Registration of termination of liquidation of a legal entity and whether legal capacity exists;

As long as a public prosecution has already been instituted before the completion of liquidation and the case has not yet been completed, the registration of the completion of liquidation has been completed during the continuation of the case, so it cannot be deemed the completion of all of the liquidation affairs of Defendant Foundation, and the ability of the legal entity shall continue

Article 27 of the Criminal Procedure Act

【Court Decision 75Do2551 decided Apr. 27, 1976 (Article 27(1) of the Criminal Procedure Act, Article 27(1)1412 pages, Article 11226 house 24(1)110, Article 537 of the Act)

Defendant 1 and 1 other than the Incorporated Foundation

Defendants

Daegu District Court (80Gohap477)

Of the judgment below, the part on the defendant 1 incorporated foundation shall be reversed.

Defendant 1 Incorporated Foundation shall be punished by a fine of KRW 400,000.

Defendant 2’s appeal is dismissed.

(1) First, we examine the part of Defendant 1’s Incorporated Foundation (hereinafter in this paragraph, referred to as Defendant Foundation).

The summary of the grounds of appeal by the defense counsel of the defendant foundation 1 is as follows: first, even if the liquidation termination registration was completed on January 22, 1981, the defendant foundation found the defendant foundation guilty; second, the court below erred by misapprehending the law on the criminal liability of the corporation; second, the motive for the crime of this case was to raise funds for the establishment of the medical college; second, the amount of evaded tax was paid after the crime was paid to the defendant foundation; and other non-profit corporations for public activities; second, the court below's decision on the grounds of appeal by the defendant foundation 2 is unreasonable; first, the court below's decision on the grounds of appeal by the defendant foundation 2 is erroneous in the misapprehension of facts or violation of the law because the court below found the defendant foundation guilty without any evidence to acknowledge the facts charged of this case; second, the court below's decision on the defendant foundation's punishment against the defendant foundation is too unfair (it is reasonable that the court below's decision that the defendant foundation's representative liquidator was delivered to the defendant foundation 2, the defendant foundation's representative liquidator 184.7.

First, according to the records of this case, the first point of the grounds for appeal by the defense counsel of the defendant foundation, the defendant foundation is dissolved with the permission of the competent authority on October 18, 1980, and the registration of the completion of liquidation was terminated on January 22, 1981. However, the facts charged of this case is about the corporate tax of the business year of the defendant foundation (from April 1, 1978 to March 31, 1978) and the corporate tax of defense cells in the business year of the defendant foundation (from March 1, 1978 to March 31, 1978) and it was in the existence of the defendant foundation, and the registration of the completion of liquidation was completed on September 15, 1980 before the completion of liquidation, so long as the case was already prosecuted and the registration of the completion of liquidation was not yet concluded, it cannot be deemed that the liquidation of the defendant foundation was completed in its entirety, and the ability of the party concerned under the Criminal Procedure Act continues to exist (see Supreme Court Decision 20015Do1515, Apr. 275, 1975).

However, according to Article 276 of the Criminal Procedure Act, in the case of a juristic person, such as the defendant foundation, it shall not be revised without the attendance of the representative or representative on the trial date, and the person appointed as the representative of the above juristic person at the same time cannot hold concurrent office. According to the records of this case, the court below completed the recognition examination in the presence of the representative liquidator of the defendant foundation at the first trial date, and then, despite the absence of any legal ground for amendment without the presence of the representative of the defendant foundation or representative, it can be known that the representative liquidator of the defendant foundation, in spite of the absence of any legal ground for amendment without the presence of the representative of the defendant foundation or representative, the representative liquidator of the defendant foundation completed the fact-finding and examination of evidence only with the involvement of the defendant foundation 1

Therefore, without considering the need to determine the remaining grounds for appeal by the defense counsel of the defendant foundation, the part of the judgment below regarding the defendant foundation is reversed pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and the party members are again decided as follows.

Defendant Foundation is a juristic person that maintains and operates the German hospital (name omitted) for the purpose of spreading taxes for medical services established on July 25, 1967; Defendant 2 is the president of the Daegu-gu (name omitted); the director of the accounting division of the said hospital; Nonindicted 6; the director of the accounting division of the said hospital; and Nonindicted 7; the director of the accounting division of the said hospital; the director of the accounting division; and the director of the accounting division; and the director of the non-indicted 9; the amount of new construction funds of the universities affiliated with the said hospital; the amount of KRW 4,517,427,126; the total amount of KRW 86,40; the amount of KRW 96,40; the amount of KRW 79,50; the amount of KRW 96,40; the amount of KRW 97,50; and the amount of KRW 96,50; the amount of KRW 97,97,50; and the amount of KRW 97,94,506,7500.

The facts stated in the ruling:

1. The part of the statement corresponding thereto in the original judgment and the trial court held by Defendant 2

1. Among the trial records of the court below, each statement corresponding to the non-indicted 6, 7, and 8 of the witness of the court below

1. Each statement made by the prosecutor on Nonindicted 6, 7, and 10, which correspond to the prosecutor's statement

1. Each statement prepared by Nonindicted 8 and 11 that correspond to the statements

1. Investigation reports on alleged violation of the Punishment of Tax Evaders Act prepared by the Daegu Regional Tax Office, Nonindicted 12, 13, and 14, and statements corresponding thereto in the confirmation letter prepared by Defendant 2;

1. The Ministry of Administration and Home Affairs can be recognized in full view of the report of tax base for the corporate tax of Nonindicted 4, the copy of the voluntary payment statement, the copy of the balance sheet statement, and each corresponding statement in the statement, and so there is proof.

The so-called “Defendant 2, etc.,” which is an employee of the Foundation, falls under Article 8(2) and (1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 9(1)3 of the Punishment of Tax Evaders Act, and Article 3 of the same Act, and is subject to the fine of the Foundation. The Defendant Foundation, as an incorporated foundation conducting medical business, has a reason to take into account the circumstances, such as the fact that the amount of evaded tax has been paid after the instant crime, etc., to the extent of the amount of discretionary mitigation pursuant to Articles 53 and 55(1)6 of the Criminal Act, shall be sentenced to a fine of KRW 4 million.

(2) We examine the following part on Defendant 2 (hereinafter referred to as Defendant in this paragraph).

The summary of the grounds for appeal by the defendant's defense counsel is as follows: (i) the defendant was given an order to exempt tax from tax under tax law to the chief of the accounting division of the (name omitted) German hospital or the chief of the accounting division, Nonindicted 6 or Nonindicted 7; and (ii) the head of the accounting division, who ordered the defendant to refrain from tax due to fraudulent or other unlawful acts, such as the entry in the facts charged in this case, although the court below did not order the defendant to be punished, the court below did not order the defendant to evade tax due to the intention of the person who caused the crime of tax evasion by the statement at the court below or the prosecutor's office, which affected the conclusion of the judgment. (iii) The court below erred by misapprehending the legal principles or the rules of evidence, which affected the conclusion of the judgment, and (iv) the court below ordered the defendant to suspend the execution for three years, which was sentenced to a fine of KRW 40 million,000,000, which was merely an excessive motive for the defendant to establish the previous local community and received unfair practices in light of this case.

However, in comparison with the records of various evidences duly admitted by the court below, it cannot be found that the defendant's criminal intent of tax evasion of this case was recognized by the court below, and there was no other error as pointed out in the arguments in the process of finding the criminal facts of this case (the statement prepared by non-indicted 16 in the summary of the original judgment is a clerical error in the statement prepared by non-indicted 17, and the investigation report of the suspected violation of the Punishment of Tax Evaders Act prepared by non-indicted 12, 13, and 14 in the tax assistant, and the (title omitted), prepared by non-indicted 15 in the executive assistant non-indicted 15, the president of the Doi Hospital Maintenance Foundation, the president, non-indicted 4 in the form of "non-indicted 4 in the form of tax assistant, the copy of the balance sheet, and the copy of the income statement are written in mistake) and the defendant contributed to the local community without any previous criminal history. However, the court below's decision of tax evasion of this case can be accepted in light of the reason and the fact that the defendant's tax evasion of this case.

Therefore, the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

(3) It is so decided as per Disposition by reason of above.

Judges Jeon Soo-tae (Presiding Judge)