1. The case holding that it does not constitute "when shares are illegally acquired on the company's account" as provided in subparagraph 2 of Article 625 of the Commercial Act;

2. Where any punishment is imposed due to a minor new Act due to a change in Acts after an offense, Acts and subordinate statutes governing the period of prescription of a public prosecution or whether to prosecute the offense

1. The act of purchasing shares with the company fund with the intention of temporarily keeping the shares with the intent of the representative director until the shareholders wish to purchase them with the company fund, upon demanding the company to purchase shares owned by them and the meeting of the board of directors to purchase the shares with the company fund, does not constitute "the time when the shares were illegally acquired on the company's account" under Article 625 subparagraph 2 of the Commercial Act.

2. If the amount of evaded tax, which was initiated by the amendment of the Act on the Aggravated Punishment, etc. of Specific Crimes, increased the standards for the amount of evaded tax due to the increase of the standards for the amount of evaded tax due to the amendment of the above Act, is not subject to the above Act, and the statutory penalty falls under the Punishment of Tax Evaders Act only through the minor Punishment of Tax Evaders Act after the crime is committed, in addition to the statutory penalty, the statute of limitations period or the request for accusation by the Commissioner of the National Tax Service against the pertinent crime should also be complied with, and if there is no accusation as prescribed by the Act

Subparagraph 2 of Article 625 of the Commercial Act, Article 1(2) of the Criminal Act, Article 6 of the Punishment of Tax Evaders Act, Article 249 and Article 327 subparag. 2 of the Criminal Procedure Act

Supreme Court Decision 87Do84 Decided December 22, 1987 (Gong1988, 373 Decided December 22, 1987)

Defendant 1 and four others

Defendant 1 shall be punished by imprisonment for two years and by imprisonment for one year, respectively.

In the detention days before rendering a judgment, sixty days for defendants 1, and seventy days for defendants 2, shall be included in each penalty.

However, the execution of the above punishment shall be suspended for three years for Defendant 1, and for two years for Defendant 2, from the date this judgment became final and conclusive.

The charge of violation of the Commercial Act against Defendant 1 in the facts charged in this case is acquitted.

Of the facts charged in this case against Defendant 1, each of the corporate tax and defense tax in 1986, the second half-year value-added tax in 1986, and the first half-year value-added tax in 1987 shall be acquitted.

The prosecution against Defendant 3, 4, and 5 and the prosecution against Defendant 2 on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) among the facts charged in the instant case are dismissed.

Defendant 1 is the representative director of Nonindicted Company 1, and Defendant 2 is the chief of the accounting division of the same company.

1. Defendant 1, without intentionally issuing a tax invoice with respect to the purchase and sale with the shareholders of the above company or with an automobile-scrapping business operator without a business registration certificate, entered the details of transactions in a separate account book for internal reporting to the company, based on this, and then, reported it at the general meeting of shareholders each year at the time of the general meeting of shareholders. On the other hand, Defendant 1, as to the transaction for which a tax office has issued a tax invoice, prepares a false book of accounts, prepares a false statement of accounts, and approves a false statement of accounts, and reports

A. By March 30, 1988, the fact that the head of Dobong-gu Seoul District Tax Office reported the amount of the corporate tax base for the year 1987 to the head of Dobong-gu Seoul District Tax Office is falsely reported to be KRW 16,683,080, notwithstanding that the net income for the year 1987 was KRW 205,538,747, and that the amount of the corporate tax for the year 1987 was KRW 16,683,00. The fact that the amount of the additional tax base for the second period of 1987 was reported to be KRW 1,017,251,520, the amount of the corporate tax for the year 1987 was falsely reported to be KRW 70,260,830, KRW 14,053,632, KRW 632, and KRW 91,569, respectively;

B. By March 29, 1989, when filing a tax base return for corporate tax in 1988 with the head of the above tax office until March 29, 1988, it shall be falsely filed that the net income of the company in 1988 was KRW 351,262,79,00,000,000,000,000 won for 17,488,228,000,000 won for 198,000 won for 198,000 won for 970,490,574 won for 198,000 won for 198,000 won for 615,69,370 won for 19,000 won for 196,000 won for 16,69,000 won for 20,000 won for 35,000 won for 195,319638

C. By March 29, 1990, when the above director of the tax office reported the tax base amount of the company's 1989 tax base amount to the above director of the tax office until March 29, 1980, he falsely reported that the net income for the year 1989 was KRW 2,286,178, notwithstanding the fact that the net income for the year 1989 was KRW 126,953,015, and that in filing a return on the tax base amount of the first half-year value-added tax for the year 1989, the fact that the sales amount for the above period was KRW 573,455,260, the fact that the second half-year value-added tax base amount was reported to be KRW 634,652,260,000, and was falsely reported to be KRW 566,736,018, value-added tax, KRW 9,374,298,21989,200

2. Defendant 1 or 2 in collusion;

A. On February 16, 1990, at the office of the representative director of the non-indicted 1 corporation, Defendant 1 is the representative director of the Dong company. Defendant 2 is the director of the Dong company's accounting division who manages the above company's official seal and company funds. Defendant 2 is the director of the Dong company's accounting division and must enter the fact of issuing bills in the company's accounting book through normal procedures, such as a resolution of the board of directors' expenditure at the time of use of the company fund. However, it is necessary to disregard the above fact of issuing bills in the company's accounting book, and without permission, to arbitrarily issue three copies of promissory notes in the name of the non-indicted 1 corporation as the non-indicted 1 corporation's branch in Seoul Trust Bank's name in order to use the payment place as the non-indicted 1's personal debt in violation of the company's business duty and without permission, and then deliver them at the time to discount in cash at that time, thereby acquiring financial profits equivalent to KRW 300,000,00 for victim 1.

B. At the end of April of the same year, at the representative director office of the above company, in order to use it for Defendant 1’s repayment of his personal debt by the above method, one sheet of the unit value per share (not omitted) per the children’s branch office of the Seoul Trust Bank’s Seoul Trust Bank’s 300,000,000 won is arbitrarily issued in the name of the above company and delivered to Nonindicted 3, the above company’s representative director of the non-indicted 2 Company at that time, thereby acquiring financial benefits equivalent to KRW 300,00,000 and causing financial loss equivalent to the same amount to the victim non-indicted 1 Company.

The facts of the ruling shall:

1. Statement corresponding thereto made by Defendant 1, 2, and 3 in the second protocol of trial;

1. Each statement corresponding thereto by the defendant 1 and 2 in this Court;

1. Each protocol of suspect examination of Defendants 1, 2, and 4 prepared by the public prosecutor, which contains statements corresponding thereto;

1. Statement on Nonindicted 4’s written statement prepared by the prosecutor, which corresponds to this;

1. The statement in Nonindicted 4’s written statement corresponding thereto

1. Since the written accusation by the director of the Dobong Tax Office can be recognized by corresponding statements, all of them can be proven.

1. Article applicable to criminal facts;

According to Article 9 (1) 3 of the Punishment of Tax Evaders Act [each tax evasion by Defendant 1 and 2, and Article 8 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 4291 of Dec. 31, 1990) prior to the amendment of the Act on the Aggravated Punishment, etc. of Tax Evaders Act (amended by Act No. 4291 of Dec. 31, 199)], Article 9 (1) 3 of the Act on the Aggravated Punishment, etc. of Tax Evaders and Article 9 (1) 3 of the Punishment of Tax Evaders Act (amended by Act No. 4291 of Dec. 31, 1990), Article 8 (1) 3 of the Act on the Aggravated Punishment, etc. of Tax Evaders and Articles 1, 1 (2), and 50 (2) of the Act on the Aggravated Punishment, etc. of Tax Evaders and Article 55 (2) of the Criminal Act) of the Act are more applicable to the Act.

2. Aggravation for concurrent crimes;

The former part of Article 37 and Article 38 (1) 2 of each Criminal Code (Aggravated Punishment provided for in Article 2-b of the Judgment with the most severe punishment and punishment)

3. Calculation of days of detention;

Article 57 of the Criminal Act

4. Suspension of execution;

Article 62(1) of the Criminal Act (The full payment of the tax evasion and previous consideration)

Among the facts charged, the above shareholders' shares were temporarily purchased from the above shareholders' 1987.3.9, and the shareholders' shares were paid to the above shareholders' 750 shares for the account of the above 197.44 shareholders' 7 shareholders' shares and the above 19.6 shareholders' shares were purchased from the above shareholders' 17.6 shareholders' 5 shareholders' shares, and the above 19.6 shareholders' shares were so purchased and distributed to the above shareholders' 17.6 shareholders' 8 shareholders' 4 shareholders' shares and the above 19.6 shareholders' 6 shareholders' shares were so purchased and the defendant's 19.6 shareholders' shares were so purchased and the defendant's 9.6 shareholders' 4 shareholders' shares were so purchased and distributed to the above shareholders' 19.6 shareholders' 6 shareholders' 1 and 5. The defendant's 1's statements and 3's shares were stated in the above 19.6 shareholders' 6 shareholders' shares statement and 4' shares.

Of the facts charged in this case against Defendant 1, the above Defendant

1. In filing a return on the tax base of corporate tax in 1986 and the tax base of the second half-year value added tax in 1986 to the head of Dobong-gu Seoul Metropolitan Tax Office by March 31, 1987, the fact is that the net income of the company in 1986 is 371,598,418,418, and the second half-year turnover in 1986 is 856,553,600, the head of the tax office having jurisdiction over the same amount is 39,575,785, while the second half-year turnover in 1986 is 39,575,785, and the sales amount is 742,69,310 won and is 742,69,039, defense tax amount is 23,615,740, 11, 38,429, and taxes are not paid.

2. 1988.3.30.까지 위 세무서장에게 위 회사의 1987년도 법인세 과세표준 및 1987년도 부가가치세 과세표준액을 신고함에 있어서 사실은 동 회사의 1987년도 당기순이익이 205,538,747원이고, 매출액이 1,717,791,800원(제1기분 700,540,280원+제2기분 1,017,251,520원)임에도 불구하고 동 세무서장에게는 당기순이익이 16,683,080원이고 매출액이 1,492,623,010원(제1기분 569,487,180원+제2기분 923,135,830원)이라고 허위로 신고하는 등 부정한 방법으로 1987년도 법인세 70,260,569원, 방위세 14,053,632원, 부가가치세 22,516,879원(제1기분 13,105,310원+제2기분 9,411,569원)등 연간 합계금 106,831,080원의 조세를 납부하지 아니한 것이다라는 점에 대하여 살피건대, 위 각 조세포탈행위는 그 포탈세액의 합계가 위 행위 당시 시행되던 개정 전의 특정범죄가중처벌등에관한법률(1989.3.25. 법률 제4090호로 개정되기 전의 것) 제8조 제1항 제1호 소정의 "포탈세액 등이 연 50,000,000원 이상인 때"에 각 해당하여 그 법정형이 무기 또는 5년 이상의 징역이 되나 동 법률은 1990.12.31. 법률 제4291호로서 개정 공포되고 동 개정된 법률 제8조 의 규정에 의하면 포탈세액 등이 연간 200,000,000원 이상이 되는 조세포탈행위만이 위 법률에 의한 가중처벌의 대상이 되게 되었고 그 법정형은 포탈세액 등이 연간 500,000,000원 이상인 때에는 무기 또는 5년 이상의 징역, 포탈세액 등이 연간 200,000,000원이상 500,000,000원 미만인 때에는 3년 이상의 유기징역이 각 되므로 위 각 조세포탈행위는 개정된 특정범죄가중처벌등에관한법률 소정의 구성요건에는 해당되지 않고 단지 조세범처벌법 제9조 제1항 제3호 에 해당되며 그 법정형이 3년 이하의 징역 또는 포탈세액 등의 3배 이하에 상당하는 벌금이 되므로 위 조세범처벌법 소정의 법정형이 개정 전의 특정범죄가중처벌등에관한법률 소정의 법정형보다 가벼운 것이 명백하여 이는 범죄 후 법률의 변경에 의하여 형이 구법보다 경한 때에 해당하므로 형법 제1조 제2항 에 의하여 위 각 조세포탈행위를 신법인 조세범처벌법위반죄로 처단하여야 할 것인데 조세포탈에 의한 조세범처벌법위반죄는 특정범죄가중처벌등에관한법률위반죄의 경우와 달리 각 세목별 조세포탈행위가 그 납기별로 각일죄가 된다 할 것인데, 법인세법 제26조 , 제31조 의 규정에 의하면 위 회사와 같이 사업년도가 매년 1.1.부터 12.31.까지인 내국법인의 경우에는 적어도 매년 3.31.까지는 직전 사업년도의 소득에 대한 법인세의 과세표준과 세액을 정부에 신고하고 그 세액을 납부하도록 되어 있고, 위 조세포탈행위 당시 시행되던 구 방위세법(1988.12.26. 법률 제4019호로 개정되기 전의 것) 제5조 에 의하면 법인세 납세의무자는 법인세액을 신고, 납부하는 때에 방위세액을 함께 신고, 납부하여야 하며, 부가가치세법 제3조 제1항 , 제19조 의 규정에 의하면 제1기 부가가치세(과세기간:매년 1.1.부터 6.30.까지)는 적어도 그 해 7.25.까지, 제2기 부가가치세(과세기간:매년 7.1.부터 12.31.까지)는 적어도 다음 해 1.25.까지 각 직전 과세기간에 대한 과세표준과 납부세액 등을 정부에 신고하고 납부세액을 납부하도록 되어 있는바, 조세범처벌법 제9조의3 제2호 의 규정에 의하면 법인세, 방위세, 부가가치세 등의 조세를 포탈한 범칙행위의 기수시기는 그 신고납부기한이 경과한 때로 되어 있으므로 피고인 1이 위 회사의 1986년도 법인세를 포탈한 행위는 적어도 1987.3.31.이 경과함으로써, 1986년 제2기 부가가치세를 포탈한 행위는 적어도 1987.1.25.이 경과함으로써, 1987년 제1기 부가가치세를 포탈한 행위는 적어도 1987.7.25.이 경과함으로써 각 기수가 되었다고 할 것이고 조세범처벌법 제17조 의 규정에 의하면 동법 제9조 에 규정한 범칙행위의 공소시효는 3년으로 되어 있는데 피고인 1이 위 회사의 1986년도 법인세, 방위세 및1986년도 제2기 부가가치세, 1987년도 제1기 부가가치세를 각 포탈한 행위에 관한 공소가 그 공소시효가 만료된 후인 1990.7.27. 제기된 사실은 기록상 명백하므로 형사소송법 제326조 제3호 에 의하여 이 부분 공소에 대하여 각 면소를 선고한다.

Of the facts charged in the instant case, Defendant 2, 3, 4, and 5, the Defendant, in collusion with Defendant 1, did not issue a tax invoice with respect to the purchase and sale of the shareholders of Nonindicted Company 1 and the unauthorized scraping businessman who did not have a trade or business registration certificate with the said company. However, on the basis of a separate account book for the internal report of the company, the Plaintiff prepared and reported the annual report at the time of the general meeting of shareholders. On the other hand, for the purpose of the tax office’s report, the Defendant prepared a separate book stating only the transaction for the transaction in which the tax invoice was issued and submitted a false statement of accounts, and submitted a false statement of accounts to the tax office

1. Defendant 2 or 3 conspireds with Defendant 1:

Until March 31, 1987, in filing a return with the head of Dobong-gu Seoul District Tax Office on the tax base of the above company's corporate tax in 1986 and the base of the second taxable amount of the value-added tax in 1986, the fact is that the net income of the above company in 1986 is 371,598,418,418, and the second taxable amount in 1986 is 856,55,785, while the second taxable amount in 1986 is 39,575,785, and the sales amount is 742,69,310,000,050,093, defense tax 23,615,740, value-added tax, value-added tax, 11,38,429, and without paying taxes to the head of the above tax office.

2. Defendant 2, 4, or 5 in collusion with Defendant 1:

A. Until March 30, 1988, when the above director of the tax office filed a return on the tax base for the corporate tax year 1987 and the base for the value-added tax for the year 1987 with the above director of the tax office, the net income for the year 1987 is 205,538,747 won, and the sales amount is 1,717,791,80 won, the director of the tax office did not pay the annual aggregate amount of 16,683,080 won, including the net income for the year 192,62,623,010 won and the sales amount is 1,492,623,000 won, and the defense tax is 14,053,632 won, the value-added tax is 22,516,879 won, and the annual aggregate amount of 106,831,080 won.

B. Until March 29, 1989, when filing a return with the head of the above tax office on the corporate tax base for the year 1988 and the base amount for the value-added tax for the year 1988, the fact that the above head of the tax office reported that the net income for the year 1988 was 351,262,793 won and the annual aggregate amount of KRW 142,084,915 won and the annual aggregate amount of KRW 17,488,228 won and the annual net income for the year 1988 was 1,586,189,94 won and the annual net income was 1,586,189,94 won and was falsely reported to the head of the above tax office.

C. According to the above statutory provisions of 190.3. 29 and the above statutory penalty of 1989 or 190.3 of the Act on the Aggravated Punishment, etc. of Tax Evaders is not applicable to the above statutory penalty of 126,953,015 of the company's net income for the year 1989 and the turnover of 1,207,830 won is 2,034,957,150 won, and the above statutory penalty of 200 or more of the Act on the Aggravated Punishment, etc. of Tax Evaders is not applicable to the above statutory penalty of 190.3,00 won for the crime committed by 20 or more of the Act on the Aggravated Punishment, etc. of Tax Evaders. According to the above statutory punishment of 30 or more of the Act on the Aggravated Punishment, etc. of Tax Evaders, it is not applicable to the subsequent statutory punishment of 190 or more of the Act on the Aggravated Punishment, etc. of Tax Evaders.

It is so decided as per Disposition for the above reasons.

Judges Kang Jin-sup (Presiding Judge)