‘조세포탈의 목적’의 인정에 관한 고찰 ―사기 기타 부정한 행위의 적극적 은닉의도를 중심으로(3)―

Tax evasion is a crime committed by evading taxes with fraud and other unlawful acts. While the “purpose to evade tax” is not required to determine the crime of tax evasion, which is a result of Tatbestand in the context of tax reduction, but the purpose to evade tax as an intent to deceive the National Tax Service-that is a necessary element of fraud and other unlawful acts- is required to constitute the crime of tax evasion. The Supreme Court also makes this clear by ruling that it does not constitute fraud and other unlawful acts where tax revenue has been reduced by opening an account under someone else’s name to defend management rights or to register for Initial Public Offering (IPO). However, how can we determine whether the act of concealment of income was intended to deceive the National Tax Service or with other intent? The Supreme Court did not rule on how to determine the method to determine the affirmative intent to conceal, which is the intent to deceive the National Tax Service. Thus, the paper scrutinizes the method to determine the affirmative intent to conceal when the defendant asserts he or she had other intent which resulted in tax reduction. Without direct evidence to determine the affirmative intent to conceal, in order to determine the intent to deceive the National Tax Service with the circumstantial facts based on circumstantial evidence, the prosecutor must do the followings：1) the prosecutor needs to prove the hypothesis of affirmative intent to conceal beyond the reasonable doubt that the defendant concealed his or her income to deceive the National Tax Service；and 2) the prosecutor should be able to rule out reasonable doubts about the hypothesis on other intent that the concealment of income has been committed based on intent other than to deceive the National Tax Service. The specific element of selectivity and blockability should be discussed as to how reasonable doubts about the hypothesis on the other intent can be ruled out if the other intent was asserted. We should look at whether there were options to choose other methods of concealing income to achieve the other intent, and whether the extent of income concealment and the effect of tax reduction have been increased by blocking the natural flow of the execution of the chosen method to conceal income. If the defendant only had one viable option to realize the other intent and had not blocked the natural flow in carrying out the option, then the chosen concealment of income was derived from within the range of realization of the other intent. Thus, the reasonable doubt about the hypothesis on other intent should not be ruled out. Therefore, the prosecutor should completely rule out reasonable doubts about the hypothesis on the other intent by providing circumstantial evidence such as the evidence that exceeds the extent of concealment of income which is within the range of other intent or indicators that are unrelated to the other intent. But in practice, there is a tendency to find (one is guilty of) affirmative intent to conceal if any signs of concealment of income exists that resulted from assumed affirmative intent to conceal. The Court’s ruling that one’s act becomes fraud and unlawful only when affirmative intent to conceal is added only emphasizes that any reasonable doubt on the hypothesis about the affirmative intent to conceal should be ruled out. Thus, in addition, it is essential to exclude the reasonable doubt on the hypothesis about the other intent.