[1] The relation between the judicial effect of the resolution of the general meeting of an incorporated association under the Civil Act and the crime of false entry in the authentic copy

[2] The case holding that even if the procedure for convening an extraordinary general meeting of a reconstruction association or the method for resolution is in violation of the Acts and subordinate statutes or the articles of association and thus the resolution for replacement of an officer is null and void under private law, if the general meeting of a reconstruction association actually passed a resolution for replacement of an officer with such contents, and the registration for replacement of an officer was completed

[1] "False entry" as stipulated in Article 228 (1) of the Criminal Code means stating that there exists no fact against objective truth or that there exists no fact. Thus, in a case where a change of director, etc. is registered according to a resolution of the general meeting of an incorporated association under the Civil Code, it is reasonable to determine whether such act constitutes an act causing false entry in the authentic copy of a notarial deed in accordance with the resolution of the general meeting of the incorporated association under the Civil Code, barring special circumstances, whether it constitutes an act causing false entry in the authentic copy of a notarial deed, or not there is a resolution of change

[2] The case holding that even if the procedure for convening an extraordinary general meeting of a reconstruction association or the method for resolution is in violation of the Acts and subordinate statutes or the articles of association and thus the resolution for replacement of an officer is null and void under private law, if the general meeting of a reconstruction association actually passed the resolution for replacement of an officer, and the registration for replacement of an officer was completed according to the resolution

[1] Article 228(1) of the Criminal Act / [2] Article 228(1) of the Criminal Act

Defendant 1 and three others

Defendants

Attorney Lee Jong-il (for the defendant 4)

Daegu District Court Decision 2003No336 delivered on May 25, 2004

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

1. On May 3, 2002, the court below found the Defendants guilty of the Defendants’ failure to enter false facts in the corporate register, the original copy of the notarial deed, which is the original copy of the notarial deed, and dismissed seven executives of the association at the extraordinary general meeting of the 74 Sim Dong new apartment reconstruction association (hereinafter referred to as the “ reconstruction association”) and dismissed the Defendants from seven executives, including the president of the association at the extraordinary general meeting of the reconstruction association, despite the absence of a resolution to appoint the Defendants as executives, and submitted to the president of the association an application for registration of alteration to appoint astronomicality to the president of the association, the director of the association, and the auditor, who was unaware of the fact, caused the public official to make a false report and enter false facts in the corporate register, which is the original copy of the notarial deed, and found the Defendants guilty of the Defendants’ failure to enter the notarial deed and the facts charged of the notarial deed which had been held by keeping it in place around that time, on the grounds that all the Defendants were aware of the Defendants’ interests of the 20th general general meeting.

2. However, we cannot agree with the above determination by the court below for the following reasons.

Article 228(1) of the Criminal Act refers to the existence of any fact that does not exist against objective truth, or states any fact that exists as it does not exist. Thus, in a case where a change of director, etc. is registered following a resolution of the general meeting of an incorporated association under the Civil Act, it is reasonable to determine whether such act constitutes an act causing the false entry of the authentic copy of an authentic deed in accordance with the resolution of the general meeting of the incorporated association under the Civil Act, barring special circumstances, whether it constitutes an act causing the false entry of the authentic copy of an authentic deed, or not, separately, in the general

As determined by the court below, there is a serious defect in the procedures for convening an extraordinary general meeting of a reconstruction association, and in the case of a general meeting of a partnership, despite the prohibition of the general meeting by proxy from exercising the voting rights of the union members, the general meeting shall be held in the form of submitting a written consent to attend the general meeting promotion committee or acting by 170 persons who submitted the power to represent the general meeting, and the registration of change of the officer shall be completed in accordance with the resolution. In addition, even though the defendants could have known that the procedure for convening the general meeting or the method of resolution was invalid under private law because of the violation of the Acts and subordinate statutes or the articles of association, barring any special circumstance, if the above-mentioned resolution was adopted by the general meeting of a reconstruction association, it shall not be deemed that the defendants actually reported a false report to the public official and caused the public official to enter false matters in the corporate register, the original copy

Nevertheless, the judgment of the court below which recognized the establishment of the crime of false entry in the authentic copy of a notarial deed and the crime of the same uttering is erroneous in the violation of Acts and subordinate statutes concerning the interpretation and application of Article 228 (1) of the Criminal Act, and this affected the conclusion of the judgment.

3. 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 Jack-dam (Presiding Justice)