Defendant

Kim Young-American

Law Firm Chungcheong, Attorneys Kim Hong-soo et al.

A defendant shall be punished by imprisonment for a term of four years and a fine of ten billion won.

When the defendant fails to pay the above fine, the defendant shall be confined in the workhouse for the period calculated by converting the KRW 100 million into one day.

544 days of detention before the sentence of this judgment shall be included in the above imprisonment.

The defendant shall be ordered to pay an amount equivalent to the above fine by provisional payment.

The charge of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Delivery of False Tax Invoice) and the Punishment of Tax Evaders Act is acquitted.

[207Gohap68]

Co-defendant 1 purchased non-indicted 7 and 8 with non-indicted 1's non-indicted 7 and supplied them to co-defendant 2 and non-indicted 9. The defendant, together with co-defendant 4, established a gas station operating company with the name-time branch office such as non-indicted 10 who has no ability to pay taxes, and sold the transit supplied with non-indicted 2 and non-indicted 9 as non-indicted 2 and non-indicted 9 to the gas station in the Seoul metropolitan area, and then imposed taxes such as value-added tax, etc. at the time when the above tax is imposed, for the purpose of evading the collection of taxes, by leaving the gas station operating company such as the non-indicted 3 et al., which was established and operated on the ground of the name-time branch office as above, in fact impossible to collect taxes or significantly difficult to collect taxes due to fraud

1. On January 12, 2005, the Defendant, along with Co-Defendant 4, set up Nonindicted Co. 3 corporation by designating Nonindicted Co. 11, who has no tax payment capacity, as the head of the Gyeonggi Yang-gun, Samju-gun Paedong (number 3 omitted). Co-defendant 1, along with Nonindicted Co. 7 and 8, purchased non-data via an unregistered method between January 21, 2005 and June 30, 2005, and supplied it to Co-Defendant 2, etc.; Co-defendant 2, etc., supplied the market price of non-data purchased as above to Nonindicted Co. 3 corporation operated by the Defendant, etc.; the Defendant et al. sold the above total supply price of non-data 26,285,191,257 won via the supply price of non-data 26,285,19,257 won, and reported the above amount to Nonindicted Co. 3, 2005.

Accordingly, the Defendant, in collusion with Co-Defendant 4, evaded value-added tax amounting to KRW 2,626,519,242 due to fraud or other unlawful acts, such as making it impossible or considerably difficult to collect taxes.

2. On July 14, 2005, the Defendant, along with Co-Defendant 4, set up Nonindicted Co. 13 in Ulsan-gu New-dong 2 (number 5 omitted), by designating Nonindicted Co. 12, who has no tax ability, as the head of the one-time branch, and establishing Nonindicted Co. 13. Co. 1, from July 14, 2005 to December 31, 2005, purchased non-data via an unregistered method between Non-Indicted 7 and Non-Indicted 8, and supplied it to Co-Defendant 2, etc., and Co-Defendant 2, etc., supplied the market price of non-data purchased to Non-Indicted Co. 13 operated by the Defendant, etc., and the Defendant et al. sold the above total supply price of non-data 8,646,442,654 won to the business partners, such as the above ○○○, etc., and reported the above amount as the sales amount, and left it alone at the time of January 25, 13.

Accordingly, the Defendant, in collusion with Co-Defendant 4, evaded value-added tax of KRW 864,644,936 due to fraud or other unlawful act, such as making it impossible or considerably difficult to collect taxes.

[208Gohap51]

Defendant in collusion with Co-Defendant 4:

1. Notwithstanding the fact that Nonindicted Co. 5 was supplied with oil from Nonindicted Co. 4 in the office of Songpa-gu Seoul (hereinafter omitted), Nonindicted Co. 5 reported the value-added tax amount for the first period of January 2006 at the office of Songpa-gu Seoul on April 25, 2006, Nonindicted Co. 5 entered the list of total tax invoices in the list of total purchase prices of KRW 7,162,981,817 from Nonindicted Co. 4 as if it actually purchased oil from Nonindicted Co. 4 as if it was entered in the list of total purchase prices, and filed the list of total purchase prices of KRW 7,162,98,183, including the deduction of KRW 716,298,183, after the due date of return on July 25, 2006. In filing the value-added tax return of Nonindicted Co. 5 Co. 5, it included the list of total purchase prices on the purchase tax invoice two times from that time to July 25, 2006.

2. Notwithstanding the fact that Nonindicted Co. 5 was provided with oil from Nonindicted Co. 5’s office in October 25, 2006, when Nonindicted Co. 5 reported the value-added tax amount for the second period of February 2006, Nonindicted Co. 5 filed a list of total tax invoices by entering the said amount in the list of total purchase prices as if it was actually purchased from Nonindicted Co. 6 Co. 5,558,236,363, and then filed a return on the list of total purchase prices, including the amount of KRW 1,155,823,637 after the due date of filing the return, which included the deduction of KRW 1,155,823,637 after the due date of filing the return, from around that time to January 25, 2007, the value-added tax return of total purchase prices on the false purchase tax invoice was prepared as the purchase price amount on two occasions as shown in attached list 2, and the final return of the value-added tax was deducted by fraud or other unlawful methods.

[207Gohap68]

1. In the second protocol of trial, each statement of co-defendant 1 and 4;

1. In the second protocol of trial, each part of the defendant and co-defendant 2's statements;

1. The statement made by Nonindicted Party 10 in the third trial record

1. Each statement made by Co-defendant 4 and Nonindicted 11 in the fourth trial record

1. The defendant's partial statement in the fourth protocol of trial;

1. Each statement made by Nonindicted 14 and 15 of the sixth trial records;

1. Statement made by Co-defendant 4 in the fifteenth trial records;

1. Second-time protocol concerning the examination of the accused by the prosecution;

1. A protocol of examination of suspect against co-defendant 2 and 4 by the prosecution;

1. Each prosecutor examination protocol against co-defendant 1;

1. Statement of prosecutorial statement on Nonindicted 15

1. Each investigation report (the current status of reporting value-added tax on five companies, including Nonindicted Co. 3, etc., estimates of corporate tax and income tax, and discovery of transaction lists related to the supply of non-data via supply);

[208Gohap51]

1. Statement made by Co-defendant 4 in the fifteenth trial records;

1. Statement made by Nonindicted 10 of the 16th trial record

1. The statement made by Nonindicted Party 2 in the 20th trial record

1. A protocol concerning interrogation of suspect against co-defendant 4;

1. Statement of prosecutorial statement on Nonindicted 16

1. The last day of Nonindicted 2’s preparation

1. Each investigation report [the list of tax invoices by Nonindicted Co. 5, Nonindicted Co. 6, the list of tax invoices by customer and the report accompanying copies by customer, the report accompanying copies of the accusation against Nonindicted Co. 4 operated by the suspect], each accusation, tax invoice (the supplier-Non-Indicted. 5), a copy of the report on completion of data investigation, and the list of tax invoices by customer

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

Article 8(1)1 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); Article 9(1)3 of the former Punishment of Tax Evaders Act (Amended by Act No. 8138, Dec. 30, 2006); Article 30 of the Criminal Act (Amended by Act No. 1, 2007Gohap688; hereinafter the same shall apply); Article 8(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Crimes; Article 9(1)3 of the former Punishment of Tax Evaders Act; Article 30 (1)1 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 8138, Dec. 30, 2006; hereinafter the same shall apply); Article 8(1)1 of the former Punishment of Tax Evaders Act; Article 30 of the former Punishment of Tax Evaders Act (Amended by Act No. 13081, Mar. 1, 2081, 29).

1. Aggravation for concurrent crimes;

(a) former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (a) (aggravating concurrent crimes to imprisonment with prison labor as provided for in Article 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) in the case of imprisonment with prison labor, and Article 38(1)2 and Article 50 of the

B. The former part of Article 37 of the Criminal Act and Article 4(1) of the former Punishment of Tax Evaders Act (amended by Act No. 9919, Jan. 1, 2010); and

1. Discretionary mitigation;

Articles 53, 55(1)3, and 55(1)6 of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Determination as to whether the defendant bears joint principal liability

A. Defendant’s assertion

The Defendant only participated in raising funds for the initial business, and since Co-Defendant 4, who was a partner, handled without material oil, the Defendant does not support his criminal liability.

(b) Evidence relations and recognized facts;

① Co-defendant 4, who led to the confession of all the facts charged in the instant case in this court, had been in operation of the △△△△ station prior to the instant case between the Defendant and the middle school. However, in around 2004, the Defendant consistently stated that: (a) since he instructed Co-Defendant 4 to the effect that “The money in question is harmful to the gas station business; (b) he was employed by the Defendant and was in full charge, he received an average of KRW 3 million per month; and (c) the place of business continued to change under the intention of tax evasion, but the office employees continued to be the same as 10 persons.

② The Defendant himself also established and operated Nonindicted Co. 3, Nonindicted Co. 13, Nonindicted Co. 4, Nonindicted Co. 6, and Nonindicted Co. 6 with his own prosecutorial investigation, on the ground of one-time branch office, such as Nonindicted Co. 3 Co. 11, Nonindicted Co. 4, Nonindicted Co. 2, and Nonindicted Co. 6 Co. 10. However, he was aware of the oil date, and he did not know the oil date, and the Defendant did another work, such as the purchase of gas stations, but the Defendant did not make a general payment of the daily expenses to Nonindicted Co. 15, but made a statement to the effect that all daily payment and salary payment were dealt with jointly (No. 689-690 of the investigation records of the case No. 2007Da688).

③ Co-defendant 2 is responsible for Co-defendant 4’s transfer to Nonindicted Co. 3, and the chief of the headquarters made a statement in the prosecutor’s investigation that he was aware of the Defendant, so that Co-defendant 4’s above statement conforms to Co-defendant 4’s above statement (

④ From July 1, 2006, Nonindicted Party 10 stated that the branch office of Nonindicted Company 6 was the head of Nonindicted Company 6 upon the Defendant’s request from Co-Defendant 4. The Defendant managed the revenue of oil station business, decided the expenditure by giving instructions to Co-Defendant 4, and the name of the said company was also given the name of the said witness to the effect that the Defendant was posted (the third protocol of trial).

⑤ Nonindicted 11 stated that, from January 2005, Nonindicted 11, at the Defendant’s request, the business registration of Nonindicted 3 was made and the branch office was made, Co-Defendant 4 was in charge of business management and orders, and Nonindicted 15 was in charge of accounting. Nonindicted 17 and Nonindicted 15 stated that “When four are the president, she would be able to compensate in money later,” and that there was Nonindicted 15 instructed the Defendant to cause damage to the said witness when she was out of one room (the fourth protocol of trial).

⑥ Nonindicted 18 stated that the Defendant raised funds, Co-Defendant 4 was in charge of the business, and the people called the Defendant as Kim President, and the name of the Defendant was the same as that of the middle school, and that the oil station business in this case took the form of a partnership among the Defendant, Co-Defendant 4, Nonindicted 18, and 19, and the Defendant was able to take the form of a partnership business among the Defendant, Co-Defendant 4, Nonindicted 18, and 19 (the fifth protocol of trial) from February 2006 to the effect that the Defendant was dedicated to the construction project (the fifth protocol of trial).

7) Nonindicted 14 testified that the witness witness, who was a member of the defendant, established a corporation for the purpose of disguised transaction by the defendant, and that he had the authority to manage the flow of funds (the sixth trial record), and that Nonindicted 4 was the defendant and Nonindicted 15 stated that he did not have the right to make a decision and that he managed the passbook (the 17th trial record).

④ The witness Nonindicted 15, who was employed as an employee in charge of accounting, stated that the Defendant, on January 2005, established a company in the order of Nonindicted 3, Nonindicted 13, Nonindicted 4, and Nonindicted 6 on the ground of his branch office, and led the Defendant to discontinue his business and establish another company again. Defendant 2 was provided with most of the non-indicted 5 oil, and the plan was prepared to separately create the purchase data. Co-Defendant 4 was in charge of managing the business, having contact with the non-indicted 5, and securing oil, and the above witness performed the role of remitting the proceeds of the oil station business to the Defendant’s name account.

C. Sub-decision

According to each evidence including the above statements, it is recognized that the defendant borrowed money from non-indicted 20, etc. to mixed with the initial business fund, and Co-defendant 4 et al. to participate in the business of the gas station in this case. Co-defendant 4 was exclusively responsible for the oil system, but the defendant continued to participate in the oil station business for the recovery of investment money even after the construction execution project was conducted concurrently in around 2006, and the defendant appointed the head of the Ba branch, such as non-indicted 2 and 10 for the purpose of tax evasion, and operated the business of this case by ordering or allowing the co-defendant 4 to commit the crime of tax evasion, such as the purchase of non-data petroleum, closure of the place of business, and re-establishment.

Therefore, the defendant, together with Co-Defendant 4, is a substantial business operator of the gas station of this case, and is obligated to pay the value-added tax stated in the facts of crime as the beneficial owner under the Framework Act on National Taxes, and bears the joint principal liability for the crime of violation of the Act on the Aggravated Punishment, etc. of Specific

2. Judgment on whether to deduct input tax amounts from the evaded tax amount (related to the case No. 2007 high-priced 688);

A. Defendant’s assertion

The Defendant asserts that: (a) the tax evasion of Nonindicted Co. 3 and Nonindicted Co. 13 on the tax evasion is calculated on the basis of the output tax amount without deducting the input tax amount; (b) this is against the principle of substantial taxation; and (c) the input tax deduction should be made in calculating the tax evasion amount; and (d) the burden of proof should be permitted by other evidence in addition

B. Determination

According to Article 17 of the Value-Added Tax Act, the value-added tax amount to be paid by an entrepreneur to the Government shall be the amount computed by deducting the input tax amount from the output tax amount, but if the tax invoice has not been issued or the tax invoice received is not submitted, the input tax amount shall not be deducted. The tax amount to be determined in the criminal proceedings against the tax evasion offender shall be identical to the number and scope of the tax liability amount under the tax law to be imposed on the relevant tax evasion offender, and where the purchase tax invoice has not been issued or submitted, the input tax amount should be recognized without deducting the input tax amount from the output tax amount (see Supreme Court Decision 9Do5191, Feb.

According to each of the above evidence, the Defendant, along with Co-Defendant 4, can recognize that he received non-data oil without the purchase tax invoice from Co-Defendant 1, 2, etc., and if he did not receive the purchase tax invoice or did not submit the purchase tax invoice, the input tax amount cannot be deducted pursuant to the above legal principles. Thus, the input tax amount on the purchase amount equivalent to the supply price of non-data oil can not be deducted pursuant to the Value-Adde

Therefore, the defendant's above assertion is without merit.

3. Determination as to the portion of output tax amount among the evaded tax amount (related to the case of 2007 highest 68).

A. Defendant’s assertion

Although the output tax amount reported by the issuance of false sales tax invoices should be excluded in calculating the amount of evaded tax, the prosecutor indicted the Defendant, etc. on the premise that all the sales amount reported in the name of Nonindicted Co. 3 and Nonindicted Co. 13 in relation to the facts charged in the case of 2007Gahap68, under the premise that the amount of sales reported by the Defendant, etc. is a real supply. This part of the facts charged constitutes a case where there

B. Determination

Co-defendant 4, as a new business entity, began to stand for price competitiveness because it is difficult to accommodate the transaction partners established by the existing gas stations, and, in the case of non-data oil in the amount of KRW 60 billion, Co-defendant 2, the remaining quantity was supplied from co-defendant 1 (named as the head of the government) or from other non-data transaction, and stated at the time of prosecution investigation (No. 300 of the investigation record of the case No. 2007Gahap68), and even in the defendant interrogation of the trial date, Co-defendant 4 stated that the sales data of Non-Indicted 3 and Non-Indicted 13 were true transactions.

In addition, Non-Indicted 15, who is an employee in charge of accounting, stated that he received material oil of KRW 90 billion from Co-Defendant 2, Non-Indicted 9, etc. during the period of evasion; among the sales amount reported in the names of Non-Indicted 3 and Non-Indicted 13, the part which became a processing transaction up to the present date does not appear only one; and there is no ground that the defendant et al. utilized each of the above companies as the so-called "data". In light of the fact that the above facts constituting the crime in the case of 2007 Gohap68, 26,285,191,257, 205, 2005, and 8,646,42,654 won as a real transaction. Thus, the calculation of the amount of evaded tax based on the above supply value is just and without merit.

4. Determination on the assertion of tax invoice due to real transactions (related to the case No. 2008 Gohap51)

A. Defendant’s assertion

Among the purchase materials reported in the name of Nonindicted Co. 5, the materials that Nonindicted Co. 4 and Nonindicted Co. 6 purchased oil from Nonindicted Co. 6 were prepared on the basis of real transactions, so it is justifiable to deduct the input tax amount from the above purchase materials.

(b) Evidence relations and recognized facts;

① Co-defendant 4 consistently stated to the effect that, in the process of this court and prosecutorial investigation, Nonindicted Co. 4 and Nonindicted Co. 6 were so-called Paconcom made to secure false purchase data, they did not actually supply oil to Nonindicted Co. 5, and that the Defendant received profits by means of remitting money to Nonindicted Co. 22, 23, 24, and 25, the Defendant’s seat through Nonindicted Co. 21’s account (hereinafter “Nonindicted Co-Defendant 4”) (No. 100-103, No. 201-108, No. 108, Dec. 1, 2008).

② The witness Nonindicted 10 and 2 stated that the above Nonindicted 2 was the head of Nonindicted Company 4’s branch from the end of December 2005 to June 30, 2006. Nonindicted 16 stated that he was the head of Nonindicted Company 5’s subsidiary from January 2006 to September 2006 (the above investigation record is page 879-81).

③ In addition, according to the statement of accusation issued by the director of Seoul Regional Tax Office (No. 132-786 of the above investigation record), the National Tax Service, in order to resolve the problem that Co-Defendant 4 purchased without material oil and did not receive the purchase tax invoice, requested Co-Defendant 4 to take over the non-indicted 4 corporation on the ground of the president non-indicted 2 on December 28, 2005, and paid a certain amount of benefits in return. Non-indicted 4 corporation did not deal with petroleum products without any human and material equipment that can handle large quantities of oil, and each tax invoice of the non-indicted 4 corporation and non-indicted 5 corporation used the same form (Internet address omitted) and each shipment slip was used by the same company (dded long). In light of the fact that the shipping identification number at the lower end of each distribution slip is almost consistent, the National Tax Service judged that each of the non-indicted 4 corporation and non-indicted 5 corporation issued the same tax invoice is identical.

C. Sub-decision

In full view of the facts revealed in the evidence above, the defendant acquired or established non-indicted 4 and non-indicted 6 corporation on the ground of the president, non-indicted 2 and 10, respectively, in order to create a trade place where non-indicted 5 corporation will deliver a processed tax invoice to the non-indicted 3 corporation, non-indicted 13 corporation, and the non-indicted 5 corporation will issue and deliver a false tax invoice to each of the following companies without real supply, in order to prepare a list of total tax invoices as if the non-indicted 5 corporation actually purchased oil from the above companies and deducts the input tax amount by making the final return of the value-added tax return on the ground of the change in the order of the place of business name of the non-indicted 3 corporation, non-indicted 13 corporation, and non-indicted 5 corporation.

5. Determination as to specific details of output tax amount among the evaded tax amount (related to the case of 2008 Gohap51).

A. Defendant’s assertion

Even if the transaction between Nonindicted Co. 4, Nonindicted Co. 6, and Nonindicted Co. 5 is proved to be a processing transaction to secure the purchase data, not only the input tax amount but also the output tax amount should be specified in calculating the evaded tax amount in the facts charged. The facts constituting the crime in the case of 2008 Gohap51 are irrelevant to the time when there is no evidence to specify the output tax amount.

B. Determination

According to each evidence of the judgment, such as investigation report [the list of tax invoices by the purchaser and seller of non-indicted 5 and non-indicted 6 corporation], the value of supply, such as the ○○ gas station, by the first buyer of the year 2006, which was prepared on April 25, 2006, shall be KRW 7,642,678,182 (No. 18 of the investigation records of the case No. 2008Gohap51), 14,098,822,730 (the investigation records of the case No. 25 of the investigation records), 14,098,82,730 won, such as the ○ gas station, by the first buyer of the year 2006, which was prepared on October 25, 2006, the amount of supply by the buyer of non-indicted 13,790,918,180 won (the investigation records of the case No. 18), and the specific amount of the investigation records No. 274, etc.

1. Summary of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Delivery of False Tax Invoice) and the Punishment of Tax Evaders Act

Defendant in collusion with Co-Defendant 4:

(a)do not enter false matters in the list of the total tax invoice by buyer and submit it to the Government without supplying the goods or services under the Value-Added Tax Act;

(1) On April 25, 2006, there was no fact that goods or services were supplied to Nonindicted Co. 4's office located in the Dong-gu Seoul Special Metropolitan City (number 1 omitted), Nonindicted Co. 5's office. However, the serial number of the total tax invoice by buyer was entered into the serial number column of the total tax invoice by "1", "(business registration number 1 omitted)", "Nonindicted Co. 5', "3", "7,162,981,000" in the purchase column, and submitted to the government for the total tax invoice by buyer.

(2) On July 25, 2006, in the office of the above non-indicted 4 corporation and the office of the non-indicted 5 corporation did not provide goods or services to the non-indicted 5 corporation, the serial number column of the buyer by buyer does not include "(business registration number 1 omitted)," "non-indicted 5 corporation" in the trade name, "3" in the purchase column, and "13,28,167,000" in the supply price column, and submitted to the government the above buyer by buyer after making a false entry in the list of

(3) On October 25, 2006, the office of the non-indicted 6 corporation located in the Dongmun-gu, Seoul Special Metropolitan City, the Seoul Special Metropolitan City Mayor (number 2 omitted), and the office of the non-indicted 6 corporation did not supply the goods or services to the non-indicted 5 corporation. However, although the non-indicted 6 corporation did not supply the goods or services to the non-indicted 5 corporation, the serial number column of the buyer's tax invoice entered the "1", "1 business registration number 1 omitted), "the non-indicted 5 corporation", "3", "the purchase column", and "11,58,236,

(4) On January 25, 2007, in the office of the above non-indicted 6 corporation, notwithstanding the fact that the non-indicted 6 corporation supplied goods or services to the non-indicted 5 corporation, the non-indicted 6 corporation entered the serial number column of the total tax invoice into the "1", "(business registration number 1 omitted)", "non-indicted 5 corporation", "2" and "2,106,627,000" and submitted the above list of the total tax invoice to the government;

(b)not make false entries in the list of total tax invoices by customer without being supplied with the goods or services under the Value-Added Tax Act and submit them to the Government;

(1) On April 25, 2006, the office of Nonindicted Co. 5 located in Songpa-gu Seoul Metropolitan Area (hereinafter omitted), and Nonindicted Co. 5 did not receive goods or services from Nonindicted Co. 4, the serial number of the list of the total tax invoice by customer was entered into the serial number column of the list by customer list by “2,” “(business registration number 2 omitted),” “Nonindicted Co. 4,” “in the purchase column,” “3,” and “7,162,981,817,” and submitted the above list by customer list to the government.

(2) On July 25, 2006, although the office of the above non-indicted 5 was not supplied with goods or services from the non-indicted 5 corporation, the non-indicted 5 corporation entered the serial number column of the list of the total tax invoice by customer into the "1", "(business registration number 2 omitted)", "non-indicted 4 corporation", "3" and "13,28,167,272" in the item of the supply price by customer list by customer, and submitted the above list of the total tax invoice by customer to the Government;

(3) On October 25, 2006, in the office of the above non-indicted 5 corporation, although the non-indicted 5 corporation was not supplied with goods or services from the non-indicted 6 corporation, it entered the serial number column of the list of the total tax invoice by customer into the serial number column of the total tax invoice by customer, the name of "8", "(business registration number 3 omitted)," "non-indicted 6 corporation", "3", and "1,558,236,363", and submitted the above list of the total tax invoice by customer to the government.

(4) On January 25, 2007, the office of the above non-indicted 5, although the non-indicted 5 was not supplied with goods or services from the non-indicted 6 corporation, the serial number of the list of the total tax invoice by customer was stated in the serial number column of the list by customer, "1", "(business registration number 3 omitted)," "non-indicted 6 corporation", "2", and "2,106,627,000", and the above list of the total tax invoice by customer was submitted to the Government.

2. Determination

Legal concurrence refers to a case where one act appears to be an external constituent element of several crimes, but actually constitutes only one crime. Whether it is a single crime or several crimes must be determined by considering the evaluation of constituent elements and the legal interests protected by law (see, e.g., Supreme Court Decisions 2001Do1429, Jan. 15, 2004; 2002Do51, May 16, 2002).

As stated in the facts charged above, “any act of submitting a list of total tax invoices by purchaser to evade value-added tax without being supplied with goods or services, or submitting a false statement to the Government without being supplied goods or services by false entry” is one of the “Fraud and other unlawful means” as stipulated in Article 9(1) of the Punishment of Tax Evaders Act, which is not only the direct means of tax evasion but also incidental thereto. As such, it is reasonable to view that the details of illegality and liability are included in the elements of the crime of tax evasion when considering the elements of the crime of tax evasion in light of the evaluation of elements and legal interests and interests.

Therefore, even if the submission of a false entry of the list of total tax invoices or the list of total tax invoices by tax invoice in order to evade value-added tax is deemed to constitute only the crime of tax evasion, even though it appears that the period of establishment and the timing of receipt vary from external appearance falls under each of the elements of a false entry of the tax invoice

Therefore, the defendant's act of this part is not recognized as a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) by tax evasion, as stated in the judgment of the case No. 2008 Gohap51, and the crime of issuance of false tax invoices is not established. Thus, this part of the facts charged constitutes a case which does not constitute a crime and thus,

○ Scope of applicable sentences: Imprisonment with prison labor for not less than two years and not more than six months, and fine not less than 6,902,765,426 won but not more than 17,256,913,565 won

From the beginning of the oil station business in this case, the defendant, together with co-defendant 4, operated several companies on the ground of the president with no ability to pay taxes for the purpose of evading taxes by being supplied with enormous amount of non-data oil from co-defendant 2, etc. The defendant has enjoyed significant benefits from the number of evaded taxes in the hinterland 7 billion won. As a result, he has inflicted significant harm on the general public who is seriously damaged the tax justice and faithfully performing his duty to pay taxes. In addition, the crime in this case was planned and organized, as well as the amount of evaded taxes has not been collected, and thus, the National Treasury has suffered significant losses.

Therefore, it is inevitable to make a sentence equivalent to it.

○ mitigated sentencing elements: The defendant has undergone considerable pre-trial detention, and the age, character and conduct, health conditions, home environment, etc. of the defendant.

Therefore, taking into account the above factors of sentencing, the sentence of 4 years imprisonment and 10 billion won shall be imposed on the defendant. It is so decided as per Disposition.

[Attachment]

Judges Jin-so (Presiding Judge) Kim Dong-dong Park