조세범칙사건에서 세무공무원이 작성한 심문조서의 증거능력

Abstract

The Supreme Court, through Supreme Court Decision 2022Do8824 decided December 15, 2022, determined that judicial police officers or special judicial police officers are authorized to take wide-ranging measures to restrict fundamental rights according to the relevant statutes or regulations, and thus interpreting that public officials in charge of tasks similar to criminal investigation correspond to judicial police officers or special judicial police officers is unreasonable unless otherwise expressly provided, and, as tax officials in charge of tax offense investigation were not stipulated as special judicial police officers in the Act on the Persons Performing the Duties of Judicial Police Officers and the Scope of Their Duties, and the legal nature of tax offense investigation basically corresponds to an administrative procedure, even if tax officials are authorized to interrogate, seize, or search tax offense suspects, and the details and substance of tax offense investigation are similar to those of a criminal investigation procedure, tax offense investigation cannot be seen as a part of criminal procedure. Under this premise, the subject case determined that as interrogation reports prepared by tax officials cannot be deemed the same as those prepared by investigative agencies, and thus whether they are admissible as evidence cannot be determined in accordance with Article 312 of the Criminal Procedure Act, and they correspond to documents containing a statement prepared by a person other than a criminal defendant, according to Article 313 of the Criminal Procedure Act, they are admissible as evidence only when the authenticity of their formation is proved by a statement made by the person who prepared the document during trial and, further, the statement entered in the documents was made in “a particularly reliable state,” and in such a case, when determining whether such statement was made in “a particularly reliable state,” whether the essential details of the provision on the procedure for the preparation of interrogation reports, including the announcement of the right to refuse to make statements and the protection of the right to have the assistance of counsel, specified in the relevant statutes or regulations such as the Procedure for the Punishment of Tax Offenses Act may be infringed or violated should be considered. As interrogation reports prepared by tax officials in tax offense cases are based on the Procedure for the Punishment of Tax offenses Act, the Procedure for the Punishment of Tax offenses Act should be preferentially examined to investigate the legal nature thereof. However, the Procedure for the Punishment of Tax offenses Act prescribes that when a tax official has completed an investigation of a tax offense including interrogation of tax offense suspects, he or she should file a report thereof with the head of a district tax office, etc., which are administrative agencies, and the head of a district tax office, etc. should take an administrative disposition of tax offense based on such report. As such, tax offense investigation has some similar aspects to criminal investigation in terms of the details and substance but basically has the nature of administrative procedure as investigation activities of the head of a district tax office, etc., which are administrative agencies, collecting data necessary to take an administrative disposition of tax offense in accordance with the Procedure for the Punishment of Tax offenses. Even though lawmakers intentionally vested administrative agencies, not investigative agencies, with some authority regarding substantial juridical procedures in consideration of the characteristics of tax offenses, interpreting administrative agencies as investigative agencies for such reason exceeds the bounds of the interpretation of the language and text of the provisions on criminal procedures strictly requiring clarity and legal stability. This paper examines the grounds for an argument, and the significance, of the legal principles presented by the subject case, focusing on ① whether the current statutes or regulations can be seen to regulate tax officials in charge of tax offense investigation as special judicial police officers and ② whether tax officials may be interpreted to substantially correspond to investigative agencies in light of the powers of disposition by legal force conferred on tax officials and the details of tax offense investigation.