하나의 소득원천에 대한 조세포탈죄 사이의 공소장변경 허가에 대한 연구

When the same person misappropriates the income deposited in a specific bank account while operating both a corporation and a sole proprietorship in the same business area, there is an unusual case in which it is unclear whether the misappropriated income should belong to the corporation or the sole proprietorship. For example, if the specific bank account is a borrowed-name bank account, it is unclear whether the deposit was made to a corporation or to a sole proprietorship. At first, it was regarded as revenue that should be attributed to the corporation and charged with embezzlement and corporate evasion, but in the course of the trial, it was revealed that the misappropriated income should belong to the sole proprietorship. In this case, the question arises whether a change of indictment fact from corporate tax evasion to income tax evasion is permitted. In general cases, when the tax item is changed, the change of the indictment fact is not allowed, but in an unusual case like this, the need to reconsider traditional theories of change of the indictment fact is raised. If the tax items are different, it is expected that the ‘social facts that are the basis’ are also different. However, in this case, under the premise of the same source of income (the same revenue) and misappropriation, because it is an identical social basic fact, only the legal application question of whether it should be recognized as corporate tax or income tax remains. This is not the same case where different tax items exist. In this case, it is necessary to consider whether or not permit the change of the indictment fact should be made based on ‘whether the social basic facts underlying indictment fact are the same’. It also meets the requirement for the change of the indictment fact according to the provision of the Criminal Procedure Act. In conclusion, in this unusual case, permission to change the indictment fact should be allowed because the ‘social facts that are the basis’ cannot be said to be different in terms of the taxpayer, taxable income, and time of the end of crime. Even in such a case, if the change of the indictment fact is not permitted, the problems of conflicting results between the last trial and present trial due to duplication of procedures, and the expiration of the statute of limitations, etc., will occur, thus it will be against the sense of justice.