In a case where the Defendant received input tax from the Nonindicted Party by submitting a false tax invoice issued by the Nonindicted Party to the tax office while constructing a new building on his own by borrowing a construction license from the Nonindicted Party, the details of the perception that the Defendant was aware that the Defendant had the intent to commit the crime of tax evasion,

In a case where the Defendant submitted a false tax invoice issued from the Nonindicted Party to the tax office to newly build a building owned by him and received the input tax amount from the Nonindicted Party, and the Defendant would have the intent to commit the crime of tax evasion, etc. as prescribed in Article 9 of the Punishment of Tax Evaders Act, the Defendant must be aware that, in addition to the recognition that the Defendant would receive the refund of the input tax amount under the false tax invoice, the Nonindicted Party declared and paid the tax base and tax amount of the value-added tax excluding the output tax under the false tax invoice, or declared and paid the whole output tax amount under the false tax invoice, and thereby, would result in the evasion of the Defendant’s liability to pay the input tax amount under the false tax invoice, thereby undermining

Article 9 of the Punishment of Tax Evaders Act, Articles 17 and 19 of the Value-Added Tax Act.

Supreme Court Decision 90Do1955 delivered on October 16, 1990 (Gong1990, 2355) Supreme Court Decision 98Do667 delivered on April 9, 199 (Gong199Sang, 927)

Defendant

Defendant

Attorney Yellow-gu et al.

Daejeon High Court Decision 98No399 delivered on May 14, 1999

The guilty portion of the judgment of the court below is reversed, and that part of the case is remanded to the Daejeon High Court.

Defendant and state appointed defense counsel’s grounds of appeal are examined.

1. Examining the evidence of the first instance judgment maintained by the court below in light of the records, the judgment of the court below which found the defendant guilty of the crime of violation of the Construction Business Act, the value-added tax, and the violation of the Punishment of Tax Evaders Act due to the evasion of corporate tax against the defendant is acceptable, and there is no violation of the rules of evidence or

2. Violation of the Punishment of Tax Evaders Act by improper refund of value-added tax

A. The summary of this part of the facts charged is as follows: "The defendant, in running the commercial building lease business located in Chungcheongnam-dong on March 14, 1996 after filing a business registration and filing a monthly refund report for the year 196, the defendant, despite having leased general construction business license from the non-indicted Co., Ltd. (hereinafter referred to as "non-indicted Co., Ltd.") and constructed the building directly, a false contract is prepared as if the non-indicted Co., Ltd. had constructed the building, and the non-indicted Co., Ltd. received a tax invoice of KRW 318,00,000 (supply price) from the non-indicted Co., Ltd., Ltd. on or around May 25, 1996, submitted a false contract statement as to the above amount of KRW 318,000,000,000 from the value-added tax and the monthly refund report of KRW 318,00,000,000,000."

B. Examining the evidence of the first instance judgment maintained by the court below in light of the records, the judgment of the court below which recognized that the defendant directly constructed the above building by borrowing a general construction business license from the non-indicted company is acceptable, and there is no violation of the rules of evidence as alleged.

C. According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the non-indicted company, who was not liable to pay value-added tax, received money equivalent to value-added tax from the defendant and paid value-added tax to the non-indicted company in relation to the above construction, and the defendant was not liable to receive value-added tax by returning the above money from the non-indicted company, and therefore the defendant did not have any intention to evade tax. Article 9 of the Punishment of Tax Evaders Act provides that "the person who evaded taxes or received tax refund or deduction through fraudulent or other unlawful act" shall be punished. In the case of "egradation of taxes by fraudulent or other unlawful act", if the "tax evasion" is a requirement for the intention to evade tax, but the tax refund is a requirement for the "tax refund". Thus, since the defendant received a false tax invoice from the non-indicted company and submitted it to the tax office for the construction of the above building under his own possession and submitted it to the non-indicted company, the defendant did not deny the above input tax refund through fraudulent or other unlawful act.

However, in the case of this case, in order for the defendant to have the intent to commit the crime of tax evasion, etc. under Article 9 of the Punishment of Tax Evaders Act, it must be recognized that the non-indicted company reported and paid the tax base and tax amount of value-added tax excluding the amount of the output tax on the above false tax invoice, or evaded the liability for the payment of value-added tax on the above false tax invoice because it reported and paid the whole amount of the output tax on the above tax invoice, etc. excluding the amount of the output tax on the above tax invoice, and thus, the defendant would have caused a decrease in the national tax revenue (see Supreme Court Decision 90Do1955 delivered on October 16, 190). Thus, the court below erred in the misapprehension of legal principles as to the crime of tax evasion, etc. by failing to examine whether the non-indicted company evaded the liability for the payment of value-added tax on the above tax invoice by the above false method, thereby obtaining the deduction of the input tax amount under the above tax invoice would bring about a decrease in national tax revenue.

According to the statement of the representative director of the non-indicted corporation at the prosecutor's office (590 pages) and the statement of the non-indicted corporation's final return of the value-added tax for the first year of 1996 attached to the reply of the inquiry of the head of the Cheongju Tax Office (the trial record 1620 pages), the non-indicted corporation seems to have paid 31,80,000 won as value-added tax on the above tax invoice)

3. However, the judgment of the court below that found the defendant guilty of the crime of violating the Punishment of Tax Evaders Act and the remaining crimes committed in concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, without determining the remaining grounds of appeal, the part of the judgment below's conviction is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)