[1] Where an appeal is filed against the judgment of the court of first instance, the time limit to the effect of final and conclusive judgment (= at the time of rendering a judgment in an appeal)

[2] In a case where a list of total tax invoices entered in the list of total tax invoices by customer is submitted to the government even if there is no transaction equivalent to the supply price of the purchaser, or where a part of the actual transaction exists, the whole supply price is falsely entered, whether it falls under Article 10 (3) 3 of the former Punishment of Tax Evaders Act, which contains false representation as to the whole of the processed or false supply price (affirmative) / Whether Article 10 (2) 2 of the same Act is separately established as to the portion submitted to the government with a list of total tax invoices entered in the list of total tax invoices by customer, which contains false representation as to the whole of the supply price (affirmative)

[1] The final and conclusive force of a judgment is limited to acts conducted by the time of rendering a judgment, which is the final and conclusive point at which the possibility of factual deliberation exists, and the time limit to the final and conclusive force of the judgment in the case of an appeal against the judgment of the first instance is reasonable in light of the structure and operational status of the current criminal appeal trial.

[2] Article 10(2)2 of the former Punishment of Tax Evaders Act (amended by Act No. 16108, Dec. 31, 2018; hereinafter “former Punishment of Tax Evaders Act”) provides that “Where a person liable to submit a list of total tax invoices by customer under the Value-Added Tax Act in collusion with the Government and submits a false list of total tax invoices by customer,” and Article 10(3)3 of the same Act provides that “any person who submits a list of total tax invoices by customer under the Value-Added Tax Act submits a false list of total tax invoices by customer” shall be punished, respectively.

In full view of the contents and legislative purport of the above provisions, and the significance, function, etc. of the list of total tax invoices by customer, where there is no transaction equivalent to the supply value of purchasing companies listed in the above list of total tax invoices at all, or where a list of total tax invoices entered falsely is submitted to the government, even if some real transactions exist, with the whole of the supply value, it falls under Article 10(3)3 of the former Punishment of Tax Evaders Act, which contains false entry as to the whole of the processed or false supply value portion, and in this case, Article 10(2)2 of the former Punishment of Tax Evaders Act is separately established with respect to the portion submitted to the government with the total tax invoice by customer stating the false entry of the total supply value as a whole, while both are in a relationship of commercial concurrent crimes.

[1] Article 326 subparag. 1 of the Criminal Procedure Act / [2] Article 10(2)2 of the former Punishment of Tax Evaders Act (Amended by Act No. 16108, Dec. 31, 2018; see Article 10(2)3 of the current Act); Article 10(3)3 of the Criminal Procedure Act; Article 40 of the Criminal Act

[1] Supreme Court Decision 93Do836 decided May 25, 1993 (Gong1993Ha, 1940) / [2] Supreme Court Decision 2010Do336 decided May 13, 2010

Defendant

Defendant

Attorney Kim Tae-young

Gwangju High Court Decision 2018No520, 2019No169 decided July 16, 2019

The conviction part of the judgment of the court below against the defendant is reversed, and this part of the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Of the facts charged against the Defendant, the lower court found the Defendant guilty by applying Article 10(2)2 of the former Punishment of Tax Evaders Act (amended by Act No. 16108, Dec. 31, 2018; hereinafter “former Punishment of Tax Evaders Act”) to the act of submitting a list of total tax invoices stating the supply value as if the Defendant was supplied more goods than those actually supplied by Nonindicted Company 2 with respect to Nonindicted Company 1, on the grounds as indicated in its reasoning.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. (1) The final and conclusive force of the judgment is limited to the acts committed until that time, based on the final and conclusive judgment, at the time of rendering a final and conclusive judgment, which is the final and conclusive point at which there is a possibility of factual deliberation. In the event an appeal has been filed against the judgment of the first instance, it is reasonable to view that the time limit on the final and conclusive force of the judgment is the time of rendering a judgment in light of the current structure and operational status of the appellate court (see Supreme Court Decision 93Do836, May

(2) Article 10(2)2 of the former Punishment of Tax Evaders Act provides that “Where a person liable to submit a list of total tax invoices by customer under the Value-Added Tax Act to the Government submits a false list of total tax invoices by customer in collusion,” and Article 10(3)3 of the same Act provides that “any person who submits a false list of total tax invoices by customer, without being supplied with or being supplied with goods or services, entered the list of total tax invoices by customer in falsehood

In full view of the contents and legislative purport of the above provisions, and the significance, function, etc. of the list of total tax invoices, where there is no transaction equivalent to the supply value of purchasing companies listed in the above list of total tax invoices, or where a list of total tax invoices entered falsely in the whole supply value is submitted to the government even if some real transactions exist, it constitutes Article 10(3)3 of the former Punishment of Tax Evaders Act, which contains false entry as to the whole of the processed or false supply value (see Supreme Court Decision 2010Do336, May 13, 2010). In such a case, Article 10(2)2 of the former Punishment of Tax Evaders Act, with respect to the portion submitted to the government with the whole supply value, which contains false entry as to the whole, is separately established.

B. The record reveals the following facts.

(1) The Defendant received false tax invoices of KRW 3,392,347,669 from March 25, 2012 to May 26, 2015 without supplying or being supplied goods or services for profit, or submitted false total tax invoices and total tax invoices by buyer by buyer by buyer by buyer by buyer, etc. on September 6, 2018 at the Gwangju High Court, which is the appellate court, applied 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 former Punishment of Tax Evaders Act, etc., and was convicted of imprisonment of KRW 1 year and fine of KRW 400,00,000,000 for violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (issuance, etc. of False Tax Invoice). The Defendant’s final appeal was dismissed on November 7, 2018.

(2) The facts charged above are established between July 27, 2013 and February 25, 2015, prior to the pronouncement of the final and conclusive appellate judgment.

C. We examine the above facts in light of the legal principles as seen earlier.

The Defendant’s act of submitting a list of total tax invoices on the purchase price entered in the list of total tax invoices by customer prior to the issuance of the above judgment of the appellate court does not exist at all, or even if there are some real transactions, all of the purchase price entered in the list of total tax invoices by omitting the total supply price, constitutes Article 10(3)3 of the former Punishment of Tax Evaders Act and constitutes a crime of violation (issuance of false tax invoices, etc.) of the Act on the Aggravated Punishment, etc. of Specific Crimes as a whole. In such a case, the above facts charged subject to Article 10(2)2 of the former Punishment of Tax Evaders Act are in a mutually competitive relationship with the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (issuance of False Tax Invoice, etc.). Accordingly, the above facts charged should be judged to be acquitted because it constitutes

D. Nevertheless, the court below did not deliberate and decide on whether the act of the defendant in the above facts charged constitutes a crime of violation of Article 10(3)3 of the former Punishment of Tax Evaders Act (issuance of false tax invoices, etc.), but did not deliberate and decide on whether the above facts charged constitute a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (issuance of false tax invoices, etc.) in the above judgment of the court below, and did not err by failing to exhaust all necessary deliberations by misapprehending the legal principles on concurrent relation and res judicata between the crime of violation of Article 10(3)3 of the former Punishment of Tax Evaders Act and the crime of violation of the Punishment of Tax Evaders Act (issuance of false tax invoices, etc.) on the grounds that Article 10(2)3 of the former Punishment of Tax Evaders Act cannot be punished by applying Article 10(3)3 of the former Punishment of Tax Evaders Act in principle.

3. Since the above facts charged and the remaining crimes found guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, one of the judgment below's convictions against the defendant should be reversed.

4. Therefore, the guilty part of the judgment of the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)