(영문) 서울중앙지방법원 2019.5.17. 선고 2018고합281 판결

If the defendant does not pay the above fine, the defendant shall be confined in the old house for a period of one million won converted into one day.

except that the execution of the above imprisonment shall be suspended for two years from the date this judgment becomes final and conclusive.

The defendant shall be ordered to provide community service for 80 hours.

To order the defendant to pay the amount equivalent to the above fine.

Reasons

Criminal facts

On December 20, 2017, the Defendant was sentenced to ten months of imprisonment with prison labor at the Seoul Central District Court for an attempted crime, and the judgment became final and conclusive on July 26, 2018.

The Defendant, along with E, issued, or conspired to receive, or submit to the Government a false tax invoice or a list of total tax invoices by seller for the purpose of acquiring fees, for the purpose of acquiring fees, with the company D (hereinafter “instant company”) in Seoul building B in Gangnam-gu, Seoul, and the Defendant issued or submitted to the Government the false tax invoice or the list of total tax invoices by seller or by seller equivalent to KRW 3,830,310,189 in total of the value of supply for profit-making purposes as follows, or received or submitted to the Government.

1. Receipt of false tax invoices;

No one shall issue or be issued a tax invoice under the Value-Added Tax Act without supplying or being supplied with goods or services. Nevertheless, the Defendant, in collusion with E, shall issue or be issued a false tax invoice equivalent to the total value of supply as follows:

A. On December 9, 2013, the Defendant, in collusion with E, issued a false tax invoice of KRW 2,353,818,187 in total of supply value as shown in the separate sheet of crime (1) from September 23, 2013 to December 19, 2013, including the issuance of a false tax invoice of KRW 100,00,00 to F as if he/she had supplied goods or services, although there was no fact that goods or services were supplied.

B. On September 10, 2013, the Defendant, in collusion with E, received a false tax invoice of KRW 836,493,000 in total of supply value as shown in the separate sheet of crime (2) from July 31, 2013 to December 31, 2013, as shown in the separate sheet of crime (2), as if he received a false tax invoice of KRW 4,400,00 from G, even though he did not have received any goods or services, even though he did not receive any goods or services.

2. Submission of a false list of tax invoices;

No person may submit to the Government a false list of total tax invoices by seller under the Value-Added Tax Act without being supplied with goods or services or by entering the false list of total tax invoices by seller under the Value-Added Tax Act. Nevertheless, the Defendant, in collusion with E on February 25, 2014, entered and submitted to the Government a false list of total tax invoices by seller, as shown in attached Table (3) even though the Defendant did not have provided or received goods or services upon filing a final return of value-added tax for the second period of February 25, 2013 with respect to the instant company at Gangnam-gu, Seoul, Gangnam-gu, Seoul, on February 25, 2014, the Defendant entered and submitted to the Government a false list of total tax invoices by seller equivalent to KRW 90,909,00,000 as shown in attached Table (4), as if he was issued six copies of purchase tax invoices by seller as listed in attached Table (4).

Summary of Evidence

1. Entry of the accused in the second and fifth trial records;

1. Partial statement of witness E in the third protocol of trial;

1. The entry of witness H and I in each part of the seventh trial records;

1. Each prosecutor's protocol of interrogation of the accused (including part of the E) and E;

1. Copy of the protocol of examination of prosecution and police suspect regarding E (Evidence Nos. 9, 10);

1. The police suspect interrogation protocol of H;

1. Part of the police statement of E;

1. Copy of the written investigation of suspects of violation of E;

1. A copy of E’s answer;

1. A copy of the written accusation (Evidence No. 8) and the written accusation (Evidence No. 5) by the director of the Gangnam District Tax Office, and E’s written accusation (Evidence No. 12);

1. Copy of a report on the closure of tax offense investigation;

1. Copy of certified transcript of corporate register, each copy of value-added tax return at two years, each of which is a list of total tax invoices;

1. Records of previous judgments: A statement of inquiry results, and a copy of each judgment (Evidence List No. 21);

Application of Statutes

1. Article applicable to criminal facts;

Article 8-2 (1) 2 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 10 (3) 1 and 3 of the Punishment of Tax Evaders Act, and Article 30 of the Criminal Act (Overall Control)

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act (the crime of attempted extortion for which judgment of first head of the crime and the judgment in question become final)

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 and 6 of the Criminal Act (see, e.g., Article 55 (1) 3 and 6 of the Criminal Act)

1. Invitation of a workhouse;

Articles 70(1) and (2) and 69(2) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (limited to imprisonment, taking into account the favorable circumstances among the reasons for sentencing as follows)

1. Social service order;

Article 62-2(1) of the Criminal Act, Article 59(1) of the Act on Probation, etc.

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment for six months to fifteen years, and a fine of 383,031,019 won) to 957,577,547 won 2);

2. Sentencing criteria: The sentencing criteria shall not apply since they are concurrent crimes under the latter part of Article 37 of the Criminal Act.

3. Determination of sentence: Imprisonment with prison labor for 8 months, suspended sentence 2 years, and fine of 390 million won is the crime of receiving false tax invoices by deceiving a large number of individuals or corporate entities in the course of running a web liver business, leading the defendant to trade, causing interference with the legitimate exercise of the State's right to tax collection, and undermining the tax justice. The amount of false tax invoices received and the subsequent default on value-added tax is not small. The defendant actively participated in the crime, such as linking a large number of business entities to the web liver operators and providing offices and human resources, and the liability for the crime is not easy. However, the defendant does not have the same criminal power; the defendant needs to consider equality with the case where the first head of the first crime was decided at the same time as the case where the above crime was finalized; the defendant paid taxes directly to the above business and connected the business with the business owners by the expiration date of the crime in this case; it appears that there is little room for the defendant to regard the defendant to have been involved in the above business, as well as the defendant's character and conduct.

Judges

The judge of the presiding judge shall be net;

Judges Kim Gin-han

Judges Kim Jae-han

Note tin

1) 383,031,019 won* 3,830,310,189 won X value-added tax rate of 10% x 1/2 ( below won) x 2 times X discretionary mitigation of 383,031,019

2) 957,577,547 - 3,830,310,189 X value-added tax rate of KRW 10 per cent x 5 times X discretionary mitigation of KRW 1/2 (less than KRW 5)

Attached Form

A person shall be appointed.