has received a mediation recommendation in the name of the presiding judge in charge, which states, "as far as possible, in order to promptly and smoothly resolve disputes, as the result of the review of the above case which is being tried by the appellate court in charge of the tax litigation in this case, the Corporation has received a mediation recommendation in the name of the presiding judge, which states, "In order to recommend mediation as follows, in order to promptly and smoothly resolve disputes," and in particular, in the case related to value-added tax, the Corporation has received a mediation recommendation that contains a somewhat different content from the mediation recommendation proposed by the Corporation, and the defendant has decided to accept the recommendation through a review and consultation with the Corporation in charge of the mediation recommendation, the board of directors and the management council report, and the withdrawal of the tax lawsuit in this case has been made in accordance with the contents thereof. The prosecutor has been prosecuted as a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) on the ground that the defendant's act in receipt of the mediation recommendation was an occupational breach of trust

In light of the substance of the conciliation in light of the fact that the conciliation proposal was prepared with more active efforts of the Corporation than the active involvement of the court, and that there are many differences in the grounds, methods, effects, etc. of conciliation in the administrative case and conciliation in the civil and household cases, it cannot be deemed that conciliation is conducted only by either one intention or only one concession, and the involvement of the court is naturally premised on the degree of difference. In addition, in light of the aforementioned functions and advantages of the Finin conciliation and the necessity of active utilization of conciliation in the practice of litigation, it should be extremely careful to recognize the crime of occupational breach of trust in the process of participating in the conciliation of the court (such as a corporation or non-corporate association, etc.) in order to recognize the intention of the operator of the corporation to unilaterally and without the consent of the National Tax Service to obtain the higher level of financial burden, even if there is no possibility that the result of the corporation’s performance of the conciliation plan would result in the judgment on its management, it should be acknowledged that the defendant would have obtained the higher level of economic and economic benefits from the Corporation.

(3) Whether the Defendant was aware of the fact that the winning judgment in the first instance court among the instant tax litigation was remarkably grounded in the higher court and thus, the amount equivalent to the winning judgment in the first instance court could be refunded from the National Tax Service

On the other hand, according to the above evidence, ① the number of the judgment in the first instance of the tax lawsuit in this case is larger, ② the burden of proving the legitimate tax base and amount of tax is imposed on the tax authority, ② the burden of proving the legitimate tax base and amount of tax cannot be calculated in the case of a construction project which does not keep separate accounting, and there is no choice but to calculate the legitimate tax base and amount of tax due to the lack of clear specification of the amount of deductible expenses and the amount of tax amount related to the advertisement business, and ③ the tax authority has no choice but to cancel the disposition rejecting the reduction or the disposition imposing the reduction, since the tax authority failed to present the standards and evidentiary materials, it is difficult to view that the tax authority has presented to the court the data to clearly specify the amount of deductible expenses and the amount of input tax after the judgment in the first instance. ③ The tax planning team of the corporation is prepared and reported to the defendant, etc., ③ The fact that the corporation has a high possibility of winning the case in the first instance of the tax lawsuit in this case, and the fact inquiry report prepared by the public official of response to the AP bill in this case.

① However, in the first instance court of the tax lawsuit of this case, the Corporation won the 9th lawsuit of this case, but the 7th lawsuit against the plaintiff. ② In the first instance court of the tax lawsuit of this case, no full bench rejected the Corporation’s assertion that “the corporation operates the broadcasting business, thereby excluding receiving fees, it shall not incur any profit nor deduct all expenses corresponding to receiving fees from deductible expenses, and the input tax amount equivalent to the expenses paid by the corporation related to value-added tax shall be deducted from deductible expenses.” ③ The Seoul Administrative Court Decision 2003Guhap2407 decided August 17, 2003, which ruled against the corporation, has the burden of proving that the corporation, the plaintiff, bears the burden of proving the reduction of expenses, and that the lost corporation has dismissed its claim related to the cost-making business on the grounds that it is more related to the cost-making business than the Seoul Administrative Court Decision 99Gu28711 decided Oct. 8, 2003; 200Gu2016 decided Oct. 27, 2007.

In addition, the records of this case revealed that ① the opinion of AS law firm, which sought legal advice from the audit team of the Corporation, had the burden of proving the cause of reduction to the Plaintiff, such as the conclusion of the Seoul Administrative Court Decision 2003Guhap24007 decided August 17, 2004, against which the Corporation lost, and ② the Seoul High Court Decision 2009Na11521 decided June 4, 2010, which filed a claim for fees against the Plaintiff by H attorney-at-law, against the Plaintiff, regarding the possibility of winning the appellate court of the tax lawsuit of this case, it is predicted that the Corporation could have won the lawsuit at the first instance court, while the Seoul High Court Decision 2007Na105138 decided August 11, 2009, it is difficult to conclude that the Corporation could have won the higher court in the tax lawsuit at the time of termination of the delegation contract.

As such, it is inconsistent with the judgment of the court and the legal experts on the final winning of the tax lawsuit of this case (or the possibility of recognition), the failure of the lawsuit is a kind of factors affecting the outcome of the lawsuit, such as the degree of effort by the disputing parties, the probative value or credibility of collected evidence, the scope of the parties concerned, the testimony of the parties concerned, the degree of attorney's effort and expertise in the case in question, the characteristics of the competent adjudication division and the degree of understanding of the relevant field. Thus, no one can predict the outcome of the specific lawsuit until the judgment is rendered, and it is impossible to predict that the decision of the lower court is maintained in the superior trial as it is, considering all the various circumstances asserted by the prosecutor, and all the evidence submitted in the original trial and the trial, it is hard to conclude that the defendant, who is not a legal expert, has reached the same conclusion in the higher trial on the judgment of the court of first instance on the winning of the tax lawsuit of this case, and there is no other evidence to acknowledge that the amount of winning has been refunded from the National Tax Service.

(4) Whether the Defendant was well aware of the fact that the tax authority had no additional financial burden even if a tax suit is pending with the tax authority because there is no possibility for the tax authority to re-assessment corporate tax, etc.

As argued by the Prosecutor, in the case of taxation for which the exclusion period has elapsed, it is possible to re-disposition according to the purport of the judgment, but the increase is impossible, and in the case of taxation by the method of the estimation investigation, since the relevant accounting books are fully completed, but it is impossible to determine the tax base and tax amount due to the relationship that does not have separate accounting, it cannot be deemed clear whether the construction is subject to the estimation investigation, and even if it is subject to taxation by the estimation investigation, taxation by the estimation investigation shall follow the procedures prescribed by the law, and in the case of construction, there are all problems with the method of the estimation based on the income standard ratio or the method of the estimation by the partner authority.

However, according to the records of this case, the tax authorities should calculate corporate tax and value-added tax based on the estimated taxation that it is difficult to view that separate accounting has been properly performed by the Corporation at the time of winning the tax suit. ② The Seoul High Court 2009Na11521 decided that "it is practically difficult to change or re-dispositions by estimated taxation" in the above Seoul High Court Decision 2007Na105138 decided that "it is difficult to conclude that the tax authorities will not take measures again in accordance with the method of estimated tax investigation even if it is the final winning in the tax suit of this case." (3) The Seoul High Court 2007Na105138 decided that if it is difficult for the Corporation to determine the tax amount by the initial method of tax investigation, it may not be considered that the new method of calculating the amount of tax can be applied to the case where the Corporation loses the tax amount by the new method of tax investigation, and it may not be considered that the new method of calculating the amount of tax can be applied to the Corporation.

(5) Whether the instant conciliation has been promoted in an unreasonable manner with the awareness that it would be justified even if the result was caused by the Corporation’s property damage for the personal purpose that the Defendant exempted the Defendant from liability for insolvent management and thereby would maintain the status of the president of the Corporation.

The following facts are acknowledged: (a) the management performance of the public corporation in 2004 recorded the deficit amounting to KRW 63.8 billion; (b) the public corporation predicted the deficit amounting to KRW 80 billion in the case of 2005; (c) the public corporation's management performance was not good, such as not recording black persons by up to 3/4 quarter; (b) the public corporation's deterioration of the management status at the time was at issue in and out of the public corporation, including a trade union; and (c) the public corporation's allegation of the responsibility for management, including the Defendant; and (d) the adjustment of tax litigation in the contract with the public corporation (AL) as an attorney newly appointed by the public corporation, should be paid part of the contingent fee if it is established by the end of October 2005.

However, in light of the following circumstances, i.e., the public corporation and the tax authorities have different characteristics from the tax disputes between the public corporation and the tax authorities, and the defendant's resolution of the problems through mediation or settlement rather than the dispute resolution through the public corporation, and ii) the public corporation's resolution of the dispute resolution through mediation or consultation with the tax authorities was conducted on April 204, it was difficult for the public corporation to unilaterally conclude that the defendant's management status of the public corporation was insufficient for the public corporation to be resolved by the evidence duly adopted by the court below and the court below, or that it was hard for the public corporation to find that there was a lack of public interest in the public corporation to have been resolved by the public corporation's independent and non-profit corporation's external reform of its management status. It was also reasonable to view that there was a lack of public interest in the public corporation to have been expressed by the public corporation's independent and non-profit corporation's opinion on the improvement of its management status as a result of consultation or adjustment of its corporate expenses for the public corporation.

(6) Whether the defendant intentionally promoted the instant conciliation without sufficient review of the proposal or consultation with experts

With regard to this, the prosecutor asserts that the promotion of the conciliation of this case was conducted in accordance with the direction of the defendant without internal consultation and review on key issues, and that the report of the board of directors and the management conference was passed formally to avoid external responsibility, and that the request for advice to external experts and the illegality of the conciliation promotion was at issue through the report of the BC, etc., it was conducted ex post facto formality to avoid legal responsibility.

그러나 ① 피고인이 공사의 사장에 부임한 이후 그 동안 P이 혼자 담당하던 조세소송 업무를 효과적으로 수행하기 위하여 조세소송팀을 구성하고, 전사적으로 대응하기 위해 조세소송T/F팀을 구성하였으며, 2004. 5. 6.경 조세소송팀을 확대 개편하여 사내 변호사 AF, 사내 공인회계사 AE가 팀원으로 포함된 세무기획팀을 구성하여 조세소송에 적극적으로 대응하도록 한 점, ② 피고인은 조정안의 타당성 여부를 확인하기 위하여 AJ에 자문을 구하고, 법무법인 AN 등 외부 전문기관에 자문을 구하도록 하였으며, 내부적으로도 감사팀의 일상감사를 받았고, 공사 이사회 및 경영회의에 이 사건 조정에 관한 보고를 여러 차례 하였으며, 실제로 공사 감사팀에서도 조세소송의 조정에 의한 종결과 관련하여 자체 감사 외에 법무법인 AP과 법무법인 AS에 대해 법률검토를 의뢰하여 그 회신내용을 보고한 점 등은 앞서 인정한 바와 같고, 여기에 이 사건 기록에 의하여 인정되는 다음과 같은 사정 즉, ①) 2004. 4. 23. 개최된 조세소송T/F팀 제2차 회의에서는 ‘승소하더라도 국세청과의 분쟁 가능성은 계속 남아있을 수 있기 때문에 협상으로서 풀어갈 부분은 없는지 검토해야 한다.'라는 취지의 결론이 도출된 점, ② 2004. 5. 10. 개최된 조세소송T/F팀 제4차 회의(사장인 피고인은 참석하지 않고, 부사장이 참석)에서, R은 '우리로서는 기존의 추징세액을 전액 환급받고 향후 과표산 정시에도 우리의 주장을 국세청이 받아들여 세액을 납부하지 않는 것이 최선이고, 패소하여 추징세액뿐만 아니라 향후에도 국세청 논리대로 더 많은 세액을 부담하게 되는 것이 최악이 될 것이다. 세무소송팀은 이런 양 극단 사이에서 다각적인 경우의 수를 가정하고 이에 대응책을 마련하여 소송과 협상에 임하도록 하겠다.'라고 보고한 점, ③ 세무기획팀에서 작성한 2005. 2. 24.자 이사회 요구자료 답변서에서도, ‘공사는 소송이 장기화 될수록 공사 재정에 미치는 부정적 영향이 막대하다는 점을 충분히 인식하고 있으며 공사의 이익이 극대화되는 방향으로 세무기획팀을 중심으로 최대한 신속하게 현안이 해결될 수 있도록 노력하겠다.'라는 취지의 내용이 포함되어 있는 점, ④ 안건 회계정보 및 법무법인 AN에 대한 자문의뢰 당시, 비록 조세소송의 승소 가능성과 추계조사 방법에 의한 재부과 가능성에 관한 직접적인 질문이 포함되어 있지는 아니하였으나, 그 자문의뢰 및 회신에 '조세소송에서의 공사 측 소송대리인의 법률 주장의 타당성 여부에 대한 질의 및 판단 내용이 포함되어 있었고, 공사 감사팀의 법무법인 AP, 법무법인 AS에 대한 자문 의뢰 및 회신에는 승소 가능성 및 추계조사 방법에 의한 재부과 가능성이 언급되어 있는 점, ⑤ 세무기획팀에서 자문을 의뢰한 법무법인 AN에서는, ‘조정으로 사건을 종결시키는 것이 불필요하다거나 별다른 의미를 가질 수 없다는 주장이나 조정으로 사건을 종결시킬 경우 공사의 수신료 징수 자체가 불가능하게 된다.는 주장 등은 그 타당성을 인정하기 어렵고, 소송의 승소 가능성뿐만 아니라 승소하였을 경우에도 분쟁이 종국적으로 해결될 것이라는 점에 대한 확신마저 없는 상황에서, 분쟁의 신속하고 합리적인 해결을 위하여 조정을 통하여 사건을 종결하겠다는 공사의 입장은 가장 적절한 판단이었다고 할 것이다.'라는 취지로 회신한 점, ⑥ 법무법인 AP과 법무법인 AS에서도 '소송에서의 승패는 쟁점의 도출, 각 쟁점에 대한 주장 및 입증자료의 존부, 법리다툼에 대해 재판부가 어떤 견해를 채택하는지 여부 등 수많은 변수가 있으므로 제1심의 공사 승소판결이 최종심까지 유지될 수 있을지 여부를 예상하기는 곤란하다.', '조정권고안의 수용에는 장점과 단점이 공존하고 있으며 최종적으로 조정권고안의 수용 여부는 경영진이 정책적으로 판단할 사항이나 당초 공사의 주장은 받아들여지기 어려운 것으로 예상됨은 물론, 승소하더라도 기 부과된 금액만큼은 추계조사로 재부과될 수 있고, 대법원의 판단에 따라 쟁점이 정리될 때가지 과세관청이 법인세와 부가가치세를 매년 추징할 것이 확실시되는 반면, 최종 판결까지는 장기간이 소요될 것으로 예상되어 공사에 상당한 자금압박 요인으로 작용할 수 있으므로 세무조정에 응하는 것이 현실적 대안이 될 수 있다.'라는 취지로 답변한 점23) 등을 더하여 보면, 검사가 제출한 증거나 주장하는 사정만으로는, 피고인이 의도적으로 조정안에 대한 충분한 검토나 전문가에 대한 자문 없이 이 사건 조정을 추진하였다고 단정하기 부족하고, 달리 이를 인정할 만한 증거가 없다.

(7) Whether the instant recommendation adopted by the Corporation was unreasonable as a matter of course against the Corporation’s unilateral disadvantage

It is true that the Corporation has waived its demand for refund of corporate tax voluntarily reported and paid in the process of preparing a mediation proposal related to corporate tax, and the court's recommendation for adjustment related to value-added tax is not only the original demand of the Corporation, but also according to its recommendation for adjustment, it can be interpreted that even if the refund of value-added tax was made during the settlement period, the Corporation cannot refund it.

그러나 이 사건 기록에 의하면, ① 이 사건 조정 당시는 공사가 부당이득금 반환청구 소송을 제기한지 약 10년, 조세소송을 제기한지 약 6년이 경과된 시점으로서 조세소송에 대한 대법원의 최종 판결 선고까지는 오랜 기간이 더 지나야 할 것으로 보이고, 만약 승소판결의 취지에 따른 세금 재부과가 있게 되면 공사로서는 이에 대해 다시 취소소송을 제기하여야 할 것이므로, 결국 판결로 조세소송을 종결하여야 한다면 적지 않은 시간적, 경제적 노력이 들었을 것으로 보이는 점, ② 이 사건 조정 당시 공사의 법인세, 부가가치세에 대한 합리적인 과세기준이 없었고, 법령의 제·개정이나 대법원의 확정 판결보다는 조정에 의하여 합리적 과세기준을 마련하는 것이 보다 타당한 방안이었던 점, ③ 공사의 기존 입장은 '수신료 수입에 대응되는 사업비가 없고 따라서, 공사의 인적·물적 총비용과 지출은 모두 공사의 수익사업거래인 광고료 수입에서 모두 차감해야 하고, 모든 매입세액을 공제하여 부가가치세를 산출하여야 한다.'는 것인데, 이는 세법상 실질과세의 원칙과 회계상 수익비용의 합리적 대응이라는 측면, 그리고 공사의 법적 성격의 특수성, ‘부가가치세법 제17조에 의하여 과세사업인 광고업을 위하여 사용되었거나 사용될 재화 또는 용역의 공급 등에 대한 세액으로 같은 조 제2항 의 예외사유에 해당하지 않는 것에 한하여 매입세액으로서 공제될 수 있다.'라는 내용의 조세소송 1심 판결의 취지 등에 비추어 볼 때, 반드시 타당하다고 볼 수는 없는 점, ④ 공사가 국가를 상대로 제기한 부당이득금 반환청구 사건의 대법원 판결 취지나, 이 사건 조세소송의 1심판결의 취지, 공사의 특성, 회계 관행 등에 비추어 볼 때, 법인세와 관련하여서 '공통손금을 광고업 등 수익사업의 수입액과 수신료 수입액과의 비율에 따라 안분계산하는 방식으로 과세표준을 정하는 방안'이, 부가가치세와 관련하여서는 '수신료 징수와 관련된 매입세액에 관하여는 매출세액에서 불공제하는 방식으로 과세표준을 정하는 방안'이 현저히 부당하다거나 불합리하다고는 보이지 아니한 점24), ⑤ 피고인은 2005. 5.경 신임 세무기획팀장이 된 Q로부터 법인세 외에 부가가치세까지 동시에 타결하지 않으면 법인세 부분의 세금절감 효과를 모두 상쇄할 수도 있다는 취지의 보고를 받았고, 이에 따라 공사는 법인세와 부가가치세 소송을 일괄하여 조정하기로 방침을 정한 점, ⑥ 자진 신고·납부한 법인세 등에 대한 환급 포기에 관하여, 과세관청 담당공무원의 입장에서는 자진 신고·납부한 법인세 등을 환급하는 조정안의 경우 책임 문제 등을 이유로 이를 상부에 보고조차 하지 않을 정도로 고려 대상이 아니어서 이를 고집할 경우 조정 자체가 어려웠고 25), 조정 이후의 과세기준, 즉 수익금 액비율에 의해 공통손금을 분배하는 방식을 합의함으로써, 향후 납세에 있어 공사에 유리한 방식을 채택하여 공사와 과세관청이 상호 양보하는 내용의 조정안이 성립되었다고 볼 수 있으며, 공사 입장에서는 향후 과세기준으로 인한 법인세 등에서의 혜택이 장기적으로는 자진납부 세금의 환급 포기로 인한 손실액을 만회할 것으로 기대하였던 것으로 보이는 점, ⑦ 과세관청의 대리인인 AW 법률사무소의 AX 변호사도 법원의 조정권고안에 대해, ‘향후 소송에 대한 전망, 조정안의 내용이 현실적인 과세여건을 반영하여 과세관청의 입장과 '공사'의 입장을 충분히 고려하여 이루어진 것으로 보이는 점, 만약 합의가 성립되지 않을 경우 동종의 소송이 끝없이 반복되고 이로 인해 양측 모두에 상당한 사회적, 경제적 손실이 초래될 것이라는 점, 2001 사업연도 전에는 매입세액을 과다 공제해 주는 듯한 의문이 있으나, 그 이후에는 과세사업 관련 매입세액까지 불공제하는 효과가 있어 그 유·불리의 효과가 서로 상쇄되는 데다 120억 원 정도의 환급세액을 절약하는 점까지 감안하면, 법원의 조정권고안이 양 당사자의 입장을 충분히 고려한 합리적인 방안이다.'라는 취지의 의견을 제시한 점 등이 인정되고, 여기에 공사의 규모나 설립목적, 회계 관행, 수신료를 주요 수입원으로 하는 점 등에 비추어 볼 때, 이 사건 조세소송과는 다른 내용의 조세분쟁의 가능성이 남아 있다고 할 것인바, 이 사건 조세소송에 있어서의 조정을 통한 원만한 해결은 예견되는 다른 조세분쟁에 있어서 하나의 선례가 될 수 있고, 공사 입장에서 과세관청과의 관계 회복을 통하여 얻게 되는 무형의 이익도 결코 무시할 수 없는 점까지 더하여 보면, 검사가 제출한 증거와 주장하는 사정만으로는, 서울고등법원이 공사와 과세관청에 보낸 이 사건 조정권고안이 공사에게 일방적으로 불리한 내용으로, 그와 같은 조정 추진이 공사에게 불합리한 것이었다거나, 적어도 피고인이 그러한 사정을 인식하고 있었다고 단정하기 부족하고, 달리 이를 인정할 만한 증거가 없다.

D. Sub-committee

As seen earlier, inasmuch as the Defendant presented an unreasonable proposal clearly contrary to the interests of the Corporation without sufficient consideration and advice from experts for the purpose of evading management responsibility through temporary settlement of financial institutions and holding no additional financial burden for the Corporation, even though he was aware that the Defendant would have won the final winning of the tax lawsuit in this case, due to the impossibility of taxation by the estimation survey, etc., and that there was no additional financial burden for the Corporation, the lower court is justified to have acquitted the Defendant of the facts charged in this case, regardless of the various circumstances where the Defendant would have raised doubt that the Defendant would not engage in the instant conciliation for the personal purpose of maintaining the president status rather than the interest of the Corporation, and the lower court did not have any influence on the legal entity’s request for a reply to the audit results, the lower court’s determination of the Defendant not guilty of the facts charged in this case does not affect the aforementioned determination on the witness BL, R, B, BM, and N’s respective statements and the review report on the BA-related mediation recommendations, the meeting minutes of taxation analysis, reasonable taxation standard, corporate tax amount related to the G recommendations, and the audit report related data.

Therefore, the judgment of the court below has no erroneous determination of facts or misapprehension of legal principles as alleged in the grounds of appeal, and the prosecutor's above assertion is without merit.

4. Judgment on the ancillary charges added at the trial

A. Summary of the facts charged (the whole facts charged is as stated in the annexed sheet 1)

The defendant is a person who was appointed as the president of the Corporation on August 11, 2008 and was in office until August 11, 2008 and has overall control over all the management of the Corporation, including personnel, funds, and accounting.

From September 199 to May 2004, the Corporation received a favorable judgment on the total amount of 17 corporate tax and value-added tax filed against the director of the Yeongdeungpo District Tax Office in the first instance trial on the claim for reduction of the corporate tax and the value-added tax and the revocation of the disposition of imposition. The Corporation had been sentenced to the winning judgment on the total of 1,76.4 billion won, including corporate tax 1,34.8 billion won, value-added tax and the value-added tax 41.6 billion won. The Corporation had been able to receive a refund from the National Tax Service at least 1,76.4 billion won, which is the winning amount in the first instance trial, if the winning judgment continues to take place in the first instance trial, but the Corporation was placed in the position to voluntarily report and pay corporate tax and value-added tax for each business year. However, the possibility that the tax authority asserting the principle of substantial taxation could not be ruled unreasonable, so it was necessary to establish a reasonable taxation standard through consultation with the tax authority or tax authority to avoid repeated disputes over taxation.

Accordingly, the tax planning team of the public corporation started contact with the person in charge of the tax authority in consideration of the dispute resolution through negotiations with the tax authority from April 2004 in accordance with the direction of the defendant, and proposed the provisional corporate tax assessment standard prepared through internal consultation with the tax planning team around June 2004 as the provisional taxation standard, and demanded a refund equivalent to 98.4 billion won when applying the standard to the voluntary return and tax payment of corporate tax for the fiscal year 1993 to 2003-2003. Accordingly, it can be refunded because the tax authority found the illegality of the additional collection through the tax investigation in the year 2001, but it is possible to refund the amount of voluntary return and tax payment if there is a judgment, but it is difficult to accept the tax authority's liability because it is accompanied by the problem of the employee's responsibility.

On the other hand, with respect to reasonable taxation standards applicable to the Corporation, the method of determining the tax base as the "the method of calculating the common deductible expenses according to the ratio of the revenue amount of profit-making business such as advertising business and the revenue amount of receiving fees in the case of corporate tax" can be seen as the most realistic and reasonable taxation standards, and in the case of value-added tax, the method of determining the tax base as the "the method of undeductible from the output tax amount in the case of input tax amount related

Therefore, even in cases where the Defendant intends to complete the instant tax lawsuit through the conciliation of the instant tax lawsuit through the consultation with the tax authority, it is necessary to closely review the possibility of winning the public corporation’s tax lawsuit, the possibility of re-taxation due to the estimated investigation, the rationality and validity of the conciliation proposal, etc. in order to fully reflect the benefits of the public corporation as the president of the public corporation in the conciliation proposal, and to request the foreign specialized institutions, etc. to provide advice thereon, and to prepare reasonable taxation standards to the tax authority. In such cases, if such taxation standards are revised and finalized through mutual concession with the tax authority, it is necessary to prevent the recurrence of the dispute by using the basis for calculating the amount of tax payable in the future. On the other hand, if the pertinent amount of tax is determined after applying the subject matter of the instant tax lawsuit, there was a duty to preserve the property benefits of the public corporation by requesting

Nevertheless, the Defendant accepted all new taxation standards on corporate tax and value-added tax required by the tax authorities, but had already been recognized as unlawful in the course of the instant tax litigation, and converted the corporate tax collection amount of KRW 45.9 billion, which was anticipated to be naturally refunded by the Corporation, into black for the business year 2005, thereby having been exempted from the board of directors and labor union, etc. of the Corporation due to financial difficulties for two consecutive years, and was able to success in the reappointment on April 2006 at the end of the term of office.

Accordingly, on July 18, 2005, the Defendant applied for the designation of the date to coordinate the Seoul High Court, and submitted a proposal to the Seoul High Court on August 24, 2005 to refund only 45.9 billion won corporate tax collected through the Attorney AF and withdraw tax litigation.

On October 13, 2005, the Seoul High Court, reflecting almost the draft mediation submitted by the Corporation, sent the recommendation for corporate tax adjustment on November 3, 2005, respectively to both parties. The Corporation notified the above court of acceptance of the recommendation for mediation on November 16, 2005, and on December 30 of the same year. The Corporation withdrawn the tax litigation at the Seoul High Court on January 5, 2006 and December 24, 2005, only the amount of corporate tax additionally collected KRW 5.6 billion (including the interest on the amount of corporate tax additionally collected to be refunded to KRW 4.5 billion), including the interest to be refunded from the Young Mapo Tax Office.

Accordingly, the Defendant, in addition to the corporate tax collection amount to be refunded in accordance with the aforementioned reasonable taxation standard, KRW 82.5 billion from the year 1995 to the business year 2004; KRW 16.8 billion from the value-added tax from the year 1997 to the business year 2005 to the year 16.8 billion from the value-added tax without justifiable grounds; and in the above case, the Defendant, from the year 1997 to the year 2005, had the State acquire property benefits equivalent to the same amount; and the Corporation suffered property damage equivalent to the same amount.

B. Determination

It is clear in the calculation that the fact that the mediation plan has not been implemented in the course of negotiations by the Corporation is as seen earlier, and that the Corporation would much more favorable to the Corporation than the actual mediation recommendation if the refund was made in accordance with the tax standard originally proposed by the Corporation.

On the premise of the above facts, the prosecutor: (a) deemed the Corporation as a reasonable taxation standard that can realize the taxation standard for the proposed tax settlement agreement that the Corporation finally agreed with the tax authorities; and (b) the Defendant, as the president of the Corporation, had the duty to receive refund from the Corporation through the adjustment of the amount of tax calculated by applying the same to the subject matter of the instant tax lawsuit, which was in progress at the time of the said taxation standard; (c) has promoted the instant adjustment to waive the refund of the corporate tax and value-added tax voluntarily reported and paid by the Corporation in

① However, a public official in charge of the tax authority did not report to the upper part, on the grounds that there are complex and internal difficulties in the procedure, instructions from the Ministry of Justice, occurrence of disciplinary reasons for the relevant public official. Such a proposal is not subject to consideration from the position of the tax authority, and thus it was difficult for the tax authority to mediate the proposal. ② The public corporation and the tax authority have waived the refund of corporate tax voluntarily reported and paid by the public corporation, and the tax authority has refunded the corporate tax amount of KRW 5.6 billion after the adjustment, and the tax authority has agreed on the "the method of distributing common deductible expenses according to the ratio of the revenue amount in the case of corporate tax", namely, the "the method of distributing common deductible expenses according to the ratio of the revenue amount in the case of value-added tax", the proposal is established with mutual agreement, concession contents as input tax amount only for the expenses incurred by the receiving fee collection department, from the viewpoint of the public corporation, and the long-term benefits from the corporate tax due to voluntary payment should be considered as losses incurred by the public corporation due to the waiver of corporate tax, and evidence for the public corporation's.

5. Conclusion

Therefore, since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition (The preliminary charge in this case constitutes a case where there is no proof of facts of crime on the grounds as seen earlier, and thus, a not-guilty verdict should be made pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the court below's conclusion that acquitted the primary charge within the scope recognized as identical to the preliminary charge is maintained, it shall not

Judges

The presiding judge, senior judge and senior judge

For judges' error

Judges Shin Jae-ok

Note tin

1) Article 32(4) of the Enforcement Decree of the Value-Added Tax Act provides, “A broadcast under Article 12(1)7 of the Act shall be broadcast and relay broadcast under the Broadcasting Act”, “A broadcast under Article 12(1)7 of the Act shall be a satellite broadcast and relay broadcast under the Broadcasting Act. A broadcast revised to a new one is excluded from a tax-free business.”

2) In the case of the business year 1998, corporate tax was not paid by the enemy.

3) On August 199, 199, after the appellate judgment of the court rendered a request for the return of unjust enrichment, the statement of opinion, "whether or not an administrative litigation is filed for the recovery of value-added tax and corporate tax, etc. paid", which was prepared by the Corporation. If the Corporation only files the case as an administrative litigation within the statutory deadline, the possibility of winning the case is almost conclusive in light of the judgment of the high court on the relevant case and the decision of the Constitutional Court. The business income becomes one business due to non-profit business that cannot be fundamentally generated, and it is evident that there is no tax liability for value-added tax and corporate tax, so the possibility of winning the Corporation is almost final and conclusive." According to the opinion of the Supreme Court, 199, 2000, which was submitted by the Supreme Court of Korea on March 1, 2000, which was the final judgment of the court of final appeal of the lawsuit seeking the return of unjust enrichment, 3.0.0.0.0.0.0.0.0.

4) It is unreasonable to view the Plaintiff’s receiving fees as income subject to corporate tax because it is not the price for providing broadcasting services, but the Plaintiff’s revenue. Moreover, since the Plaintiff runs a broadcasting business with revenue revenue received in return for advertising, it is not a separate business, and thus, there is no room for fundamental revenue if the Plaintiff excludes receiving fees. Therefore, the amount of the above corporate tax that the Plaintiff reported and paid should be deducted from the deductible expenses. (2) The Defendant asserts that the amount of receiving fees should be excluded from the deductible expenses because it is not the price for providing broadcasting services, but the special charges imposed for raising the cost for specific public services such as public broadcasting. Accordingly, the Defendant’s assertion that the Plaintiff’s receiving fees should be excluded from deductible expenses. (3) Even if the Plaintiff’s operating expenses related to the domestic broadcasting business should be excluded from deductible expenses, the Plaintiff’s disposal of the entire amount of receiving fees should be denied unless it proves that the Plaintiff’s operating expenses of the broadcasting business should be excluded from the revenue amount for profit-making business other than the revenue amount for broadcasting business.

5) In the case of the judgment Nos. 3, 4, 9, 10, 11, 12, and 17 (in the case of the judgment Nos. 3 and 4, in the case of the judgment Nos. 3 and 4, the appellate court rendered a dismissal judgment on the grounds of duplicate litigation, and the Supreme Court affirmed it as it is. In the case of the judgment No. 10, the Supreme Court rendered a partial dismissal judgment on the grounds that the revocation claim was unlawful, as the corporate tax increase and correction disposition was absorbed in the year No. 1997 and the year No. 1998 was later, the portion of the claim for revocation of the disposition on the imposition of corporate tax for the remaining year No. 1996, 199, and 200 was all won by the Corporation (the first decision No. 1997 and the year No. 19988, the Corporation won all the lawsuit at the appellate court and the final decision No. 3650, Dec. 36, 2006).

6) Attached No. 13 and 14 decided on the details of the progress of tax litigation in attached Form 2

7) Attached 2 No. 15 Judgment on the details of the progress of tax litigation

8) Attached No. 5, 6, and 7 of the details of the progress of tax litigation in attached Form 2

9) Attached 2, 8, and 16 Nos. 2, 8, and 16 of the details of the progress of tax litigation

10) The head of the S policy planning center as the chairperson, and the head of the Q tax litigation team as the executive secretary. The members consist of T Policy Week, U Publicity Week, V news coverage 1 week, W programming Policy Division, X budget planning Division, Y Budget Planning Division, 7 Settlement/Tax Affairs Week, AAAA legal affairs Team, P tax litigation team, AB budget officer, AC National Tax Service Accesser, and H attorney-at-law (if necessary).

11) The R claims that this document was delivered to H around October 2004, but H claimed that it was delivered to P around the end of 2005, Mar. 3, 2005.

12) The amount of KRW 15.9 billion for the year 196 and additional dues to refund 2.9 billion + the amount of KRW 23.3 billion for the year 197 and additional dues to refund 1.6 billion for the year 1997 + the amount of KRW 6.7 billion for the year 1998 and additional dues to refund 200 million for the refund (each calculation of additional dues as of September 30, 2005, and the amount of refund)

13) At the time of conciliation by the National Tax Service, the portion of the value-added tax at the time of conciliation changes, and eventually, the recommendations for the adjustment of value-added tax were sent later, and in particular, the recommendation for the adjustment of value-added tax was somewhat changed to the construction rather unfavorable than the initial construction (the corresponding portion of the fee collection ratio for the total cost).

14) Investigation records No. 4800 pages (However, according to the investigation records No. 2575 pages, the date of preparation of internal documents called the advice of outside law firms (N) related to the tax litigation prepared by the tax planning team shall be 2005, Nov. 9, 200)

15) The labor union against the management innovation proposal and the management promotion movement, and the executive branch of the plan.

16) In the facts charged, the non-Confidence proposal is expected to be resolved with the pressure support of the union members at the time of ballot counting, and the AI, the chairman of the union, was present at the court below as a witness and stated to the same purport. However, according to the BB severe weather alert No. 16 (No. 2005, Jun. 13, 2005, issuance, and submission of counsel) of the defendant's management innovation proposal on June 1, 2005, the 31.9% consent for the management innovation proposal, 45.4% for the president's retirement, and 85.9% consent for the wage reduction or wage reduction if the management seems to be responsible.

17) [Contents of the Agreement]

1. 노사는 방송 BA의 당면위기를 극복하고 공영성 강화를 위한 미리 |젼을 마련하기 위해 신의성실의 바탕 하에 상호, 협력하여 최선을 다한다.

2. The management shall be responsible within 4/4 quarters of the date of the occurrence of the small and medium-year management crisis with a thickness of the staff and, in order to look at the responsible attitude, all the officers shall submit the resignation of the president and shall be responsible within 4/4 quarters of the occurrence of the enemy.

3. Labor and management shall make every effort to overcome the imminent crisis, and the Company shall make best efforts to stabilize the employment of its members.

4. To resume wage negotiations and four working-level consultative councils of labor and management, respectively, and to make every effort to recover labor-management relations;

5. A labor-management shall make best efforts to prepare for the realization of receiving fees and for the enhancement of competitiveness of BA and for the convergence of broadcasting, communications, etc. in return for promising to resolve labor-management conflicts, etc. and prevent recurrence by examining the spirit of mutual agreement in good faith;

【Res Agreements】

1. The management seems to be responsible for the management of the last year within the fourth quarter of the year.

2. If a member is dismissed by any means other than the current regulations, it shall be conducted by an agreement with the cooperative;

3. The labor and management shall closely consult by establishing a labor and management joint committee on structural innovation proposals to overcome emergencies.

4.The terms of this Agreement shall be side and shall not be disclosed in accordance with mutual trust and good faith.

18) Seoul Central District Court Decision 2005Da35539 decided Oct. 25, 2006 (Dismissal of Request); Seoul High Court Decision 2006Da103531 decided Oct. 31, 2007; Supreme Court Decision 2007Da81032 decided Apr. 10, 2008; Seoul High Court Decision 2008Na44186 decided Jul. 24, 2008; Supreme Court Decision 2008Da64447 decided Oct. 10, 23 (Dismissal of Appeal)

19) Attached 2 Tax Litigation No. 17 No.

20) Article 35 of the Administrative Litigation Act, which was submitted by the Supreme Court to the National Assembly in the form of a legislative opinion on September 8, 2006, proposes the introduction of a "conciliation system in court by the recommendation of the court". Article 35(1) of the above Amendment provides that the court may make a decision to recommend reconciliation for resolution of the case ex officio within the scope of the party's rights and authority where it considers it appropriate in light of the legal factual status of the case pending in court, the interests of the parties, and all other circumstances. However, if there is a third party who is directly infringed upon the rights or interests of the party or there is an administrative agency having legal authority such as the consultation on approval for the administrative act subject to reconciliation, the consent of the third party or the administrative agency is required."

21) The prosecutor asserts that the winning of the construction work is certain even in the higher court because all of the judgments rendered by the tax authorities are not sufficient to prove, and there are many other factors that affect the outcome of the lawsuit, such as the degree of effort by the disputing parties, the probative value or credibility of the collected evidence, the scope of the persons who can give testimony, and the testimony by the relevant parties, rather than the case where the winning of the lawsuit would vary depending on the facts alleged by the relevant parties. Furthermore, the prosecutor asserts that the winning of the construction work is certain even in the case of the instant tax lawsuit. However, there are many other factors that affect the outcome of the lawsuit, such as the degree of the attorney's effort and expertise in the relevant case, the degree of understanding about the relevant field, and the degree of understanding about the relevant field, as argued by the prosecutor, it cannot be readily concluded that anyone cannot present any other opinion. Thus, it is difficult to accept the prosecutor's aforementioned argument as it is without merit (in the case where the prosecutor loses the value of the construction work over several times until the trial party is involved, and the Seoul administrative court's decision cannot be justified.

22) On March 7, 2005, the tax authority imposed an additional corporate tax of KRW 33.33 billion (based on March 2, 2005) for the business year 1999 as the payment period on March 31, 2005, and made it clear that the corporate tax of KRW 21.2 billion for the business year 2000 was expected to be imposed later (the investigation record No. 2378).

23) The prosecutor did not notify the fact that the Corporation led to mediation at the time of the request for consultation with the law firm and AS, or that the request for consultation was a formality. Thus, the prosecutor alleged that the result of consultation could not be trusted or that the request for consultation was a formal form. However, the above request for consultation with the law firm was made independently by the public corporation audit team between the defendant, who is the president and the defendant, and it is difficult to view that the request for consultation was formal or wrong in light of the content of the response.

24) As acknowledged earlier, although the provision of an input tax amount under Article 17(2) of the former Value-Added Tax Act was excluded from A’s input tax-free business on December 29, 200. However, H attorneys present at the lower court’s determination that only a taxable business should be operated, as a witness. In its en banc Decision 94Nu149 Decided December 21, 1995, it is reasonable to view that the Plaintiff’s provision of an input tax amount under Article 17(1) of the former Value-Added Tax Act should be excluded from A’s input tax amount under Article 17(2) of the same Act, except as otherwise listed in the above provision. It is reasonable to view that the Plaintiff’s provision of an input tax amount under Article 17(2) of the same Act should not be deducted from A’s input tax amount under Article 17(1) of the same Act for the purpose of calculating the input tax amount under Article 17(2) of the same Act, and thus, it cannot be deemed that the Plaintiff’s input tax-related tax amount cannot be deducted from A’s.

25) The tax authority presented the opinion that it is difficult to accept due to the complicated and internal difficulties in the procedure, the need to direct the transmission of the Ministry of Justice, the occurrence of disciplinary reasons for the relevant public officials, etc. (Article 2283 of the Investigation Records).