(영문) 서울중앙지방법원 2014.2.7. 선고 2013고합632 판결

When the defendant fails to pay the above fine, the defendant shall be confined in the workhouse for the period calculated by converting the amount of KRW 10,000,000 into one day.

However, the execution of the above imprisonment shall be suspended for three years from the date this judgment becomes final and conclusive.

Reasons

Criminal facts

【Criminal Power】

On October 25, 2012, the Defendant was sentenced to one year of imprisonment and two years of suspended execution in violation of the Labor Standards Act in the Daegu District Court’s Ansan Branch, and the judgment became final and conclusive on November 2, 2012.

【Criminal Facts】

As the representative director of D Co., Ltd. (hereinafter referred to as D), the defendant is a person who actually operated E Co., Ltd. (hereinafter referred to as "E") established on March 17, 2003 for the purpose of constructing apartment-type factories.

In order to secure a new site for factory construction in early 2003, the Defendant tried to purchase the land located in Guro-gu Seoul Metropolitan Government G site (hereinafter “the instant land”) under the name of E, which is the only property of F Co., Ltd. (hereinafter “F”). However, the Defendant proposed that the Defendant take over the entire F shares of the instant land on the ground that the F Co., Ltd., a representative director and a real shareholder, sell the instant land only on the ground that the corporate tax is imposed at an amount equivalent to KRW 2.6 billion and the corporate tax should be paid to the major shareholder himself/herself. In the event of transfer of shares, KRW 50 billion is imposed on the capital gains tax of KRW 1 billion and securities transaction tax of KRW 50 million.

However, from 1976 to 1976, when the Defendant was responsible for the acquisition of F shares on the ground that contingent liabilities are likely to occur, I, who had been well aware of the tax law, had been working for a long time as a tax official of the National Tax Service, was exempted from the taxation liability of H himself as the F major shareholder by disposing of the entire shares to a third party before he sold the instant land to E, and proposed that F sell the instant land to E, but the Defendant sold the instant land to E, deducted the funds deposited in the F account from the name of the purchase price, and made use of the method to pay H as the purchase price for the said shares, and that I introduced the J as a tax accountant to deal with the practical affairs, thereby inducing the Defendant to embezzlement funds of I, J and F, and evade corporate tax to be imposed on F.

1. According to the above plan of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), on April 25, 2003, J entered into a contract for stock transfer/acquisition that H sells the entire F shares to L who is a bad credit holder at the office of the defendant in Yeongdeungpo-gu Seoul Metropolitan Government, for the first time, at the office of the defendant in Yong-gu, Seoul, with I, and at the same time entered into a contract for stock transfer/acquisition that H sells the instant shares in excess of KRW 10.125 billion to E. Accordingly, on April 25, 2003, the J paid the remainder as the down payment amount of KRW 920,500,000 from the defendant in accordance with the above land sales contract and kept for F; the K paid the remainder to H in order to keep the said shares in excess of KRW 8.28,50,000 from the defendant in the same place on the 30th of the same month to the above 26.5 billion won of the shares transfer.

Accordingly, the defendant, in collusion with I and J, embezzled by arbitrarily using 10.1 billion won in selling land owned by the victim F.

2. On March 31, 2004, the ICJ violated the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax) did not report the sale of the instant land to E even though F sold the instant land to E, and discontinued F after fully withdrawing the F’s corporate account and paying H or I the F to H or I, and made it difficult or impossible for the tax authorities to collect F’s corporate tax from F to collect KRW 2674,698,98,981 by allowing L who is a bad credit holder to take over the F’s stocks.

Accordingly, the defendant, in collusion with I and J, evaded corporate tax of KRW 264,698,981 by fraud or other improper means.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness M, H, J and L;

1. Each protocol of examination of the suspect against the accused, L, J, and I by the prosecution;

1. Each prosecutor's protocol of statement concerning I and H;

1. The head of the regional tax office's accusation, the details of the offense, and written opinion on the disposition of the head of the regional tax office, each written confirmation, each letter of confirmation, each letter of acceptance, each copy of the receipt, copy of the stock transfer and takeover contract (the transferor H and transferee L), copy of the real estate sales contract (the buyer L), copy of the receipt (the buyer EN), copy of the receipt, E (the amount of KRW 00 million), copy of the receipt, copy of the document of transaction by E (the former) account, copy of the purchase price flow, copy of the cashier's checks, copy of the cashier's checks, cash flow, copy of the passbook transaction, bank slips and passbook transaction statement related to the funds flow, F corporate register, additional reasons for the request for examination, written opinion on appeal, written request for examination, and investigation report

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 3(1)1 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 11304, Feb. 10, 2012); Article 35(1), the main sentence of Article 33, and Article 30 of the Criminal Act (amended by Act No. 8138, Dec. 30, 2006); however, the maximum of statutory penalty shall be 15 years of imprisonment with prison labor prescribed in the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010); Article 8(1)1 and (2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 7767, Dec. 29, 2005); Article 30 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 8138, Dec. 30, 2006); Article 30 of the Punishment Act

1. Handling concurrent crimes;

The latter part of Article 37 and the first sentence of Article 39 (1) of the Criminal Act

1. Aggravation for concurrent crimes;

Articles 37 (former part of Article 37, Article 38 (1) 2 and 50 of the Criminal Act [Aggravation of concurrent crimes with imprisonment with prison labor as provided for in the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax) heavier

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 55(1)6 of the Criminal Act (The consideration of favorable circumstances among the reasons for the form of punishment)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration of favorable circumstances among the grounds for both punishment)

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A. The Defendant had never conspiredd with I, J and the criminal act of embezzlement or tax evasion. In other words, the Defendant heard that the person to take over F was aware by J, and was merely a purchase of the instant land from F, and was unaware of the fact that F was taken over on the ground of this L, and was not involved in the process that I and J closed down the F.

B. The Defendant, on the ground that the Defendant is the F major shareholder, designated the Defendant as the secondary taxpayer by the F and paid corporate tax imposed by the F before the payment deadline expires, and thus, the crime of tax evasion is not committed.

2. Facts of recognition;

According to the evidence above, the following facts are acknowledged.

A. On April 30, 2003, J concluded a sales contract for the instant land between the Defendant and the Defendant representeded at the D Office, and received the check of KRW 5,284,33,152 from the intermediate payment of KRW 8,284,50,00, which was paid by the Defendant on the said day, from the Defendant, to the bank account of the 0-stock company designated by H from the E account. The remainder of intermediate payment of KRW 3,00,166,848 was transferred from the E account to the bank account of the 0-stock company.

B. All executives of H and F resign on April 30, 2003, L was registered in the F’s corporate register as a director on the same day, and on the same day, E’s ownership transfer registration was completed from F to F for the instant land.

C. On June 26, 2003, E deposited KRW 920,500,000,000 for the instant land at F’s bank account. around July 2003, J deposited this amount with KRW 100,000 won per face value 9 and check and delivered it to I. B around August 2003, the above CD 4 billion was deposited with P’s own relative name, and the remaining CD 50,000 won was deposited with P’s account in the name of Skin Q. Around August 2003, the Defendant lent KRW 380,000,000,000 to D operated by the Defendant.

3. Determination

(a) Public invitation with I, etc.;

In full view of the following circumstances acknowledged by the evidence adopted earlier, the Defendant agreed that “A third party whose physical color had taken over the F stocks from H and that F will be established by the Defendant, and that F will pay the purchase price of the instant land to H, and that E will pay an amount equivalent to 110% of the purchase price of the instant land to H with the purchase price of the instant land, and that F will take responsibility for corporate tax issues arising from the acquisition of the instant land and the transfer of the instant land, but the difference between the purchase price of the instant land and the purchase price of the instant land, and that the Defendant was deemed to take part in the embezzlement and the tax evasion crime through the above agreement, and thus, the Defendant and the defense counsel’s assertion against this would not be accepted.

1) At an investigative agency, I heard that “I would refuse to sell only the instant land and take over F itself on the ground that corporate tax is imposed at KRW 2.6 billion when H sells only the instant land,” and thought “I would eventually be able to become mutual benefit unless corporate tax is imposed. A would purchase F shares owned by the instant land and acquire the company, but in fact, I would like to pay for the purchase price of the land and pay for the remaining amount after settlement of the purchase price of the land.” In light of the first issue of corporate tax after selling the land, I would like to be at issue, “I would like to impose corporate tax on the representative of the corporation if I discontinues the business without reporting the purchase price of the land, and would like to be impossible to collect corporate tax by closing the business under the name of F with no means to collect corporate tax if there is no representative of the corporation, and I would like to have known that I would have known that there would be no amount of credit in the Defendant’s name at the time when I would have sold the land under the name of F and made it impossible to collect corporate tax.

2) ① In this court, H stated in this court that “I would purchase only the land of this case. I would like to do so. I would know that I would not do so. I would thereafter conclude a contract on the acquisition of a corporation. I would like to conclude a contract on the transfer and acquisition of shares by negotiating several times with the Defendant, ② stated in an investigative agency that “I would conclude a contract at any time, anywhere, A would do so,” ③ there was a situation in which I would have to pay the acquisition price of shares by receiving a loan from a financial institution. ③ The purchase price of the land of this case was 110% of the acquisition price of shares to be paid to H, and there was a need to determine the amount of the acquisition price of shares to be paid to H and the timing for such purchase, and that I would have to conclude a contract on the transfer and acquisition of shares directly between H and the representative director, and that I would have to conclude a contract on the transfer and acquisition of shares by taking account of the fact that I would have been directly seeking the acquisition and transfer price of shares between H and the representative director.

3) If H sells the instant land as the representative director of F, it is separate from the corporate tax equivalent to approximately KRW 2.6 billion imposed on H, separately from the corporate tax equivalent to the capital gains from the transfer of the instant land, H imposes approximately KRW 2 billion on the dividend income in the process of receiving the dividend of capital gains from the transfer of the instant land, and imposes approximately KRW 4.6 billion on H. In contrast, if the shares are transferred to H, H bears only the capital gains tax of KRW 1 billion and the securities transaction tax of KRW 50 billion, and the Defendant actively wishes to purchase the instant land to pay H more than the market price by actively taking account of the acquisition price after deducting the tax to be paid from the purchase price of the instant land when transferring F’s shares to H around December 202.

4) The Defendant, without the burden of corporate tax, etc., intended to acquire the instant land owned by F in the name of E, a major shareholder, and proposed a transaction method by which the Defendant had a third party acquire F’s shares and settle the acquisition price of the instant land with the purchase price of the land. The Defendant appears to have agreed to pay to F KRW 920,500,000,000, which is equivalent to 10% of the acquisition price of the instant land, in return for the liability and handling the issue of corporate tax, etc. to be imposed on F following the transfer of the instant land. Accordingly, the Defendant not only acquired the instant land under the name of E, which was relatively small costs, but also allowed E to implement the apartment-type factory construction project

5) At the time, F had possession of the instant land as the sole property and sold it to a seed pool without any property or business activity, and the fact that F had no means to pay corporate tax, etc. due to the transfer of land and eventually no means to close the business is expected to be generally anticipated. The Defendant, as a matter of course, examined F’s acquisition of stocks according to H’s proposal, knew that the instant land is the only property of F, and e.g., obtain profits of KRW 920,500,000,000, which is the difference between the acquisition price of stocks and the purchase price of the instant land through a stock transfer contract and the instant contract for purchase and sale of land, while imposing taxes of KRW 4,60,00,000,000,000, on the other hand, has no economic incentive to conduct the said transaction. However, the Defendant

6) Around 196, the Defendant was aware of the tax official in charge of S's investigation at the time when he worked as S's management department, and there was a friendly relationship between the Defendant's Doctrine around August 9, 2003 to lend a large amount of KRW 780 million to D' operated by the Defendant, and upon the commencement of an investigation by ordering the head of the regional tax office to investigate the instant case on July 2007, I stated that "I would like to know that I would have acquired the actual F's Doctrine and L's Doctrine," and that it was difficult for the Defendant to receive 0's Doctrine's Doctrine and Doctrine's Doctrine from the point of view that I would have been asked that I would have to purchase the instant land at a low office, and that I would not have any way to submit a false statement that "the Defendant would not have any contact with Q's Doctrine and Doctrine."

(b) Whether the act of tax evasion has been committed;

The second tax liability is established when the facts constituting the requirements, such as the delinquency of the principal taxpayer, etc., and the second tax payment notice against the secondary taxpayer has the nature of an independent disposition against the principal taxpayer (see Supreme Court Decision 2006Du11750, Oct. 23, 2008). The part in the indictment of this case is about the evasion of corporate tax imposed by the F, and it is not about the secondary tax evasion imposed on the Defendant. Thus, the Defendant and the defense counsel’s assertion on the premise that the Defendant did not evade the second tax payment obligation imposed on the Defendant is rejected.

Reasons for sentencing

1. The scope of punishment by law;

Imprisonment of up to 2 years to 11 months, fine of up to 2,674,698,981 KRW 6,686,747,452

2. Sentencing criteria:

(a) Sentencing Criteria for the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

[Determination of Punishment] Type 4 (not less than 5 billion won, less than 30 billion won)

[Special Mitigation] Company or Family Company (which can be deemed to have embezzled F’s land disposal price with the consent of I who was the actual one shareholder of F)

[Scope of Recommendation] Imprisonment of 2 years and 6 months to 5 years (Discretionary Zone)

(b) Application of standards for handling multiple crimes;

[Scope of Recommendation for all Crimes] Imprisonment for not less than two years and six months [limited to the lowest limit of the sentencing criteria because it is concurrently a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax) for which no sentencing criteria

3. Determination of sentence;

The Defendant, in collusion with I who is a tax official and J who is a tax accountant, acquired F in the name of L with no economic capacity to allow E, a major shareholder, to acquire the instant land without the burden of corporate tax. In light of the following: (a) selling the instant land to E; (b) evading corporate tax amounting to KRW 2.6 billion; and (c) embezzlement of KRW 10.1 billion in the process of evading corporate tax by paying the FF capital; and (b) the evaded tax amount and embezzlement amount are large amounts, etc., the Defendant is not guilty.

However, the embezzlement of this case is virtually a means of tax evasion, and it cannot be deemed that it constitutes a separate illegal act. The direct benefit from the crime appears to have been achieved by proposing the crime of this case, the defendant's use of the land in the process of purchasing the land in this case for business implementation, there are circumstances that may be considered in the course of criminal participation, the defendant has no criminal record for the same kind of crime, the defendant must be sentenced in consideration of equity in the case of judgment at the same time as the violation of the Labor Standards Act stated in the judgment, and all other sentencing conditions shown in the argument of this case, such as the defendant's age, character, conduct and environment, shall be determined as ordered by the order.

It is so decided as per Disposition for the above reasons.

Judges

Freeboard of the presiding judge;

Judges Seo-won

Judges 00 Efficacy

Note tin

1) Investigation records No. 954-955

2) 90-991 pages, 993 of the investigation records

(iii) 94 pages of the investigation records

4) A person who has entered into an exclusive brokerage contract with D operated by the Defendant for the instant land (as the investigation record No. 1042 pages);

5) The Defendant appears to have received data about F from T, etc., a tax accountant in charge of F through R, and have also examined how to take over F, after having taken over the deficit corporation, the Defendant had the corporation take over the deficit (Article 1042 of the Investigation Records).

6) 피고인이 에게 '형님이 와서 그 (확인서) 문안을 다 수정해주고 이랬잖아. 그래서 난 그냥 하라는 대로 하면 모든 게 다 알아서 다 하시고 이럴 줄 알았어, 우리 회사에는 피해가 전혀 없는 줄 알았는데' 라고 진술하였다(수사기록 제785쪽),

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