[2] The case holding that the crime of occupational embezzlement is established in a case where the representative director of the company has paid the attorney's expenses out of the company's funds while engaging in a lawsuit against the act of occupational embezzlement committed in the course of issuing new shares for the purpose of defending his management right

1. In principle, the cost of attorney-at-law in civil and criminal cases, in which a representative of a juristic person becomes a party, shall not be disbursed as the cost of the juristic person. In exceptional cases where a dispute arises in relation to a lawsuit or other legal procedures involving an individual who has a legal interest in a dispute, but has become a party to the lawsuit or other legal procedures, or acts performed lawfully for the purpose of the juristic person or as a representative, and where there is a special need to file a lawsuit or respond to a complaint for the interest of the juristic person in light of the overall circumstances at the time of the dispute, the relevant legal dispute may pay attorney-at-law fees at the cost of the juristic person (see Supreme Court Decision 2004Do6280, Oct. 26, 2006). On the contrary, in case where the legal person itself becomes a party to the lawsuit, in principle, the performance of the lawsuit can be deemed as the performance of the legal affairs, and thus, the attorney-at-law fees may be disbursed as the cost of the juristic person.

2. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, while filing a lawsuit seeking confirmation of invalidity of the issuance of new shares of Korea wheelchairs Co., Ltd. (hereinafter “Korea wheel wheel”), the court below affirmed the fact that the non-indicted filed a provisional disposition seeking prohibition of exercising voting rights for new shares acquired by Korea wheel Wheels’ employee stock ownership association as the other party to Korea wheel and Korea wheel Wheel employee stock ownership association, and dismissed it. However, the appeal was made on August 26, 2005 by Seoul High Court, and the defendant filed an objection against the above provisional disposition as the representative director of Korea wheel Wheel, and paid the above provisional disposition amounting to KRW 33 million with wheel Wheels’ money around September 222, 2005 and around March 20, 2006, the court below determined that the above provisional disposition case's expenses were not conducted for the purpose of defending the management rights of the defendant.

In light of the above legal principles and records, the above provisional disposition decision, etc. is basically derived from the crime of special breach of trust under the Commercial Act of the first instance judgment by issuing and allocating new shares at a face value below the fair appraised value for the purpose of defending management rights, and paying the stock price to the employee stock ownership association with the loan of Korea wheelchairs, etc.

3. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, on November 28, 2005, the court below affirmed the judgment of the court of first instance which found the defendant guilty of this part of the defendant's act, on the ground that the case of violation of the Commercial Act in which the non-indicted filed a complaint with the defendant, etc. was committed under the name of wheel Korea Law Firm, and that around December 6, 2005, the non-indicted paid 22 million won as attorney's fees to the defendant's fee. Since the case of violation of the Commercial Act is about the act of breach of trust committed in the course of issuing new stocks for the purpose of defending the management right of the defendant's side, the above attorney's fees shall not be deemed to have been paid for the defendant's business needs of wheel. In light of the above legal principles and records, the above decision of the court below is just, and there is no error of law such as misunderstanding legal principles

The Supreme Court precedents, which are superior to the defense counsel's grounds for appeal, are different from those applied to this case.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)