[1] The case holding that it cannot be viewed as a "Fraud or other unlawful act" under Article 9 (1) of the Punishment of Tax Evaders Act

[2] In the event that the amount of interest to be included in the gross income was omitted in the corporate tax return due to tax adjustment, whether it can be deemed as an excessive appropriation of the amount of loss (negative)

[3] The case holding that the part of the prosecution of the first instance as to the crime prosecuted as an inclusive crime was dismissed and that part of the indictment was pronounced guilty; the part as to the dismissal of the above prosecution should be reversed and remanded as it violated the law and should be reversed and remanded as a result of the trial at the appellate court; the remaining part was not acquitted, and that the dismissal of the prosecution which is reversed and remanded as well as the part concerning the dismissal

[1] The case holding that where the defendant did not actively engage in corporate tax evasion, such as preparing false books, and the defendant merely reported corporate tax on the basis of the accounting books, etc. taken over after the representative director was appointed, it cannot be viewed as "Fraud and other unlawful acts" under Article 9 (1) of the Punishment of Tax Evaders Act

[2] The "excess appropriation of losses" under Article 12-3 (1) of the Punishment of Tax Evaders Act refers to the case where profits actually generated are not included in gross income or any losses not accrued are falsely included in gross income to increase the deficit amount by including them in gross income. However, the amount equivalent to the recognized interest to be included in gross income only through the tax adjustment is not the gross income actually generated. Thus, even if the corporate tax return was omitted, it cannot be viewed as the "excess appropriation of losses amount" even if it was omitted in the corporate tax return.

[3] The case holding that the part of the prosecution of the first instance as to the crime prosecuted as an inclusive crime was dismissed, and that the part of the dismissal of the above dismissal should be reversed and remanded because it violated the law, and that the remaining part was acquitted, and that the dismissal of the public prosecution as to the crime which was prosecuted as an inclusive crime was remanded to the first instance court without a separate verdict of innocence, and that it was remanded to the court of first instance

[1] Article 9 (1) of the Punishment of Tax Evaders Act/ [2] Article 12-3 (1) of the Punishment of Tax Evaders Act/ [3] Article 366 of the Criminal Procedure Act

[3] Supreme Court Decision 98Do631 delivered on May 8, 1998 (Gong1998Sang, 1683)

Defendant

Defendant and Prosecutor

Attorney A and one other

Cheongju District Court Decision 2002Gohap22 delivered on October 18, 2002

The guilty portion of the judgment below and the dismissal of prosecution shall be reversed, respectively.

The charge of violation of the Punishment of Tax Evaders Act by concealing books among the facts charged in the instant case is acquitted.

The case on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes and the dismissed part of the case shall be remanded to the Cheongju District Court Panel Division.

The appeal concerning the acquittal portion by the prosecutor shall be dismissed.

1. Grounds for appeal;

A. Defendant

First, with respect to B's act of discharging inventory assets in the form of disposal of B's card, etc. owned by the non-indicted company, it is difficult to regard that B's act of using B's foreign currency sales proceeds as losses, and that it was evaded corporate tax by disposing of the amount equivalent to foreign currency sales losses, the court below erred by misapprehending the legal principles as to B's act of using B's foreign currency sales cards, etc. It is not possible to view that B's act of not being able to use B's accounting fraud or other improper act without accompanying any other act, as long as B's act of failing to report under tax law or making a false report does not constitute this, it should be viewed that the above act of using B's false accounting proceeds, such as preparing a false book, and even if the defendant did not know that B's act was not able to receive B's corporate tax, the court below found the above fact that B's act of not being able to receive B's corporate tax, etc. by misunderstanding B', and it cannot be viewed that the defendant did not know that B's act was not.

Second, with respect to the violation of the Punishment of Tax Evaders Act by concealing books related to corporate tax returns, ⅰ) the defendant did not have ‘the purpose of destroying evidence for tax evasion', ⅱ) the defendant did not submit books related to corporate tax returns and cannot be viewed as ‘the concealment of evidence' under Article 12-3(2) of the Punishment of Tax Evaders Act, and ⅲ) the defendant did not have any evidence to prove that he had taken over the books related to corporate tax returns from his full-time officer, the court below convicted him of the above charges by misunderstanding the facts or misunderstanding the legal principles.

Third, the sentence of the court below is too unreasonable.

(b) Swords;

First, although there was a somewhat omitted or unclear part of the accusation of the Daejeon Director of the District Tax Office, it can be seen that there was a charge as to the violation of the Punishment of Tax Evaders Act due to the transfer of low-price stocks by considering the overall purpose of the accusation, the lower court dismissed the prosecution as to the above part on the ground that there was no legitimate accusation by the public official, such as the Commissioner of the National Tax Service under Article 6 of the Punishment

Second, although the act of treating the loan to B as having been repaid without being treated as a bonus and omitting the amount equivalent to the "recognized interest" from the earnings constitutes an excessive appropriation of the amount of losses as stipulated in Article 12-3 (3) of the Punishment of Tax Evaders Act, the court below acquitted the person who did not constitute an excessive appropriation of the amount of losses even though the above recognition under the remaining tax adjustment by misunderstanding legal principles was not an interest actually incurred, because the above recognition under the remaining tax adjustment was not an interest actually incurred, and even if it was omitted in the corporate tax return, the court below acquitted the person,

Third, the sentence of the court below is too uneasible.

2. Determination:

A. From the first argument of the Defendant, the term "Fraud or other unlawful act" under Article 9(1) of the Punishment of Tax Evaders Act refers to a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect taxes, and it does not constitute mere failure to report under tax law or making a false report without accompanying any other act (see, e.g., Supreme Court Decision 9Do535, Apr. 21, 2000).

However, according to the records, the defendant was employed by the non-indicted 2 as a director in charge of the business and sales of the non-indicted 98 and was engaged mainly in the sales activities of the product from June of the same year (14 pages). B, which was actually the representative director of the non-indicted 2, around January 1998, is equivalent to 97,291,350 won (in the indictment, 97,291,287,720 won) of the total market price of the non-indicted 97, 97, 97, 97, 97, 99, 97, 99, 97, 97, 97, 99, 97, 99, 97, 97, 97, 97, 99, 97, 97, 97, 99, 97, 99, 97, 97, 97, 99, 9, 9, 97, 9, , 9, etc.

Therefore, the court below erred by misapprehending the legal principles on "Fraud and other unlawful acts", which affected the conclusion of the judgment, and the defendant's above assertion pointing this out has merit.

Accordingly, the arguments regarding the defendant's evasion of corporate tax should not be further examined. (ii) the defendant's remaining ii), iii) iv) v) v) vi).

B. Of the second arguments of the defendant, the defendant could not be found guilty of the violation of corporate tax evasion related to the appropriation of foreign currency credit account sales due to the disposition of the franchise card, etc. of this case and the disposal of deductible expenses equivalent to that of the foreign currency loss amount, as seen earlier. Furthermore, according to the records, the non-indicted company was in de facto dormant corporation after the bankruptcy, and the closure of its business was ex officio by the Cheongju Tax Office, the competent tax office on December 31, 199 (the investigation record 127,259) and the defendant could not be viewed as being subject to the disposition of destruction of evidence against the 1.5 billion won of national tax from the Chungcheong Tax Office around January 28, 200 (the investigation record 127, the trial record 34,58), and the defendant could not be viewed as being the defendant's neglect of his duty of care in the process of destroying evidence of the 1.5 billion won of the tax evasion office (the investigation record 127, the trial record 34,58).

Therefore, the court below erred in the misapprehension of legal principles as to "the purpose of destroying evidence for tax evasion" and the defendant's above assertion pointing this out has merit.

Accordingly, the arguments on the violation of the Punishment of Tax Evaders Act by concealing the corporate tax reporting-related books are not examined further.

C. Upon examining the first argument of the prosecutor, the facts charged that the prosecutor evaded corporate tax of KRW 1,063,131,041 by omitting the difference arising from the low-price transfer of racom stocks ex officio, despite having to gross income of KRW 7,448,717,040,00 in the calculation of earnings, are crimes falling under Article 8(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 9(1)3 of the Punishment, etc. of Tax Evaders Act (which appears to have been prosecuted as the above crimes) and does not require any accusation by the Commissioner of the National Tax Service, etc., pursuant to Article 16 of the Act on the Aggravated Punishment, etc. of Specific Crimes. However, the court below erred by misapprehending the legal principles on the accusation and dismissing a public prosecution on the remaining parts of the above charges by falling under the case where a public prosecution procedure becomes null and void in violation

D. As to the second argument of the prosecutor, the interpretation of a penal provision shall be strict, and the interpretation of a penal provision in the direction unfavorable to the defendant is not permitted because it violates the principle of no punishment without the law (see, e.g., Supreme Court Decision 2001Do5410, Feb. 8, 2002). The "an excessive appropriation of the amount of losses" under Article 12-3 (1) of the Punishment of Tax Evaders Act means the case where the actual profits incurred are not included in the gross income or the amount of losses not generated are included in the gross income, thereby increasing the amount of losses by including the amount of losses in the deductible expenses. However, the amount equivalent to the interest recognized to be included in the gross income only after the tax adjustment is not the gross income, and even if the tax return was omitted, it cannot be viewed as the "an excessive appropriation of the amount of losses". Therefore, the above argument is without merit.

(e)As seen above, the guilty portion of the judgment of the court below and the dismissal of prosecution cannot be exempted from reversal, and as such, the third argument of the defendant and the prosecutor is not further examined.

(f)In conclusion, the appeal by the defendant is with merit, and the part of the judgment of the court below against the violation of the Punishment of Tax Evaders Act by concealing account books is reversed pursuant to Article 364, paragraph 6 of the Criminal Procedure Act, and the remaining part of the judgment below is remanded to the court below as follows. The part of the dismissal of the public prosecution, which is related to the crime of comprehensive violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, due to the disposition of loss in foreign currency, should be remanded to the court below. Thus, the part of the judgment below which dismissed the public prosecution is reversed ex officio pursuant to Article 362, Paragraph 2 of the Criminal Procedure Act, and remanded to the court below pursuant to Article 366 of the Criminal Procedure Act, and the aforementioned part of the judgment below which dismissed the public prosecution is remanded to the court below pursuant to Article 366

3. The summary of the facts charged of the violation of the Punishment of Tax Evaders Act by concealing books among the facts charged in the instant case is as follows: "the defendant was the representative director of the non-indicted corporation established from around December 1998 to for the purpose of telecommunications equipment and electronic device manufacturing business, etc., and around March 2, 1999, the above company and the defendant concealed them in the manner of failing to submit books related to the above company's corporate tax return for the business year from 1998 to 2000 in order to conceal the act of evading corporate tax and destroy evidence for the purpose of tax evasion." Thus, as seen in the above reasons for reversal, the above facts charged constitute a case where there is no proof of facts charged, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Judges Cho Jae-chul (Presiding Judge)