[1] The case holding that an exporter's act of processing and exporting gold bullion of the same kind and quality as that of the previous imported gold bullion using an import declaration certificate issued by the exporter while importing gold bullion does not constitute an act of being refunded customs duties by way of individual refund

[2] Whether the act of a gold bullion business constitutes an act of tax evasion under Article 9(1) of the Punishment of Tax Evaders Act (affirmative), and the time when the act of tax evasion was received

[3] In a case where an exporter of gold bullion has received value-added tax by purchasing or exporting gold bullion previously distributed by an exporter of gold bullion, whether it constitutes “Fraud or other unlawful act” under Article 9(1) of the Punishment of Tax Evaders Act (negative)

[1] The case holding that an exporter's act of processing and exporting gold bullion of the same kind and quality as that of the previous imported gold bullion by using an import declaration certificate issued while importing gold bullion in the past does not constitute an act of being refunded customs duties by way of individual refund

[2] The act of tax evasion constitutes a tax evasion act under Article 9(1) of the Punishment of Tax Evaders Act, since it is not different from the failure to report the value-added tax in its substance when considering the whole and comprehensive tax assessment by issuing and delivering a tax invoice according to the tax invoice, submitting the tax base and tax return amount return. Such act of tax evasion constitutes a tax evasion act under Article 9(1) of the Punishment of Tax Evaders Act. Such act of tax evasion results in the lapse of 25 days after the end of the tax period, or the lapse of 25 days after the date of the tax return and payment due date of the business closure.

[3] As long as an exporter of gold bullion itself is punished as tax evasion act, even if the exporter of gold bullion purchased and exported gold bullion distributed through the intermediate gold traders, and received a refund of value-added tax pursuant to the purchase after the exporter purchased and exported the gold bullion, it does not constitute the act of refunding value-added tax by “Fraud or other unlawful act” as provided by Article 9(1) of the Punishment of Tax Evaders Act, separately from the act of tax evasion.

[1] Article 9(1) of the Punishment of Tax Evaders Act/ [2] Article 9(1) of the Punishment of Tax Evaders Act/ [3] Article 9(1) of the Punishment of Tax Evaders Act

[2] Supreme Court en banc Decision 2005Do9546 Decided February 15, 2007 (Gong2007Sang, 475)

Defendant 1 and three others

Defendant 4 and Prosecutor

Attorneys Cho Jae-chul et al.

Seoul High Court Decision 2006No63, 2007No334 decided September 13, 2007

The part of the judgment of the court below regarding Defendant 3 is reversed, and that part of the case is remanded to the Seoul High Court. The part concerning Defendant 3’s acquittal and the prosecutor’s appeal against Defendant 1 and Defendant 2 and the appeal against Defendant 4 are dismissed, respectively.

1. We examine the grounds of appeal.

A. As to the prosecutor's appeal

(1) The part on Defendant 1

In light of the records, the court below’s determination that Defendant 1 conspired with Defendant 3, etc. to commit the crime of tax evasion of Sung C&S or the crime of tax unjust refund of Lee Won Global, or to which there was no other evidence to acknowledge it, is justified in holding that Defendant 1 did not have any other evidence to acknowledge it in collusion with Defendant 3, etc.

The court below did not err in violation of the rules of evidence.

The allegation in this part of the grounds of appeal is without merit, since it is ultimately a matter of the selection of evidence or fact-finding, which is a fact-finding authority of the lower court.

(2) The part concerning the refund of customs duties by Defendants 3 and 2

In light of the contents of the relevant Acts and subordinate statutes and the practice of customs refund, etc., the court below determined that, while processing and exporting gold bullion of the same kind and quality as the previous imported gold bullion using the import declaration certificate issued while importing gold bullion, it cannot be deemed that customs duties have been refunded in an individual way by unlawful means. Thus, in order for a stock company to be refunded customs duties in an unlawful manner, it shall not be deemed that the pre-paid gold constitutes a refund by unlawful means. Therefore, in order for the pre-paid gold to be refunded by unlawful means, the pre-paid gold to be used as raw materials actually used in the manufacture of the export goods and the import declaration certificate appended to the import declaration certificate attached to the application for refund of customs duties with the same quality and characteristics as those of the raw materials are used in the production process of the export goods, it shall not be deemed that the pre-existing gold bullion gold bullion was not used separately in the production process of the export goods, and there is no evidence to acknowledge it, and even if the pre-existing gold bullion gold bullion was refunded by using the import declaration certificate.

The court below did not err in the misapprehension of legal principles as to the wrongful refund of customs duties as asserted in the grounds of appeal.

(3) The non-guilty part regarding Defendant 3’s refund of value-added tax

In light of the records, the court below's decision of not guilty of this part of the facts charged is just and acceptable.

The court below did not err by violating the rules of evidence or by misapprehending the legal principles as asserted in the grounds of appeal.

B. As to Defendant 4’s appeal

In relation to co-offenders who jointly process two or more persons in a crime, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if the combination of the doctors is made in order or impliedly through several persons, the conspiracy relationship is established, and even if there was no direct participation in the act of the conspiracy, even if there was no direct participation in the act of the conspiracy, it is criminal liability as a co-principal against the other co-principal (see Supreme Court Decisions 98Do30, Mar. 27, 1998; 200Do3483, Nov. 10, 200).

In light of the above legal principles and the records, the court below is just in finding Defendant 4 guilty of all the facts charged as stated in its judgment against Defendant 4, on the ground that, in full view of the statements made by Nonindicted 1, 2, etc., Defendant 3, and Nonindicted 2, etc. in collusion with Defendant 3, Nonindicted 2, etc., participating in the crime of tax evasion through the wide coal business, and furthermore, it can be recognized that Defendant 4 embezzled money by receiving the benefit distribution.

The court below did not err in the misapprehension of the rules of evidence or in the misapprehension of the legal principles as to the establishment of joint principal offenders.

2. It shall be deemed ex officio.

In light of the structure of the gold bullion business and the source of profit-making, etc. as indicated in its holding, the court below determined that if the gold bullion exporter, in collusion with the purchaser of gold bullion in order to create ultimate profits, purchased the gold bullion exempted from value-added tax, and received the refund of the input tax amount while exporting the gold bullion in collusion with the purchaser of gold bullion, etc., then exported the gold bullion exporter, and received the refund of the value-added tax, such as the receipt of the tax invoice, while purchasing the gold bullion, etc., and then, even if the exporter of gold bullion exported the gold bullion, and received the refund of the value-added tax collected from the transaction according to the tax invoice, such act constitutes the "Fraud or other unlawful act" as provided in Article 9 (1) of the Punishment of Tax Evaders Act, among the facts charged against Defendant 3, the court below determined that all the acts

However, as acknowledged by the court below, even if the tax determination was made normally by issuing and delivering the tax invoice according to it, submitting the tax base and tax return, and submitting the tax return accordingly, it does not differ from the failure to report the value-added tax in its substance. Thus, the tax evasion act under Article 9(1) of the Punishment of Tax Evaders Act shall be deemed to constitute the act of tax evasion. Such a crime of tax evasion constitutes the act of tax evasion as stipulated in Article 9(1) of the Punishment of Tax Evaders Act, and the act of tax evasion may occur upon the lapse of 25 days after the end of each taxable period, or upon the lapse of 25 days from the date of the business closure (see Supreme Court en banc Decision 2005Do9546, Feb. 15, 2007).

As such, insofar as an exporter is punished as tax evasion act itself, even if the exporter purchased and exported the imported gold bullion that was distributed previously through the cubic or flooring company, and then received a refund of value-added tax due to the purchase, it cannot be deemed that the exporter’s act constitutes an accomplice in the crime of tax evasion by the bombing company in collusion with the bombing company, etc., and it does not constitute an act of refunding value-added tax by the exporter’s act of refunding value-added tax by the "Fraud or other unlawful act" as provided by Article 9(1) of the Punishment of Tax Evaders Act, separately from the act of tax evasion (see Supreme Court Decision 2007Do5577, Oct. 11, 2007).

Nevertheless, as seen earlier, the lower court determined that the act of refunding value-added tax, such as Article 2-e. of the facts charged in the instant case, based on the premise of the different legal principles as seen earlier, constitutes the act of receiving tax refund by “Fraud or other unlawful act”. In so doing, the lower court erred by misapprehending the interpretation and application of Article 9(1) of the Punishment of Tax Evaders Act, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below regarding Defendant 3 is reversed (the whole conviction part is reversed, since one sentence is imposed on all concurrent crimes under the former part of Article 37 of the Criminal Act as to all concurrent crimes), and this part of the case is remanded to the court below for a new trial and determination. The non-guilty part of the case is remanded to the court below for a new trial and determination. The prosecutor's appeal against Defendant 1 and 2 and the appeal against Defendant 4 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)