[1] Method of assessing the value of stocks issued by a non-listed and non-registered corporation

[2] The case recognizing the establishment of a crime of occupational breach of trust against the issuance and acquisition of convertible bonds by the representative director of a non-registered and non-registered corporation

[1] In the case of stocks issued by a corporation which is not listed on the Stock Exchange or is not registered on the Stock Exchange, where there is a normal example of transaction that properly reflects the objective exchange value, the transaction price shall be deemed as the market price and the value of the stocks shall be evaluated. Meanwhile, the method of evaluating unlisted stocks under Article 54 of the Inheritance Tax and Gift Tax Act is merely a supplementary method of assessment, and the appraised value calculated by it shall not be deemed as immediately

[2] Where a representative director of a non-registered and non-registered and non-registered corporation issues convertible bonds at the conversion price with the intent to obtain marginal profits from the market price, and takes over and acquires a third party's name, and allocate some of the stocks acquired by exercising the conversion right to employees in an amount equivalent to the conversion price, the case holding that the crime of occupational breach of trust was established where the issuance and acquisition of convertible bonds obtains pecuniary benefits equivalent to the difference between the market price and the conversion price, and causes loss to the corporation

[1] Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 60 of the Inheritance Tax and Gift Tax Act, Article 54 of the Inheritance Tax and Gift Tax Act / [2] Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 355 (2),

[1] Supreme Court Decision 89Nu855 delivered on February 13, 1990 (Gong1990, 684) Supreme Court Decision 97Nu8502 delivered on September 26, 1997 (Gong1997Ha, 3332) Supreme Court Decision 2000Du1287 delivered on July 28, 200 (Gong200Ha, 1952)

Defendant

Defendant

Law Firm Slun Law Firm, Attorneys Seo Jong-woo et al.

Busan High Court Decision 2001No189 delivered on May 30, 2001

The appeal is dismissed. 118 days out of detention days after the appeal shall be included in the original sentence of the original judgment.

The grounds of appeal are examined.

1. As to the misapprehension of legal principles as to the appraisal of market price of stocks

In the case of stocks issued by a corporation which is not listed on the Stock Exchange or is not registered on the Stock Exchange, if there is a normal transaction example reflecting the objective exchange value thereof properly, the value of the stocks shall be assessed by considering the market value. Meanwhile, the method of evaluating unlisted stocks under Article 54 of the Inheritance Tax and Gift Tax Act is merely a supplementary method of assessment, and the appraised value calculated by it cannot be immediately deemed as the value of stocks (see Supreme Court Decision 2000Du1287, Jul. 28, 2000).

According to the reasoning of the judgment below, in order to determine the proper conversion price of the convertible bonds of this case, the court below determined that the proper market price of the non-indicted company's stocks at the time of the issuance of the convertible bonds of this case should be based on the transaction price of the non-indicted company at the time of the issuance of the convertible bonds of this case. In full view of the transaction status and transaction price of the non-indicted company's stocks at the time of the issuance of the convertible bonds, the closeness to the transaction price of the main value of the non-indicted company's stocks at the time of the public offering of new stocks and the public offering of new stocks issued by the non-indicted company, and the Internet market price of the non-indicted company's stocks at least 10,000 won per share among the trading cases of the non-indicted company's stocks of this case at the time of the issuance of the convertible bonds of this case. In light of the records, the above determination by the court below is just, and it does not contain any error in the misapprehension of legal principles as to the evaluation method of the non-indicted stocks.

2. As to the misapprehension of legal principles as to the establishment of breach of trust

Examining the evidence adopted by the court below in light of the records, the defendant, as the representative director of the non-indicted company, violated his duty, and in collusion with the non-indicted 1, an officer in charge of the issuance of the convertible bonds with the intent to obtain profit from the market price due to the conversion of shares, although there was no urgent need to raise funds at the time of the issuance of the convertible bonds, the rate of face value of the bonds shall be zero percent, one hundred percent, one year from the date of the issuance of the bonds, and one year from the date of the issuance of the conversion price shall be less than ten thousand,00 won per share of the non-indicted 2, which is the appropriate market price of the non-indicted company's stocks at the time of the issuance of the convertible bonds, and thus, the defendant cannot be found to have violated the above legal principles as to the non-indicted 1's property interest of the non-indicted 1,000 won, which is the difference between the market price of the convertible bonds per share and the conversion price of the non-indicted 2's total amount of 1,00000 billion won.

3. Therefore, the appeal shall be dismissed, and one hundred and eighteen days of detention days after the appeal shall be included in the original sentence of the judgment. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Yong-woo (Presiding Justice)