Defendant

Both parties

Lee Jin-hun

Attorney Hah Li

Suwon District Court Decision 2007Gohap68 (Separation), 2007Gohap159 (Joint Division), 2008Gohap51 (Joint Division) decided January 26, 201

The judgment of the court below is reversed.

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

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period calculated by converting the amount of KRW 50 million into one day.

The provisional payment of the amount equivalent to the above fine shall be ordered.

1. Summary of grounds for appeal;

A. Prosecutor (De Facto misunderstanding and misunderstanding of legal principles);

Article 9(1)3 of the former Punishment of Tax Evaders Act (amended by Act No. 9919, Jan. 1, 2010; hereinafter the same) provides that the act of evading tax and the act of submitting a list of falsely purchased and sold tax invoices as prescribed by Article 11-2(4)3 of the same Act shall be deemed to have been absorption before the former, on the grounds that there is a difference between the protected legal interest and the protection of tax laws, the timing of receipt, etc., and the latter cannot be deemed to have been absorption. However, the lower court acquitted the latter on the ground that each of the facts charged in the instant case was erroneous by misapprehending the legal principles, and thereby, the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Issuance, etc. of False Tax

B. The defendant (e.g., unfair form)

The punishment of the court below (limited to four years of imprisonment and fine of ten billion won) is too unreasonable.

2. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

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

It is as shown in the attached Form.

B. The judgment of the court below

As stated in this part of the facts charged, the court below found that the act of submitting a list of total tax invoices by purchaser by false entry or false entry of the list of total tax invoices by purchaser to evade value-added tax without being supplied goods or services is one of the “Fraud and other unlawful means” as stipulated in Article 9(1) of the former Punishment of Tax Evaders Act and accompanied thereby not only the direct means of tax evasion, but also the act involved. Therefore, the illegality and liability of the act is included in the elements of the crime of tax evasion and it is reasonable to deem that the act of submitting a list of total tax invoices by purchaser and seller by false entry of the list of total tax invoices by purchase and sale in order to evade value-added tax can be seen as constituting only the crime of tax evasion, even if it appears that the act falls under both the elements of the crime of tax evasion and the elements of tax evasion. Thus, this part of the facts charged is not guilty on the ground that the act of submitting a list of total tax invoices by purchaser constitutes a crime of tax evasion.

C. The judgment of this Court

Legal concurrence refers to a case where a single act appears to be an external constituent element of several crimes, but actually constitutes only one crime. Whether a single crime or several crimes are actually established shall be determined by considering the evaluation of constituent elements and the legal interests protected by the law (see Supreme Court Decision 2000Do5318, Mar. 27, 2001).

However, tax evasion under the former Punishment of Tax Evaders Act (Article 9(1) of the same Act) punishs a person who evades a tax or obtains a tax refund or deduction by fraudulent or other unlawful act (Article 9(1) of the same Act). On the other hand, in cases of submitting a false list of the total tax invoices by purchase and sale place under the same Act to the Government by making a false entry of the list of the total tax invoices by purchase and sale place under the Value-Added Tax Act, the punishment for “an act of submitting a false entry of the list of the total tax invoices by purchase and sale place under the Value-Added Tax Act” (Article 11-2(4)3 of the same Act is different, and the elements of the punishment are different. Article 11-2(4) of the former Punishment of Tax Evaders Act of the same Act punishs the submission of the list of the total tax invoices by purchase and sale place regardless of the occurrence of tax revenue reduction, and Article 9(1) of the same Act differs from the purport and timing of such punishment. Therefore, each of the above acts is a separate crime.

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the decision is again rendered following arguments.

The summary of the facts constituting the crime recognized by this court and the evidence related thereto are as follows: the facts constituting the crime of the judgment of the court below (208 Gohap51) are as follows: the " [2007 Gohap159, 2008 Gohap51]" as "[2007 Gohap159, 2008 Gohap51]" and added the facts listed in the separate sheet to the end of the crime column; and [2007Gohap159] in the front of the " [2008 Gohap51] stated in the summary of the evidence [209 ] 8 and 14th trial records of the court below, the prosecutor's statement as Co-defendant 4 of the court below, the suspect interrogation protocol as to Co-defendant 4 of the court below, the police interrogation protocol as to Non-indicted 2, the suspect interrogation protocol as to the non-indicted 1.1. each accusation (Seoul Director of the Regional Tax Office and the Director of the Regional Tax Office of the Regional Tax Office)" are added to each corresponding column.

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

Article 8(1)1 and (2) 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. 9919, Jan. 1, 2010; hereinafter the same shall apply); Article 30 of the Criminal Act (amended by Act No. 9919, Jan. 1, 201; hereinafter the same shall apply); Article 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 9919, Jan. 1, 2010; 2007; 1; 2007; 208; hereinafter the same shall apply); and

○ Article 8(1)2 and (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, and Article 30 of the Criminal Act (Article 2 of the Decision on the Aggravated Punishment, etc. of Specific Crimes)

○ Article 8-2(1)1 and (2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes, Article 11-2(4)3 of the former Punishment of Tax Evaders Act, Article 30 of the Criminal Act (207 high-priced 159, 2008 high-priced 51), Article 30 of the Criminal Act (3-1, (2), (3), (4), (2), (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes, submission of a list of total tax invoices by each false purchaser or seller, and necessary concurrent imposition of imprisonment

○ Article 11-2(4)3 of the former Punishment of Tax Evaders Act, Article 30 of the Criminal Act (2007 high-scale 159, 2008 high-scale 51 cases), Article 30-4(4)3 of the Criminal Act, Article 30 of the Criminal Act (3-Ra of the list of total tax invoices by purchase and sale place, Article 4-4)

○ However, the upper limit of imprisonment for a limited term is in accordance with the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010).

1. Aggravation for concurrent crimes;

○ imprisonment: Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravated Punishment, etc. of Specific Crimes (tax) as provided for in the first sentence of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax)]

○○ Fines: the former part of Article 37 of the Criminal Act, the main sentence of Article 4 (1) and Article 4 (2) of the former Punishment of Tax Evaders Act [ aggregate of the fines prescribed in the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax) and the Violation of

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. Determination of fines;

Of the crimes of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (taxes), the crimes of No. 1 in the holding of the case of 2007Gohap68 shall be KRW 2.7 billion, the crimes of No. 2 in the holding of the case of 2007Gohap69, 2007Gohap159, 2008Gohap51 shall be KRW 1.5 billion, and the crimes of No. 2 in the holding of the case shall be KRW 3.4 in the order of each of the crimes of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (taxes) of Specific Crimes (taxes), KRW 1.4 billion, and KRW 1.2 billion in all of them, and KRW 1.4 billion in the fine shall be KRW 3 billion in the aggregate.

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The crime of this case is a case where the defendant was supplied with strict quantity of without material oil from Co-Defendant 2, etc. and sold it to a customer for two years, and the defendant operated several companies on the ground of so-called president with no taxpayer capacity for the purpose of evading tax from the beginning, and committed the crime in a planned and organized manner by sharing the role with co-defendant 4, such as the court below, and committed the crime. The crime of this case has seriously damaged the tax justice due to the crime of this case, and caused significant harm to the public awareness of tax payment by the general public performing the tax liability in good faith, and caused enormous loss to the National Treasury because the amount of evaded tax has not been collected.

However, it appears that the defendant did not have the same criminal record, and that the defendant did not dispute the crime for the first time in this court, and instead tried to repent of the mistake, and that the profit actually acquired by the defendant seems to be less than the amount of evaded tax, and other circumstances which form the conditions for sentencing as shown in the records and arguments of this case are equally taken into account.

Judges Ansan-jin (Presiding Judge)

1) 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) includes cases subject to aggravated punishment.

2) The case includes a case subject to aggravated punishment pursuant to Article 8-2 of the former Act on the Aggravated Punishment, etc. of Specific Crimes. In this case, the elements of “for profit-making purposes” are added as seen below 4).

Note 3) 2.7 billion +9 billion + KRW 2.1 billion + KRW 1.5 billion + + KRW 1.4 billion + + KRW 1.2 billion + + + KRW 1.4 billion + KRW 1.2 billion + KRW 1.2 billion + + KRW 1.2 billion = 14 billion +