[1] The meaning of "justifiable cause" under Article 10 of the Punishment of Tax Evaders Act and the location of the burden of proof (=public prosecutor)

[2] The case holding that the taxpayer's failure to pay taxes is included in justifiable grounds under Article 10 of the Punishment of Tax Evaders Act

[1] The justifiable grounds under Article 10 of the Punishment of Tax Evaders Act include not only the reasons why taxpayers cannot pay taxes in mind, such as natural disasters, calamities, fire, war, or other disasters, or theft, but also the reasons why taxpayers are virtually difficult to pay taxes due to the economic reasons of taxpayers such as the illness of taxpayers or their family members living together, declaration of bankruptcy of taxpayers, commencement of auction of taxpayers' properties, etc. Furthermore, in determining the existence of justifiable grounds, it shall be determined individually in accordance with the specific cases by taking into account the circumstances of delinquency, arrears and period of the punishment as well as the legislative intent of the punishment. The prosecutor bears the burden of proving the absence of justifiable grounds

[2] The case holding that the taxpayer's failure to pay taxes is included in "justifiable cause" as stipulated in Article 10 of the Punishment of Tax Evaders Act.

[1] Article 10 of the Punishment of Tax Evaders Act / [2] Article 10 of the Punishment of Tax Evaders Act

Defendant

Defendant

Attorneys Lee Chang-chul et al.

Seoul District Court Decision 99No181 delivered on June 7, 2000

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

1. We examine the grounds of appeal.

A. Summary of the facts charged in this case

Around April 20, 1995, the Defendant failed to pay acquisition tax of KRW 40,031,590 on each of the instant land at the Defendant’s house, without justifiable grounds, even though the Defendant received a tax payment notice to pay KRW 717,790 on the acquisition tax of KRW 423 square meters prior to the Seoul Special Metropolitan City, Nowon-gu, Seoul, which was purchased by the Defendant at the beginning of the same year.

B. According to the reasoning of the judgment below, the court below found, based on the adopted evidence, that the defendant purchased each land of this case from its owner on January 25, 1995 and completed registration of transfer in his name, the head of Nowon-gu imposed each acquisition tax on the defendant on April 10, 1995, and each tax notice for acquisition tax was served on the defendant around 20th of the same month, and the defendant was suspended from transaction from his bank around the 27th of the same month, and found the defendant guilty on the facts charged of this case with proof.

C. However, justifiable reasons under Article 10 of the Punishment of Tax Evaders Act include not only causes for taxpayers unable to pay taxes in mind, such as natural disasters, calamities, fire, war, or other disasters, or theft, but also causes for taxpayers having difficulty in paying taxes due to their economic circumstances, such as illness of taxpayers or their family members living together, declaration of bankruptcy of taxpayers, commencement of auction of taxpayers' properties, etc. Furthermore, in determining whether there is a justifiable reason, it shall be determined individually in accordance with specific cases by taking into account the legislative intent of the punishment as well as the reasons for delinquency, delinquent amount and period, etc., and the prosecutor bears the burden of proving that there is no justifiable reason.

According to the records, the defendant purchased each of the lands of this case around January 25, 1995 in order to use the land of this case for the apartment site of the company he operated, and the above company newly constructed 130 apartment houses on a group of lands including each of the lands of this case, including each of the lands of this case, and did not have serious financial difficulties due to the sale of apartment buildings due to the decline in housing market and the unsold in lots of commercial buildings being newly constructed in the mountain area, and the payment deadline of each of the acquisition tax of this case was due on April 30, 1995. The defendant, while holding office as the representative director of the above company, provided his own house as security at the time of the above company's loan, provided his own house as well as joint and several sureties, but even after the above company's default of joint and several sureties, it can be recognized that the above company's default of joint and several sureties obligation was due to the above company's default of tax payment due to economic reasons, and therefore, the defendant is not justified.

Nevertheless, the court below found the defendant guilty on the ground that the defendant did not pay each of the acquisition tax of this case without any justifiable reason, by misunderstanding the facts contrary to the law of physical evidence, or by misunderstanding the legal principles on justifiable grounds under Article 10 of the Punishment of Tax Evaders Act

The ground of appeal pointing this out is with merit.

2. Furthermore, we examine ex officio.

According to the records, the court of first instance decided and notified that the defendant shall be deemed to have led to the confession of the facts charged and completed the examination of evidence in accordance with the method prescribed in Article 297-2 of the Criminal Procedure Act. The court below held that the evidence which the court of first instance finished the examination of evidence as above is admissible in accordance with Article 318-3 of the same Act, and it is clear that the court of first instance found the defendant guilty of the facts charged

However, according to the first trial record, when the prosecutor examines the facts charged of this case, the defendant stated that all facts charged are different from the facts. However, when the defense counsel cross-examines the facts charged, the defendant's representative director who was the representative director, stated that the above company was insolvent on April 30, 1995, which was the due date for the payment on April 28, 1995, and denied his criminal intent.

Therefore, since the facts charged in this case are not to be tried through a simplified trial procedure, the remaining evidence, except the statement made by the defendant in the court of first instance, among the evidence adopted in the court of first instance, cannot be used as evidence for conviction of the facts charged in this case, unless the admissibility of evidence is granted through a legitimate procedure of investigation by the general procedure, not through a simple trial procedure. However, the court below found the defendant guilty of violating the Customs Act by using it as evidence without going through such procedure. Thus, the court below erred by misapprehending the legal principles on a simplified trial procedure or by misapprehending Article 307 of the Criminal Procedure Act, thereby affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)