Defendant

Defendant

Kim Dong-dong (prosecution), Lee Gyeong-Gyeong (Trial)

Attorney Jin-sik et al.

Seoul Southern District Court Decision 2017Gohap346 Decided November 30, 2017

The part of the judgment of the court below against the defendant (excluding the part not guilty in the grounds) shall be reversed.

The defendant shall be innocent.

The summary of this decision shall be published.

1. Scope of the judgment of this court;

The lower court determined that the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is the primary charge, was innocent, and convicted of violating the Punishment of Tax Evaders Act, which is the primary charge. The Defendant filed an appeal only for the conviction portion of the lower judgment, and the prosecutor did not file an appeal.

In such a case, although the part of innocence in the above reasoning is also judged in the appellate court, it shall be deemed that the party was exempted from the object of attack and defense between the parties, and therefore, the conclusion of the judgment of the court below shall be followed with respect to the part of innocence in the above reason

2. Summary of the grounds for appeal (the factual error, misunderstanding of legal principles)

Non-Indicted 1 supplied goods to the Defendant on the ground that his name is not registered as a business operator, but offered the goods to the Defendant, but introduced ○○○, △△△△△, and △△ (hereinafter “○○○, etc.”). The Defendant was supplied with goods and received a credit card sales slip from ○○, etc. According to the provisions related to the Value-Added Tax Act, ○, etc. constitutes a business operator exempt from the obligation to issue a tax invoice in place of issuing a tax invoice as a credit card sales slip.

Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine that it found the Defendant guilty of the conjunctive charge that the Defendant did not receive a tax invoice in collusion with Nonindicted Party 1.

3. Determination

A. Summary of the conjunctive charge

On July 1, 2015, the Defendant purchased a computer part equivalent to approximately KRW 19,356,80 from Nonindicted Party 1 in the office of Yongsan-gu Seoul Metropolitan Government ( Address omitted) and did not receive a tax invoice in addition to the purchase of a computer part equivalent to approximately KRW 19,356,80 from Nonindicted Party 1, and the Defendant did not receive a tax invoice until June 28, 2016, as shown in attached Table 3. of the Crimes List 3. of the lower judgment, from June 28, 2016 to KRW 6,203,434,887.

As a result, the Defendant conspired with Nonindicted Party 1 and did not issue a tax invoice amounting to KRW 6,203,434,887.

B. Judgment on the ancillary charges

1) Whether a person is subject to the issuance of a tax invoice

Article 11-2 (1) of the former Punishment of Tax Evaders Act (wholly amended by Act No. 919, Jan. 1, 2010) refers to only a person who is registered as an entrepreneur under the Value-Added Tax Act and is obligated to prepare and issue a tax invoice in detail by supplying goods or services. It does not include a business proprietor who is not obligated to prepare and issue a tax invoice under the Value-Added Tax Act because a person registered as an entrepreneur under the Value-Added Tax Act does not actually supply goods to any other person. A person registered as an entrepreneur under the Value-Added Tax Act falls under the category of a person who actually supplies goods but is not the supplier, and a person who actually supplies goods does not fall under the category of a person registered as an entrepreneur under the Value-Added Tax Act, but does not meet the requirements for the above crime (see Supreme Court Decision 9Do2168, Jul. 13, 199).

According to the above legal principle, in order to fall under the case where the defendant did not receive a tax invoice under Article 10 (2) 1 of the Punishment of Tax Evaders Act, the non-indicted 1 who supplied the goods to the defendant is registered as an entrepreneur under the Value-Added Tax Act, and is obligated to prepare and issue a tax invoice specifically by supplying goods and services.

However, according to the evidence duly adopted and examined by the court below, since Non-Indicted 1 did not make a business registration under the Value-Added Tax Act, it was not possible to issue a tax invoice in its name while supplying the computer parts, etc. to the defendant. Accordingly, the defendant is recognized to have been issued a credit card sales slip in the name of ○○○, etc. by requesting a trading company that can issue a tax invoice to the non-Indicted 1 and introducing the tax invoice from Non-Indicted 1 to ○○, etc.

Therefore, the defendant cannot be held liable for violation of the Punishment of Tax Evaders Act due to the failure to receive the tax invoice.

2) Whether a credit card sales slip can substitute a tax invoice

A) As seen earlier, the supply of goods to the Defendant is merely Nonindicted 1 and ○○○ et al. merely an enterprise in the name of the business owner for the issuance of the tax invoice. According to the legal doctrine as seen earlier, ○○ et al. did not constitute the person who actually supplied the goods, and thus does not meet the identification requirements for the crime of non-issuance of the tax invoice or non-payment under

B) However, the Defendant asserts that once a credit card sales slip was issued by ○○○, etc., the obligation to receive a tax invoice is exempted. Therefore, the Defendant’s argument is justifiable on the premise that the Defendant was supplied with goods and received a credit card sales slip.

(5) Where an entrepreneur supplies goods or services (excluding the supply of goods or services exempt from value-added tax), he/she shall issue an invoice stating the following matters (hereinafter referred to as "tax invoice") to the person who receives the supply: Provided, That where the entrepreneur is not or is not an entrepreneur, the registration number of the entrepreneur who provides the services, and the person who receives the services, shall be the resident registration number prescribed by Presidential Decree; 3. The value of supply and the date of preparation; 4. Other matters prescribed by Presidential Decree shall not be issued if the entrepreneur prescribed by Presidential Decree issues a tax invoice, etc. under Article 46 (1). Article 46 (Tax Credit Card, etc.) (1) The amount of tax credit card sales slip shall be deemed to be issued within the limit prescribed by Presidential Decree, which shall be less than 10 percent of the amount of tax credit card sales slip prescribed in the proviso to Article 2 (1) and the amount of tax credit card sales slip issued under Article 36 (1).

According to the above provisions, where a general taxable person who does not fall under bath, hair, beauty art business, etc. under Article 88(5) of the Enforcement Decree of the Value-Added Tax Act issues a credit card sales slip under the Specialized Credit Financial Business Act, it is interpreted that the obligation to issue and receive a tax invoice is exempted pursuant to Article 33(2) of the Value-Added Tax Act.

However, according to the evidence duly adopted and examined by the court below, the defendant can be found to have been issued a credit card sales slip under the Specialized Credit Financial Business Act from ○○○, etc., which is a general taxable person who does not fall under bath, hair, and beauty business, upon being supplied with computer parts, etc. through introduction by Nonindicted Party 1. Thus, ○○, etc. is exempted from the duty to issue a tax invoice and the defendant who was supplied with the goods from the obligation to receive

3) Sub-decisions

Therefore, even if the defendant was supplied with computer parts, etc. from Nonindicted 1 and did not receive a tax invoice, he cannot be deemed to have conspired with Nonindicted 1, and even if he was supplied with goods by ○○○, etc., he/she shall be exempted from the obligation to obtain a tax invoice in the name of a credit card sales slip.

On a different premise, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, which affected the conclusion of the judgment, and the Defendant’s allegation pointing this out is with merit.

4. Conclusion

Since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged in the preliminary charge against the defendant is as stated in Article 3-1 (a) of the Criminal Procedure Act, and there is no evidence to acknowledge the facts charged as stated in Article 325 of the Criminal Procedure Act, and it is so decided as per Disposition by the court below with a decision of not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act and to publicly announce the summary of the judgment pursuant to

Judges Kim Jong-sung (Presiding Judge) and Lee Jin-hee