「특정범죄 가중처벌 등에 관한 법률」 제8조의 2 범죄 구성요건에 관한 비판적 고찰

Considering the position and significance that tax invoices hold within Korea’s taxation system, the need for enforcing appropriate issuance and receipt of tax invoices is particularly high. The authors agree that criminal punishment is one such method of enforcement. However, in light of the supplementary nature of criminal law as last resort, as well as the constitutional principle of proportionality, caution must be exercised at any times to avoid excessive application of penal statutes against “violators of the tax order” who wrongly issued or received tax invoices. This article discusses the potential excessive punishment on violators of the tax order inherent in Article 8-2 of the Act on Aggravated Punishment of Certain Crimes (the “Act”) and reviews measures to prevent excessive expansion of Article 8-2’s scope of application. Specifically, this article provides an overview of the various interpretations and the case law regarding the elements that make up Article 8-2, namely “for profit purposes”, “person who committed a crime as provided for in Article 10(3) of the Act on Punishment of Tax Crimes” and “the aggregate amount of supply values, etc.” The article then takes a critical approach to review the validity of such interpretations and case laws. A brief summary of the conclusions reached is as follows： First, the “for profit purposes” requirement must be interpreted to mean direct and indirect economic benefits that exclude the economic benefits from the tax evasion. Ultimately, the statute should be amended by changing the “for profit purposes” requirement to read “as part of conducting business”, “for a consideration”, or “for purposes of receiving economic benefit other than tax refunds or tax credits”, or by adding phrases such as “from actions that are conducted as a business”. Second, issues may be raised as to whether Article 8-2 of the Act apply where parts that correlate with actual transactions and parts which do not do so coexist in the Tax Invoice Sum Table. Since the Tax Invoice Sum Table is merely a table which sums up the numbers and descriptions found in each tax invoice, focus must be on the actual tax invoice, with application of Article 8-2 being limited to the sum of supply values for which no actual transaction exist, whereby the criterion for determination of the latter should be each individual tax invoice. Third, including all supply values etc. found in the tax invoice, invoice, and Tax Invoice Sum Table when calculating the aggregate amount of supply values is generally valid. However, precautions should be taken so that the supply value in tax invoices and Tax Invoice Sum Tables that are based on the same fraudulent transaction are not counted repetitively. Fourth, issues arise whether there should be restraints on the relevant periods that are subject to summing up when calculating the aggregate amount of supply values, etc. Korean courts take the view that the crime provided for in Article 8-2 is a comprehensive single crime, and thus restrict the scope of aggregation based on this rationale. Questions of whether “the aggregate amount of supply values, etc.” should be limited to “yearly” values or “taxable periods” by means of amending the statute to include explicit reference should further be discussed and reviewed.