[Defendant] Defendant
[Appellant] Defendant
[Defense Counsel] Attorney Jin Seung-eon and one other
[Judgment Below] Seoul High Court Decision 2000No1642, decided October 10, 2000
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
1. The court below found the defendant guilty on all of the following facts charged in this case, namely that the defendant, as the substantial operator of Non-Party Company (주식회사), (i) received tuition fees and other payments at the academy operated by the said Company from August 1, 1996 to December 31, 1996, and, when reporting the tax base and amount of corporate tax on the said Company's income for the 1996 business year to the competent tax office director in March 1997, omitted revenue of KRW 3,850,930,559 by the wrongful method of failing to record such fact in the tax-related books, thereby evading corporate tax of KRW 1,070,503,770 on such revenue upon the lapse of the payment deadline on March 31, 1997; (ii) received tuition fees and other payments at the said academy from January 1, 1997 to December 31, 1997, and, when reporting the tax base and amount of corporate tax on the said Company's income for the 1997 business year to the competent tax office director in March 1998, omitted revenue of KRW 10,735,468,116 by the same wrongful method, thereby evading corporate tax of KRW 2,928,526,627 on such revenue upon the lapse of the payment deadline on March 31, 1998; (iii) received photo album production fees subject to value-added tax at the said academy from January 1, 1997 to June 30, 1997, and, when filing the final value-added tax return for the first period of 1997 for the said Company with the competent tax office director in July 1997, omitted the supply value of the above sales amount of KRW 979,248,853 by the same wrongful method, thereby evading value-added tax of KRW 97,924,885 on such sales amount upon the lapse of the payment deadline on July 25, 1997; and (iv) received photo album production fees subject to value-added tax at the said academy from July 1, 1997 to December 31, 1997, and, when filing the final value-added tax return for the second period of 1997 for the said Company with the competent tax office director in January 1998, omitted the supply value of the above sales amount of KRW 1,785,195,599 by the same wrongful method, thereby evading value-added tax of KRW 178,519,559 on such sales amount upon the lapse of the payment deadline on January 25, 1998. This determination by the court below is correct, and there is no error therein such as violation of the rules of evidence, insufficient deliberation, failure to state reasons, or omission of judgment as argued in the grounds of appeal. Accordingly, all of the grounds of appeal on this point are not accepted.
2. A. With respect to the above criminal facts, the court below held that the act of evading corporate tax on income for the 1996 business year constitutes one crime in violation of Article 8(1)(1) of the Act on the Aggravated Punishment of Specific Crimes (특정범죄가중처벌등에관한법률), and that the act of evading corporate tax on income for the 1997 business year, the act of evading value-added tax for the first period of 1997, and the act of evading value-added tax for the second period of 1997 together constitute a single comprehensive crime in violation of the same item. Meanwhile, on the ground that the defendant had been sentenced to a fine of KRW 30 million for violation of the Labor Standards Act (근로기준법) by the Seoul District Court on April 18, 1997, and that judgment became final and conclusive on April 26, 1997, the court below imposed a separate sentence for the crime of violation of Article 8(1)(1) of the Act on the Aggravated Punishment of Specific Crimes arising from the act of evading corporate tax on income for the 1996 business year, pursuant to the latter part of Article 37 and Article 39(1) of the Criminal Code (형법).
B. (1) However, although it is originally the principle that the number of crimes for tax evasion offenses is determined based on the number of times the elements of the offense are satisfied, thereby constituting a single crime, Article 8(1) of the Act on the Aggravated Punishment of Specific Crimes makes the aggravating circumstance of the annual evaded tax amount being above a certain amount into a constituent element, combining it with the act under Article 9(1) of the Punishment of Tax Evaders Act (조세범처벌법) to form a single type of crime, and prescribes the statutory penalty therefor. Therefore, regardless of the type of tax, when the total amount of tax evaded during one year, when all types of tax are combined, is above the amount prescribed in Article 8(1) of the Act on the Aggravated Punishment of Specific Crimes, only a single crime in violation of the same paragraph is established; the crime in violation of the same paragraph constitutes a single crime on a yearly basis, and among such yearly crimes there exists a concurrent crime relationship; and the "annual evaded tax amount, etc." under the same paragraph means the amount obtained by combining the tax amounts evaded on an annual basis (from January 1 to December 31), regardless of the taxable period of each tax item (see Supreme Court en banc Decision 99Do3822, decided April 20, 2000). If the facts in this case are as stated above, the act of evading corporate tax on income for the 1996 business year, committed in 1997, and the act of evading value-added tax for the first period of 1997 together constitute a single comprehensive crime in violation of Article 8(1)(1) of the Act on the Aggravated Punishment of Specific Crimes, and the act of evading corporate tax on income for the 1997 business year, committed in 1998, and the act of evading value-added tax for the second period of 1997 together constitute a single comprehensive crime in violation of the same item, and the above respective crimes are in a concurrent crime relationship with each other.
(2) Meanwhile, even where a final and conclusive judgment on a crime of a different type intervenes in the middle of a comprehensive single crime, the comprehensive single crime is not thereby divided into two, and in such a case, the crime must be treated as a crime committed after the final and conclusive judgment (see Supreme Court Decision 85Do2767, decided February 25, 1986). Looking at this case, although the judgment on the defendant's violation of the Labor Standards Act became final and conclusive on April 26, 1997, as stated above, the crime of violation of the Labor Standards Act is a crime of a different type from the crime of violation of Article 8(1)(1) of the Act on the Aggravated Punishment of Specific Crimes. Since, among the crime of violation of Article 8(1)(1) of the Act on the Aggravated Punishment of Specific Crimes arising from the act of evading corporate tax on income for the 1996 business year and the act of evading value-added tax for the first period of 1997, the act of evading value-added tax for the first period of 1997 reached completion upon the lapse of the payment deadline on July 25, 1997, this crime must be treated, in relation to the aforementioned crime of violation of the Labor Standards Act, as a crime committed after the final and conclusive judgment.
C. Nevertheless, the court below made a determination different from the above, and thus the judgment below has an error of misunderstanding the legal principles concerning the crime of violation of Article 8(1)(1) of the Act on the Aggravated Punishment of Specific Crimes, etc., which affected the judgment, and the ground of appeal pointing out this error is well-founded.
3. Therefore, the judgment below is reversed, and the case is remanded to the court below, and it is so decided as stated in the Order.
Justice Bae Ki-won (Presiding Justice), Seo Seong, Yoo Ji-dam, Park Jae-yoon (Justice in Charge)