(영문) 대법원 2019.7.24.선고 2018도16168 판결

On July 4, 2013, the Defendant, as the representative of the Nonindicted Co., Ltd., in collusion with the sale of marine fuel oil at the port of Busan on July 5, 2013, in which supply price of 20,685,400 won was supplied, and did not have been issued a tax invoice until December 24, 2015 from the total of 1,037 won from the sale of marine fuel oil until December 24, 2015.

2. The judgment of the court below

The court below reversed the judgment of the court of first instance that found the Defendant guilty on the grounds that there is no evidence to acknowledge whether the Defendant is a registered business operator who actually supplied goods or services under the Value-Added Tax Act, and sentenced the Defendant not guilty on the following grounds.

A. There is no way to issue and deliver a tax invoice under Article 32 of the Value-Added Tax Act, and there is no other procedure or method of issuing a tax invoice by an entrepreneur who is not registered in the Value-Added Tax Act.

(b) Where the supplier of goods or services is unable to issue a tax invoice due to the relationship between the unregistered business operator, there shall be no legal right that the person provided with goods or services may require the supplier to register as an entrepreneur for the issuance of the tax invoice;

C. As long as the duty to issue a tax invoice cannot be acknowledged to an entrepreneur who has not been registered as a result of legislative failure, the penal provisions cannot be applied beyond the principle of no punishment without the law, and even if the necessity of punishment is recognized in the event that an unregistered entrepreneur does not issue a tax invoice, such a gap in punishment is a matter to be resolved through legislation.

3. Judgment of the Supreme Court

(a) The former Punishment of Tax Evaders Act (Amended by Act No. 16108, Dec. 31, 2018; hereinafter the same shall apply)

A. Article 10(1)1 of the Value-Added Tax Act provides that an act of not issuing a tax invoice (Article 10(1)1 of the Value-Added Tax Act) and an act of not issuing a tax invoice in collusion with a supplier (Article 10(2)1 of the Value-Added Tax Act) shall be punished for each act of not issuing a tax invoice (Article 10(2)1 of the Value-Added Tax Act). The purport is to train transactions by compelling the issuance of a tax invoice, and to prevent the imposition and collection of tax from being impossible or remarkably difficult due to non-issuance or non-issuance of a tax invoice (see Supreme Court Decision 95Do569 delivered on July 14, 195).

Meanwhile, with respect to "person liable to issue a tax invoice", the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013) stipulates that a business operator registered as a taxpayer should issue a tax invoice in cases where he/she supplies goods or services (Article 16(1)) and the Value-Added Tax Act (wholly amended by Act No. 11873, Jul. 1, 2013; Article 32(1) of the Value-Added Tax Act), which was amended as "business operator registered as a taxpayer" and revised as "business operator" (Article 32(1) of the Value-Added Tax Act). The term "business operator" here refers to a person who supplies goods or services independently for business regardless of whether the business purpose is for profit-making, regardless of whether the business purpose is registered under the Value-Added Tax Act (Article 2 subparag. 3 of the amended Value-Adde

In light of the structure of the relevant provisions, legislative intent, and the text of the revised Value-Added Tax Act, it is reasonable to view that the "business operator who supplied goods or services after July 1, 2013, the amended Value-Added Tax Act," constitutes "person who should prepare and issue a tax invoice under Article 10 (1) 1 of the former Punishment of Tax Evaders Act, regardless of whether business registration under the Value-Added Tax Act was registered."

B. In light of the aforementioned legal principles and records, insofar as the sales volume of the Defendant traded did not make a business registration under the Value-Added Tax Act, it is reasonable to view that the Defendant constitutes “a person who is obligated to prepare and issue a tax invoice under Article 10(1)1 of the former Punishment of Tax Evaders Act,” insofar as the Defendant supplied the instant goods to the Defendant. Therefore, if the Defendant did not receive a tax invoice in collusion with the sales volume despite having been supplied with the instant goods from the sales volume, the above act constitutes Article 10(2)1 of the former Punishment of Tax Evaders Act.

C. Therefore, the court below held that the facts charged in this case constitute a crime of violating Article 10 (2) 1 of the former Punishment of Tax Evaders Act by examining whether the defendant conspired with the sales markets at the time when he was supplied with the goods of this case from sales markets and did not issue a tax invoice.

must have been held.

Nevertheless, the lower court rendered a not guilty verdict on the facts charged in this case solely for the reasons indicated in its holding. In so determining, the lower court erred by misapprehending the legal doctrine on “a person who is required to prepare and issue a tax invoice pursuant to Article 10(1)1 of the former Punishment of Tax Evaders Act” and thereby adversely affecting the conclusion of the judgment. The Prosecutor’s ground of appeal assigning

4. Conclusion

Therefore, 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.