The meaning of "years" under Article 8 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (=one year from January 1 to December 31) and the meaning of "annual evaded tax, etc." [the sum of all tax amounts evaded or unlawfully refunded for each year (from January 1 to December 31) regardless of the taxable period, etc. of each tax item];

[Majority Opinion] The number of crime of tax evasion is based on the recovery of violation requirements. For each taxation year, corporate tax evasion is established for each business year, corporate tax for each business year, and for every six months of value-added tax. However, Article 8(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides for a single type of crime and statutory punishment for it by combining the act under Article 9(1) of the Punishment of Tax Evaders Act with the reason that annual amount of tax evasion is more than a certain amount of tax evasion, regardless of the type of tax, it is established only one crime in violation of Article 8(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and the crime of tax evasion is established for one year and one crime in violation of the same paragraph shall be established for each of the three years, and the term "years of tax evasion" shall be added to the amount of tax evasion by one year and one year in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, regardless of what kind of tax evasion and the term of tax evasion should be established for one year.

[Dissenting Opinion] Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes is a provision to punish a person who commits a crime provided for in Article 9 (1) of the Punishment of Tax Evaders Act in cases where the amount of evaded tax is equal to or more than a certain annual amount, and there is its legislative purpose in order to maintain sound social order and contribute to the development of the national economy by strictly punishing a person who evades or obtains a refund or deduction of a large amount of tax through an unlawful act in a short period of time. In addition, it is interpreted that "annual period" provided for in Article 8 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes means "one-year period from January 1 to December 31 of each year." In addition, in light of the fact that Article 83 of the Criminal Act provides that the period of time determined by year or month shall be calculated according to calendars, it means a specific period of one year from a certain date when the crime, such as the first evasion of charges, is established.

Article 8(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 9(1)

Supreme Court Decision 82Do715 delivered on May 25, 1982 (Gong1982, 624), Supreme Court Decision 82Do938 delivered on June 22, 1982 (Gong1982, 726), Supreme Court Decision 83Do362 delivered on April 12, 1983 (Gong1983, 861), Supreme Court Decision 90Do308 delivered on July 10, 1990 (Gong190, 1745) (amended) (amended)

Defendant 1 and one other

Defendants

Attorney Lee Jong-soo et al.

Seoul High Court Decision 99No868 delivered on August 17, 1999

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the mistake of facts about the evaded tax amount

In light of the records, the decision of the court below that recognized the evasion of tax amount is just, and there is no error of law by misunderstanding legal principles or misunderstanding of facts against the rules of evidence, as otherwise alleged in the grounds of appeal. The ground of appeal on this point is without merit

2. As to the misapprehension of legal principles as to co-principals

In light of the records, the measures of the court below that recognized Defendant 2's conspiracy of tax evasion by the defendants as a co-principal is just, and there is no violation of law by misunderstanding legal principles as to co-principal as otherwise alleged in the grounds of appeal. The allegation in the grounds of appeal on this point is without merit.

3. As to the misapprehension of legal principles as to Article 8(1) of the Aggravated Punishment Act

Article 8 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as "the Act on the Aggravated Punishment, etc.") provides that "any person who commits a crime provided for in Article 9 (1) of the Punishment of Tax Evaders Act shall be punished by aggravating as follows: "If the amount of tax evaded, refunded, or not collected or not paid (hereinafter referred to as "amount of tax evaded, etc.") is not less than five hundred million won per year, it shall be punished by imprisonment for life or for not less than five years; and if the amount of tax evaded, etc. is not less than two hundred million won per year and less than five hundred million won, it shall be punished by imprisonment for a limited term of not less than three years; and Article 9 (1) of the Punishment of Tax Evaders Act provides that "any person who evades a tax or obtains a refund or deduction of taxes by fraud or other unlawful means shall be punished by a punishment: Provided, That an attempted crime of liquor tax evasion shall be punished by a penalty; Article 9-3 of the same Act provides that the period of tax evasion referred to in Article 9 shall be reported and paid:

The number of crimes of tax evasion is, for example, based on the recovery of violation requirements, the crime of tax evasion is established for each taxable year, corporate tax for each business year, and for each six-month value-added tax for each taxable period. However, this paragraph is combined with an act of tax evasion under Article 9 (1) of the Punishment of Tax Evaders Act and provides for statutory punishment for the same crime. Therefore, if the sum of the amount of tax evaded for one year regardless of the type of tax exceeds the amount prescribed in this paragraph, it shall be established only one crime of this paragraph, and the crime of tax evasion shall be one crime of this paragraph shall be deemed to be committed for 1 year and one crime of tax evasion shall be deemed to be committed for 2 years, and in this paragraph, the term "year" means 15 years from the date of tax evasion to the date of tax evasion under the Punishment of Tax Evaders Act, regardless of the objective scope of the number of such crimes and the effect of res judicata, it shall be deemed that the term of tax evasion should be added to 13 months from the date of each report and its term shall not be known.

An opinion on the interpretation and application of the instant provision as expressed in this Court (see, e.g., Supreme Court Decisions 82Do938, Jun. 22, 1982; 83Do362, Apr. 12, 1983; 90Do308, Jul. 10, 199) is to be modified to the extent that it conflicts with this Opinion.

Nevertheless, the court below, contrary to its opinion, determined the application of the provisions of this paragraph by adding each tax amount to the grounds that each of the taxable periods belongs to the same year without examining whether the tax evasion period belongs to the same year with respect to the act of evading KRW 85,655,318 and KRW 150,34,150 for the first term of 197 and the second term of 1997 pro rata income tax for the second term of 197 and the act of evading KRW 264,068,47 for the second term of 197 and corporate tax for the second term of 124,915,815,81 for the second term of 197. The court below did not err in the misapprehension of legal principles as to this paragraph, and it is clear that such illegality affected the judgment. Thus, the ground of appeal pointing this out has merit.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the determination of the meaning of "years" in paragraph (3) of this Article, except for a dissenting opinion by Justice Cho Chang-ju, Justice Lee Jae-soo, Justice Cho Jae-sik, and Justice Cho Jae-dam, this decision is delivered with the assent of all participating Justices on the bench.

5. Dissenting Opinion by Justice Cho Chang-chul, Justice Lee Jae-soo, Justice Seo-sung, Justice Cho Jae-sik, and Justice Lee Jae-dam is as follows.

It is reasonable for the majority opinion to regard "annual evaded tax amount, etc." as the basis of the establishment time of offenses such as tax evasion, etc. regardless of the taxable periods of each tax item, etc., regardless of the meaning of "annual" as the total amount of tax evaded, refunded, or deducted. However, I cannot agree to interpret the meaning of "annual" as from January 1 to December 31 of each year.

Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes is a provision to punish a person who commits a crime provided for in Article 9 (1) of the Punishment of Tax Evaders Act by aggravated punishment when the amount of evaded tax, etc. is equal to or more than a certain annual amount. The legislative purpose of Article 8 of the Act is to maintain sound social order and contribute to the development of the national economy by strictly punishing the person who evaded, refunded, or deducted a large amount of tax by unlawful act in a short period. In addition, the term "annual period" provided for in Article 8 (1) of the Act on the Aggravated Punishment, etc. is interpreted as "one-year period from January 1 to December 31 of each year," and there is no ground to regard it as "one-year period from January 3 to December 31 of each year." In addition, in light of the fact that Article 83 of the Criminal Act provides that the period determined by year or month shall be calculated according to calendars, it means a certain period of one-year period from each year when the crime was established, such as the first offense prosecuted.

If a person who has evaded, refunded, or deducted a tax exceeding the amount provided for in Article 8 (1) of the Aggravated Punishment Act by an unlawful act within a period of one year from the specified point of time in any year is punished as a separate crime on the grounds that the year during which the act committed such as the evasion is different is not punished as one crime of violating the Aggravated Punishment Act, it does not comply with the purpose of legislation and with the legal sentiment.

In light of the previous precedents of the Supreme Court, regardless of the period of taxation, etc., the "annual amount of tax evaded, etc." should be determined on the basis of the timing of establishment of an offense such as tax evasion, etc., the period of one year from the time of establishment of an offense, such as the first act of tax evasion (Supreme Court Decisions 82Do938 delivered on June 22, 1982; 83Do362 delivered on April 12, 1983; 90Do308 delivered on July 10, 199).

Therefore, the opinion of the Supreme Court Decision 82Do715 Decided May 25, 1982, as stated in the majority opinion, should be modified to the extent that it conflicts with the dissenting opinion.

The final judgment of the Chief Justice of the Supreme Court (Presiding Justice) is delivered with the Order of Use of the Jin-hee Kim Jong-Jon Kim Chang-Jon's Shoon Shoon Shoon, which is delivered with the Ordinance of the Ministry of Justice.