[1] The meaning of "for-profit purposes" under Article 8-2 (1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes

[2] In a case where the defendant, the representative director of Gap corporation, was indicted for violating the former Act on the Aggravated Punishment, etc. of Specific Crimes on the ground that he/she conspired with the vice president, etc., to supply goods or services, prepared a false list of sales and purchase by customer and submitted them to the Government, the case affirming the judgment below holding that the defendant had "for profit-making purposes"

[3] The relation between the crime of violation of each subparagraph of Article 11-2 (4) of the former Punishment of Tax Evaders Act and the crime of violation of Article 8-2 (1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes

[4] The meaning and standard of determining “illegal solicitation” in the crime of taking property in breach of trust, and whether the same legal principle applies to the case under Article 22(3) of the Certified Public Accountant Act (affirmative)

[5] In a case where the Defendant, a certified public accountant, was indicted for receiving money and valuables from the Vice-President B of the Company A for an illegal solicitation that “to raise the stock value of Company A necessary for the merger”, the case affirming the judgment below which acquitted the Defendant of all the primary facts charged in violation of the Certified Public Accountant Act and the ancillary facts charged in violation of the former Certified Public Accountant Act, on the ground that it cannot be deemed as an illegal solicitation contrary to social norms

[1] Article 8-2 (1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 9919, Jan. 1, 2010) / [2] Article 8-2 (1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 9919, Jan. 1, 2010); Article 11-2 (4) (see current Article 10 (3) of the former Punishment of Tax Evaders Act) / [3] Article 8-2 (1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 9919, Jan. 1, 2010); Article 11-2 (3) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 9919, Jan. 1, 2010); Article 10 (3) of the former Punishment of Tax Evaders Act (Amended by Act No. 99910, Jan. 19, 10, 204) of the Public Accountant

[1] Supreme Court Decision 2009Do13342 Decided February 11, 2010, Supreme Court Decision 2010Do7289 Decided November 11, 2010 / [3] Supreme Court Decision 2008Do868 Decided January 14, 2010, Supreme Court Decision 2010Do336 Decided May 13, 2010 / [4] Supreme Court Decision 95Do2090 Decided October 11, 1996 (Gong196Ha, 3366), Supreme Court Decision 2009Do10681 Decided September 9, 2010 (Gong2010Ha, 1948) Supreme Court Decision 200Do573939 Decided September 30, 2010

Defendant 1 and two others

Defendant 1 and one other and prosecutor (Defendant 3)

Law Firm Sejong et al.

Seoul High Court Decision 2011No337 decided March 25, 2011

All appeals are dismissed.

Each ground of appeal is examined.

1. Judgment on Defendant 1’s grounds of appeal

A. As to the first ground for appeal

“Profit-making purpose” under Article 8-2(1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 9919, Jan. 1, 2010; hereinafter “former Aggravated Punishment Act”) refers to the purpose of obtaining wide economic benefits (see, e.g., Supreme Court Decisions 2009Do1342, Feb. 11, 2010; 2010Do7289, Nov. 11, 2010).

The lower court determined as follows: (a) Defendant 1 conspired with Co-Defendant 1 in preparing and submitting a false list of total tax invoices or the list of total tax invoices by customer in collusion with the lower court, etc.; (b) there was an incidental purpose for Defendant 1 to make it helpful for the aforementioned Defendant to maintain or receive orders from the large enterprises, such as ELE, etc., or from foreign countries, to list it on the KOSDAQ with the main purpose of maintaining or receiving orders from ELE; and (c) such purpose may be deemed to aim at widely acquiring economic benefits; (d) thus, it constitutes “for profit-making purpose” as stipulated in Article 8-2(1) of the former Aggravated Punishment Act.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to Article 8-2 (1) of the former Act, as alleged in the grounds of appeal.

B. As to the grounds of appeal Nos. 2 and 3

Article 8-2 (1) of the former Aggravated Punishment Act provides that "any person who commits a crime under Article 11-2 (4) and (5) of the Punishment of Tax Evaders Act for profit shall be punished aggravatingly as follows." Article 1 of the former Aggravated Punishment Act provides that "Where the sum of the supply values, or the total purchase values, entered in the tax invoices and invoices, or the total purchase values, entered in the list of total tax invoices or invoices, is five billion won or more (hereafter in this Article referred to as "total supply values, etc.") is five billion won or more, he/she shall be punished by imprisonment for at least three years shall be punished by imprisonment with labor." Meanwhile, Article 11-2 (4) of the former Punishment of Tax Evaders Act provides that "any person who enters in the list of total supply values, etc., but fails to deliver the goods or services under the provisions of the Value-Added Tax Act or who enters in the list of total tax invoices or invoices by seller," and Article 11-2 (3) of the Corporate Tax Act provides that "any person who enters in the list of total Tax invoices or invoices by seller or seller shall be issued not more than three years:

According to these provisions, where an act under each subparagraph of Article 11-2 (4) of the former Punishment of Tax Evaders Act is committed without supplying goods or services, it is in principle established one crime for each document when receiving tax invoices or invoices, or when submitting a sales and aggregate tax invoice by customer, but Article 8-2 (1) of the former Aggravated Punishment Act stipulates that "for profit" and "the total amount of supply" are more than a specified amount, the act under Article 11-2 (4) of the former Punishment of Tax Evaders Act shall be combined with the act under Article 11-2 (4) of the former Punishment of Tax Evaders Act, and the statutory punishment therefor shall be prescribed. Thus, the application of Article 8-2 (1) of the former Aggravated Punishment Act shall be determined on the basis of the total amount of supply values entered in tax invoices, invoices, sales and aggregate

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the number of crimes in violation of Article 8-2 (1) of the former Aggravated Punishment Act, the total amount of supplied values, or the maximum amount of fines, as alleged in the grounds of

2. Judgment on Defendant 2’s grounds of appeal

Article 5 (1) of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 9170 of Dec. 26, 2008; hereinafter the same) provides that "any officer or employee of a financial institution in connection with his/her duties" refers to "related to all business affairs dealt with by the officer or employee of the financial institution accompanying his/her position." If an officer or employee of a financial institution receives money or valuables or other benefits from his/her customer from his/her customer, it shall be deemed that the customer of the financial institution has received money or other benefits from his/her former customer, and it is merely an exceptional price in light of social norms, or it shall not be deemed that there is no relation with his/her duties unless there are special circumstances, such as where it is clearly recognized that personal-friendly relationship is due to the need for school division. In addition, where the nature of the money or valuables received by an officer or employee of a financial institution under Article 5 of the same Act as consideration for his/her duties and the nature of acts other than duties is indivisible, such act shall be completely indivisible (see, etc.

Based on its adopted evidence, the court below acknowledged the fact that Defendant 2 borrowed KRW 180 million from Co-defendant 2 as interest free of charge as stated in the facts charged, and determined that the above Defendant’s financial profit equivalent to the above Defendant’s above borrowed interest is an indivisible combination of the nature of the Defendant’s act other than duties and other than duties, and the nature as compensation for business relationship with respect to the collection and management of investment money and other acts other than duties of Co-Defendant 2, which was in charge of the Defendant at the time, and the nature as compensation for personal-friendly relations is indivisible.

In light of the above legal principles and records, the judgment of the court below is just, and there is no violation of the rules of evidence or misapprehension of legal principles as to job relationship under Article 5 (1) of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes

3. Judgment on the grounds of appeal by the prosecutor

Article 357(1) of the Criminal Act provides that "illegal solicitation" in the crime of accepting and taking property in breach of trust refers to solicitation against social norms and the principle of trust and good faith. In determining this, the contents of solicitation, the amount and form of the property received or provided in relation thereto, and the integrity of the business administrator, who is the legal interest protected, should be comprehensively examined (see, e.g., Supreme Court Decisions 95Do2090, Oct. 11, 1996; 2009Do10681, Sept. 9, 201). Such legal principle applies to "illegal solicitation" under Article 22(3) of the Certified Public Accountant Act.

After recognizing the facts as stated in its reasoning based on the employment evidence, the court below affirmed the judgment of the court of first instance which acquitted all the Defendant of the primary and conjunctive charges, on the ground that it is difficult to deem that the reference to stock value assessment, such as the statement in the facts charged by the vice president of the Ahycell to Defendant 3, a certified public accountant, was an illegal solicitation contrary to social norms.

In light of the above legal principles and records, the judgment of the court below is just, and there is no violation of the rules of evidence or misapprehension of legal principles as to the concept of illegal solicitation in violation of Article 22 (3) of the Certified Public Accountant Act or breach of trust.

4. Conclusion

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

Justices Min Il-young (Presiding Justice)