조세범칙조사 불승인결정 사건에 대한 공소제기와 공소권 남용

Prosecutor's public prosecution on a case that was decided by the Tax Offense Investigation Review Committee (hereinafter "Committee) not to be investigated as tax offense case may be interpreted as violation of double jeopardy principal (Art 15③, Procedure for the punishment of Tax Evaders Act, hereinafter "Procedure"), despite the absence of "notification" of such decision. Risk of double jeopardy occurs when tax offense investigation case goes under review of the Committee(Article 14①, Procedure) for decision of punishment. This is because such review goes through the same decision making process of the same committee as non-approval decision on conversion to tax offense investigation. So such public prosecution should be dismissed by judgement (Criminal Procedure Act, Article 327 ① 2) for even if Procedure 15 ③ cannot be directly applied, such prosecution incurs risk of de facto double jeopardy and is clear abuse of discretionary power by the prosecutor. Director of the competent regional tax office and the Committee, along with the Prosecution, constitutes criminal justice system in punishment of tax offense. This is necessary to protect the trust of people on tax authorities' decision. The principal of estoppel should apply to tax authorities' decision so that the accused who went under the investigation by the tax authorities can believe that he will not be indicted by the prosecutor. This belief shall only be upheld when the subject of tax investigation(investigation that was decided not to be converted into tax offense investigation) pays all his unpaid tax voluntarily, and when the tax investigation and the indicted case are regarding the same case and illegality are of the same amount. Non-approval of conversion to tax offense investigation decision should be upheld similarly to a judicial precedent with Materielle Rechtskraft in order to protect people's belief in such tax decisions.