The meaning of Article 20 of the Punishment of Tax Evaders Act “no provision on restriction on the concurrence of fines in Article 38(1)2 of the Criminal Act shall apply” / Where a fine is imposed concurrently on a crime of violation of the Punishment of Tax Evaders Act due to each offense prescribed in Article 10 of the Punishment of Tax Evaders Act, whether each offense shall be punished by a fine separately for each offense and by a fine in the sum thereof (affirmative)

Articles 10 and 20 of the Punishment of Tax Evaders Act, and Article 38(1)2 of the Criminal Act

Supreme Court Decision 94Do952 Decided May 31, 1996 (Gong1996Ha, 2076) Supreme Court Decision 2009Do3131 Decided July 23, 2009, Supreme Court Decision 2013Do1235 Decided April 11, 2013

Defendant

Defendant

Law Firm Shin & Lee, Attorney Noh Sung-sung

Seoul Eastern District Court Decision 2017No801 decided January 12, 2018

The judgment below is reversed, and the case is remanded to the Seoul Eastern District Court.

1. The grounds of appeal are examined.

The lower court upheld the first instance judgment that found the Defendant guilty of the facts charged of the instant case. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by failing

2. It shall be deemed ex officio.

Article 20 of the Punishment of Tax Evaders Act provides, “The provisions on aggravation of restriction on concurrence with fines in Article 38(1)2 of the Criminal Act shall not apply to a person who commits an offense under Article 10 of the Punishment of Tax Evaders Act.” The meaning thereof means that, when a person is punished by a fine at the same time for a number of offenses for which judgment has not become final and conclusive, Article 38(1)2 of the Criminal Act does not apply “the method of sentencing one sentence by adding up to one half of the maximum amount of fines for a serious crime” as provided in the main sentence of Article 38(1)2 of the Criminal Act. Therefore, where a fine is concurrently imposed on each offense under Article 10 of the Punishment of Tax Evaders Act, the amount of fine shall be separately determined for each offense and sentenced to a fine (see Supreme Court Decisions 94Do952, May 31, 1996; 2013Do1235, Apr. 11, 2013, etc.).

The lower court upheld the first instance judgment that sentenced a fine by applying Article 38(1)2 of the Criminal Act on the ground that the crime of violation of Article 10(3)1 of the Punishment of Tax Evaders Act was prosecuted on the grounds that each of the offenses was committed, while imposing a fine at the same time on the crime of violation of the Punishment of Tax Evaders Act due to each of the offenses, and that each of the offenses was in substantive concurrent crimes.

However, the judgment of the court below is contrary to the above legal principles, and it erred by misapprehending the legal principles under Article 20 of the Punishment of Tax Evaders Act, which affected the conclusion of the judgment.

3. Conclusion

The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)