[1] Where a crime of blanket violation of Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes is established against each violation of Article 10(3) of the Punishment of Tax Evaders Act

[2] Where a crime of violation of each subparagraph of Article 10(3) of the Punishment of Tax Evaders Act was punished in the final and conclusive judgment prior to the final and conclusive judgment, but it constitutes a blanket crime of violation of Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes in consideration of the case in which a prosecution was instituted subsequent to the final and conclusive judgment, whether the crime of violation of Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes

[1] Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “the Act”) provides for statutory punishment by combining each violation of Article 10(3) of the Punishment of Tax Evaders Act with a single type of crime on the grounds that the purpose of profit-making, the supply price entered in the tax invoice and the invoice, or the total amount of supply price or purchase price entered in the list of the total tax invoice and the list of the total tax invoice by buyer (hereinafter “supply price, etc.”) is equal to or more than a certain amount, and that the statutory penalty is separately prescribed according to the total amount of supply price, etc., by which each violation of Article 10(3) of the Punishment of Tax Evaders Act continues to be committed for a certain period under the single and continuous criminal offense, and the method of crime is also identical. If the total amount of supply price entered in the document corresponding to the act is stipulated by the law, the crime of violation of Article 10(3) of the Punishment of Tax Evaders Act can be established by combining it with the act.

[2] In principle, the scope of res judicata effect of a final and conclusive judgment is determined on the basis of the facts constituting the final and conclusive judgment itself and the facts constituting the offense of violation of the provisions of Article 10(3) of the Punishment of Tax Evaders Act in the final and conclusive judgment. Thus, even if it is determined that the case itself constitutes a single offense of violation of Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “legal provisions”), considering that the final and conclusive judgment prior to the final and conclusive judgment is a final and conclusive judgment on part of a single offense, the res judicata effect cannot be deemed to affect the facts of violation of the provisions of the Act prior to the pronouncement of the judgment.

[1] Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 10(3) of the Punishment of Tax Evaders Act, Article 37 of the Criminal Act / [2] Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 10(3) of the Punishment of Tax Evaders Act, Article 37 of the Criminal Act, Article 326 subparag.

[2] Supreme Court en banc Decision 2001Do3206 Decided September 16, 2004 (Gong2004Ha, 1684)

Defendant 1 and one other

Defendants

Law Firm Dongin Law, Attorneys Kim Jin-jin et al.

Seoul High Court Decision 2014No2869 decided January 30, 2015

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to Defendant 1’s ground of appeal

The argument that there was an error in the misapprehension of legal principles as to the grounds for disqualification of suspended sentence in the judgment of the court below is that the sentencing of the court below is too unreasonable. However, under Article 383 subparagraph 4 of the Criminal Procedure Act, only in the case where the death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years is imposed, an appeal on the grounds of unfair sentencing is allowed. As such, the above argument that the sentencing of Defendant 1 is unfair does not constitute a legitimate ground for appeal, in the case where Defendant 1 was sentenced to a minor punishment. Furthermore, even upon examining the reasoning of the judgment below, the court below did not err in the misapprehension of legal principles as to the grounds for disqualification of suspended sentence (see Supreme Court Decision 2003Do3768, Dec. 26, 2003

2. As to Defendant 2’s ground of appeal

A. Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “instant legal provision”) provides that a person who commits a crime under Article 10(3) and the former part of Article 10(4) of the Punishment of Tax Evaders Act for profit shall be punished by imprisonment for a limited term of not less than three years where the sum of the value of supply entered in the tax invoice and the invoice or of the value of supply, sale or purchase entered in the list of total tax invoices and the list of total tax invoices by buyer (hereinafter “supply amount, etc.”) is five billion won or more (Article 8-2(1) of the Punishment of Tax Evaders Act) shall be punished by imprisonment for a limited term of not less than one year if the sum of supply values,

In light of the legal provisions of this case, it is reasonable to interpret that the crime of violation of the legal provisions of this case can be established by including the act, if the sum of the supply value stated in the document constitutes the amount stipulated in the legal provisions of this case, and if the sum of the purpose of profit and the value of supply exceeds a certain amount, and the sum of the supply value, etc. is determined by adding to the violation of Article 10(3) of the Punishment of Tax Evaders Act and separate statutory punishment according to the aggregate of the supply value, etc.

B. (1) In the event that the violator of the legal provision of this case submits a false list of total tax invoices or issues a false tax invoice in multiple business operators, the court below held that the violation of the legal provision of this case among the crime of this case (hereinafter "the violation part of the legal provision of this case") in the original adjudication constitutes a comprehensive crime by each business operator's name at the time of the original adjudication, and that the violation of the legal provision of this case established by each business operator's name constitutes a substantive concurrent relation. (2) The court below found Defendant 2 guilty of the violation part of the legal provision of this case against the above defendant on the premise that the res judicata effect of the final judgment which was punished as the violation of the Punishment of Tax Evaders Act by submitting a false list of tax invoices to the above separate business operator before it reaches the crime of violation of the legal provision of this case.

C. Examining the reasoning of the judgment below in light of the aforementioned legal principles and the record, the court below did not examine whether the crime of violation of the legal provisions of this case was committed continuously for a certain period under the criminal intent of a single and continuous criminal for the purpose of profit-making, and the act can be assessed as a violation of one of the legal provisions of this case, such as the time and place relationship between the act and the act, and the identity between the method of crime, etc., and did not determine that multiple crimes are established in substantive concurrent relations by business name solely on the ground that the above defendant used multiple business names for the crime. In addition, the court below erred by misapprehending the legal principles as to comprehensive crimes

However, in principle, the scope of res judicata effect of a final and conclusive judgment is determined based on the name of the crime and the crime in the final and conclusive judgment. Thus, in a case where the crime of violation of each subparagraph of Article 10(3) of the Punishment of Tax Evaders Act is committed in the final and conclusive judgment, even if it is determined that the final and conclusive judgment constitutes a single comprehensive crime of violation of the provisions of this case, considering that the final and conclusive judgment prior to the latest final and conclusive judgment is a final and conclusive judgment as part of the above comprehensive crime, it cannot be deemed that the res judicata effect extends to the crime of violation of the provisions of this case before the pronouncement of the judgment of facts (see Supreme Court en banc Decision 2001Do3206, Sept. 16, 2004). In light of this, even if the final and conclusive judgment alleged by the above defendant was punished as a crime of violation of the Punishment of Tax Evaders Act, it can be deemed that the crime of violation of the provisions of this case and the comprehensive crime after the above final judgment constitutes a crime of violation of the provisions of this case.

Ultimately, the lower court’s conclusion that did not accept the above Defendant’s assertion is justifiable, and contrary to the allegations in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine as seen above.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)