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대법원 2013.03.28 2011도14597
특정범죄가중처벌등에관한법률위반(조세)
Text

The appeal is dismissed.

Reasons

The grounds of appeal are examined.

For the crime of tax evasion under Article 9 of the former Punishment of Tax Evaders Act (amended by Act No. 9919, Jan. 1, 2010; hereinafter the same shall apply) and Article 8 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 9919, Jan. 1, 2010; hereinafter the same shall apply), the term "Fraud and other unlawful act" means an act that enables the tax evasion and which is recognized as unlawful under social norms, such as an act that is recognized as an act that makes it impossible or considerably difficult to impose and collect taxes, i.e., a deceptive act that makes it impossible or considerably difficult to do so, and it does not constitute a mere failure to report under tax laws or making a false report without accompanying any other act. In addition to active circumstances, it can be recognized that the imposition and collection of taxes is impossible or considerably difficult where it appears in addition to the act of making false entries in books, check, etc., repeated use of multiple borrowed accounts, etc.

(see, e.g., Supreme Court Decision 2006Do5041, Aug. 23, 2007). Meanwhile, the deposit was made by lending the deposit account in another person’s name.

However, it is not determined that the act is an active act of concealing income in any case regardless of circumstances such as the motive and circumstance of the specific act. In addition to the unreported or under-reported report of taxable objects, the repeated exchange of means of payment such as false entry and check, and other concealments are included in the book.

deposit in a borrowed account shall also be deposited in several borrowed-name accounts in a depository account.

The intention of active concealment is to repeat deposits to another borrowed account in succession, or to make deposits once, but the effect of concealment is remarkable due to the special relation between the nominal owner and the nominal owner.