Whether a quarterly financial statement that is not subject to audit by an external auditor constitutes a financial statement under Article 20(2)8 of the Act on External Audit of Stock Companies (negative)

Articles 2 and 20(2)8 of the Act on External Audit of Stock Companies

Defendant

Defendant

Law Firm Shoho, Attorney Yoon Gyeong-hee

Seoul High Court Decision 2007No2609 decided April 25, 2008

The judgment below is reversed and the case is remanded to Seoul High Court.

1. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

According to the records, the defendant appealed against the judgment of the court of first instance and asserted only unfair sentencing as the grounds for appeal, and the court below reversed the judgment of the court of first instance by citing the defendant's appeal and rendered a minor sentence. In such a case, the defendant cannot be viewed as the grounds for appeal as to the judgment of the court of first instance, as alleged in the grounds for appeal, and further, in light of the records, the adopted evidence of the judgment of the court of first instance cited by the court below and the judgment of the court of first instance, it is proper to find the court below guilty of this part of the crime

2. As to the violation of the Act on External Audit of Stock Companies

ex officio deemed.

The summary of this part of the facts charged is that the Defendant purchased a cover bill of KRW 3.5 billion with the company fund withdrawn from the account of the Koco Information System, Co., Ltd. (hereinafter “Coco information”) on March 15, 2007, and provided it as a security after borrowing KRW 3.5 billion from the Nonindicted Party, and accordingly, the Defendant entered the cover bill in accordance with the accounting standards as a security asset, etc. However, on May 13, 2007, when preparing the first quarter report at the Coco Information Office of Coco Information Co., Ltd. of the Republic of Korea on May 13, 2007, the Defendant prepared a false financial statement in a manner that does not state the fact of providing the above cover bill in violation of the accounting standards, and published it through the Financial Supervisory Service’s electronic disclosure system on May 14, 2007.

However, examining the relevant provisions of the Act on External Audit of Stock Companies (hereinafter “ External Audit Act”) and the Enforcement Decree thereof, since it is apparent that all of the provisions related to the financial statements under the External Audit Act are premised on the financial statements subject to approval of a general shareholders’ meeting in each fiscal year, i.e., the financial statements subject to audit by an external auditor under the External Audit Act are the financial statements subject to the Act on External Audit. Thus, the financial statements subject to audit by the external auditor under the External Audit Act are the financial statements subject to the Act on External Audit. Thus, the financial statements under Article 20(2)8 of the External Audit Act and only the financial statements subject to audit by the external auditor do not fall under the quarter which is not subject to audit by the external auditor under the Act on External Audit.

Nevertheless, the court below found the defendant guilty of this part of the charges on the premise that the financial statements included in the first quarter report prepared by the defendant, i.e., the quarterly financial statements fall under the financial statements stipulated in Article 20 (2) 8 of the External Audit Act. In this regard, the court below erred in the misapprehension and application of the Act on External Audit, which affected the conclusion of the judgment.

3. Scope of reversal

Therefore, among the judgment below, the part which found the defendant guilty of violating the Act on External Audit of Stock Companies should be reversed, and the defendant's appeal as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) is without merit, but the court below found the defendant guilty of all the charges as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and each violation of the Securities and Exchange Act against the defendant who did not appear as the grounds for appeal, and sentenced the defendant to one punishment by deeming the defendant as concurrent crimes under the former part of Article 37

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)