Defendant 1 and one other

Prosecutor

Edives Sponsor

Attorney Park Ho-de (Korean, Counsel for the defendant)

Seoul Central District Court Decision 2006Gohap1091 Decided March 9, 2007

The prosecutor's appeal is dismissed.

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes;

A. Prosecutor's assertion

Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes cannot be applied to the act of evading local taxes, and Article 9 of the Punishment of Tax Evaders Act that requires a tax official's accusation is only applicable to the case, and Article 8 of the Local Tax Act is only applicable to the case without a tax official's accusation. However, the "tax punishment Act" as provided in Article 84 (1) of the Local Tax Act means only the Punishment of Tax Evaders Act as a single corporation, but it means the "Act on the Aggravated Punishment, etc. of Specific Crimes" including Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is the provision of the aggravated punishment, and Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes is the Act that reflects the legislative intent of the legislator to punish the crime of evading local taxes. In such a case, the court below erred by misapprehending the legal principles on the Aggravated Punishment, etc. of Specific Crimes, and thus, it does not seem that the level of punishment was enacted differently by distinguishing national taxes and local taxes.

B. Summary of the facts charged

Of the facts charged in the instant case, the summary of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) is as follows: (a) the Defendants conspired with the Nonindicted Party on August 24, 2005; and (b) as if they deposited a security for tax payment of 4.8 million cigarette in a bonded warehouse on August 24, 2005, the Defendants’ act of fraud or other unlawful act through customs clearance of 2,741,000 Won out of the said 4.8 million Won, thereby constituting a crime of evasion of KRW 2,635,471,50, and Article 8(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes.

(c) relevant legal provisions;

(1) Act on the Aggravated Punishment, etc. of Specific Crimes

Article 1 (Purpose) The purpose of this Act is to contribute to the maintenance of sound social order and the development of the national economy by prescribing aggravated punishment, etc. for specific crimes provided for in the Criminal Act, the Customs Act, the Punishment of Tax Evaders Act, the Creation and Management of Forest Resources Act, and the Narcotics Control Act.

Article 8 (Aggravated Punishment of Evasion of Taxes) (1) Any person who commits a crime provided for in Article 9 (1) of the Punishment of Tax Evaders Act shall be punished aggravatingly as follows:

(ii)The Punishment of Tax Evaders Act;

Article 2 (Definition of Taxes) The term "taxes" in this Act means national taxes: Provided, That this shall not include customs duties.

Article 9 (Punishment of Evasion, etc. of Taxes) (1) Any person who evades a tax, obtains a refund or deduction of tax by deceit or other unlawful means shall be punished in accordance with the following subparagraphs:

(c) Local Tax Act;

Article 82 (Mutatis Mutandis Application of Framework Act on National Taxes, etc.) Except as otherwise provided for in this Act and other Acts and subordinate statutes, the Framework Act on National Taxes and the National Tax Collection Act shall apply mutatis mutandis to the imposition

Article 83 (Application Mutatis Mutandis of the Management of the National Funds Act)

Article 84 (Application Mutatis Mutandis of the Punishment of Tax Evaders Act, etc. to Offense concerning Local Taxes)

(1) The Punishment of Tax Evaders Act shall apply mutatis mutandis to any local tax offense.

(2) In punishing violations under paragraph (1), the Decree of the Procedure for the Punishment of Tax Evaders shall apply mutatis mutandis.

D. Determination

(1) The interpretation of a penal provision shall be strict, and the interpretation of a penal provision in the direction unfavorable to the defendant shall not be permitted as it is against the principle of no punishment without the law (see Supreme Court Decision 2006Do5147, Oct. 26, 2006, etc.).

(2) According to the above, Article 84(1) of the Local Tax Act provides that "the Punishment of Tax Evaders Act" shall apply mutatis mutandis to local tax violations under the title of "(Application Mutatis Mutandis of the Punishment of Tax Evaders Act, etc. to local tax-related violations)", and it is interpreted that the Punishment of Tax Evaders Act and subordinate statutes attached thereto shall apply mutatis mutandis to a person who evades local tax in accordance with the language and text thereof.

Meanwhile, as seen earlier, the Act on the Aggravated Punishment, etc. of Specific Crimes provides for aggravated punishment for specific crimes, other than the Punishment of Tax Evaders Act, among the crimes scattered in various laws, such as the Criminal Act, the Customs Act, the Creation and Management of Forest Resources Act, and the Narcotics Control Act. As such, the principle of no crime without the law shall be applied more strictly in determining the scope of application or application mutatis mutandis under the Act on the Aggravated Punishment, etc. of Specific Crimes. As such, other crimes stipulated in the Criminal Act, etc. are also included in the subject of aggravated punishment, and from the perspective of the general public, it is difficult to expect immediately the Act on the Aggravated Punishment, etc. of Specific Crimes in the language of the Punishment of Tax Evaders Act,

In addition, there is no inevitable reason to treat a person who evades national taxes and a person who evades local taxes entirely at the same time, and it is also possible to enact different legislation considering the nature and importance of each national and local tax.

(3) In light of the above, interpreting the provisions of the Local Tax Act as "the Punishment of Tax Evaders Act" in the Local Tax Act, and interpreting the provisions of the Punishment of Tax Evaders Act as "the Act on the Aggravated Punishment, etc. of Specific Crimes" as "the Act on the Aggravated Punishment, etc. of Specific Crimes" as the grounds for appeal by the prosecutor, should be interpreted as including the "the Act on the Aggravated Punishment, etc. of Specific Crimes" in the "the Punishment of Tax Evaders Act" as the grounds for appeal by the prosecutor. It does not violate the principle of no punishment without law because it excessively expandss or analogicals the meaning of the express provisions concerning criminal law to the disadvantage of the defendant (see, e.g., Seoul High Court Decisions 2005No1259, Sept. 28, 2005; 2005No728, Jun. 1, 2005; 2004No

(4) Thus, even if the defendants evaded local taxes of one billion won or more per annum as stated in the facts charged in this case, Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes cannot be applied mutatis mutandis to such taxes. Thus, the judgment below that made the same conclusion is just, and the prosecutor's assertion on this point is without merit.

2. The point of unfair sentencing

A. Prosecutor's assertion

The sentence of the lower court against Defendant 1 (two years of suspended sentence in October) is too unfluent and unfair.

B. Determination

Of the facts charged of this case, the part convicting the above defendant among the facts charged of this case cannot be deemed to have forged and used the resident registration certificate, and the nature of the crime is less severe, but considering the following facts: (a) the above defendant committed the crime according to the proposal of the non-indicted who is an accomplice; (b) there are no criminal records other than the punishment sentenced twice prior to ten years; and (c) he reflects against the prison life near six months, the court below’s punishment cannot be deemed to be too unreasonable. Thus, the prosecutor’s assertion on this point is without merit.

3. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act since the prosecutor's appeal is without merit. It is so decided as per Disposition.

Judge Cho Young-young (Presiding Judge)