In a case where the Defendant was prosecuted for breach of trust on the ground that he dual transfer of the shares of Company A to Company B and registered Company C as a shareholder in the register of shareholders, the case holding that the Defendant was not guilty on the ground that he did not “the status to manage another’s business” in relation to Company B, in a case where the Defendant was not guilty.

In a case where the Defendant was indicted for breach of trust on the ground that he again transferred the shares of the Defendant Company A to Eul Co., Ltd. (hereinafter “the first sale contract”) after receiving the balance transfer, and again registered the shareholders’ list Byung as a shareholder, and thereby inflicted damages on Eul Co., Ltd., the case holding that the Defendant was not guilty on the ground that, in light of all the circumstances, the first sale contract which the Defendant concluded as the Defendant’s agent is contrary to the principle of prohibition on bilateral representation under Article 124 of the Civil Act, or that it is highly likely to be null and void as it constitutes an abuse of authority under Article 107(1) proviso of the Civil Act, in full view of the fact that the Defendant

Article 355(2) of the Criminal Act; Articles 107(1), 124, and 565 of the Civil Act; Article 325 of the Criminal Procedure Act

Defendant

Laphee et al. and one other

Attorney Park Jong-young

The defendant shall be innocent.

1. Summary of the facts charged

Around January 31, 2012, the Defendant entered into a share purchase contract (hereinafter referred to as “first sale contract”) with Nonindicted Co. 2 (hereinafter referred to as “Nonindicted Co. 2”) holding the victim Nonindicted Co. 1 Co., Ltd. to sell 3479 shares at KRW 240,000,000 (hereinafter referred to as “Nonindicted Co. 2”), which he/she owns, at the Seosung-gu Seosungdong Pungdong Pungdong Pung-dong Pungdong hotel coffee, and received transfer of KRW 36,00,000 as the contract deposit, and was obligated to perform the procedures for share transfer from the victim on February 14, 2012, and received KRW 24 million from the victim.

On February 15, 2012, the Defendant concluded a share purchase contract with Nonindicted Co. 2’s directors to sell KRW 3479,479 shares to Nonindicted Co. 3 for KRW 360 million (hereinafter “Nonindicted Co. 2 purchase contract”), and entered Nonindicted Co. 3 in the shareholder registry on March 19, 2012, thereby obtaining pecuniary benefits of KRW 240 million and causing damage to the victim.

2. Facts recognized based on records.

(a) The details of concluding the first sale contract;

1) The victim’s efforts to purchase the shares of Nonindicted Company 2

A) From around October 2010, Nonindicted 4 asked Nonindicted 5 to purchase the shares of Nonindicted Company 2 from the victim’s representative director, Nonindicted 5 asked Nonindicted 6 who worked for Nonindicted Company 2 for about 35 years.

B) Nonindicted Co. 7, a director of Nonindicted Co. 2 and a shareholder of Nonindicted Co. 7, was the shareholder of Nonindicted Co. 6 in the past. Nonindicted Co. 6 requested Nonindicted Co. 6 to identify the person to purchase his own stocks of Nonindicted Co. 2 at the end of 2010 or at the beginning of 2011, and Nonindicted Co. 6 introduced Nonindicted Co. 5 to Nonindicted Co. 7.

C) Nonindicted 5 discussed to the effect that Nonindicted 7 had an intention to purchase more than 51% of the shares of Nonindicted Company 2 without expressly disclosing the purchaser to Nonindicted 7, and Nonindicted 7 had an intention to buy to the shareholders of Nonindicted Company 2.

D) Nonindicted 6 confirmed the Defendant’s intent to sell the shares among the shareholders of Nonindicted Company 2, and Nonindicted 7 asked Nonindicted 8,9, and 10 among the shareholders of Nonindicted Company 7 that they intended to sell the shares, but, for about one year thereafter, did not seem to coincide with the victim’s opinion on the purchase price per bus.

2) A sales contract concluded on January 31, 2012

A) On January 31, 2012, Non-Indicted 7, 8, 9, and 10, etc. sold the shares of Non-Indicted 2 owned by each of the victims at the Seosung-dong Seosung-dong Pungdong Pungdong Pungdong hotel shop. The price per each bus was at least KRW 45 million, but up to KRW 50 million.

B) The purport that “a contract shall be paid at 15% of the total transfer value and the balance by February 28, 2012,” with respect to the payment method and time of the price under the contract, is stated as follows.

3) Sales contract concluded on January 31, 2012

A) The Defendant, having Nonindicted 6 as his agent at the same place in P.M. on the same day, sold 340 million won (40 million won per bus) prior to the issuance of Nonindicted Company 2’s share certificates to the victim, and received 36 million won as the down payment on the same day.

B) Although the sales contract of Nonindicted 7, 8, 9, and 10 is identical to the share sales contract of Nonindicted 7, 8, 9, and 10, there is no indication of the payment method and time

C) Of the sales contract on January 31, 2012, Nonindicted 11’s share purchase and sale contract is only Nonindicted 11’s share sale and sale contract. Nonindicted 11 also sold shares by designating Nonindicted 6 as his/her agent (in each bus, KRW 40 million) and the power of attorney of the Defendant and Nonindicted 11 as his/her agent is both the same pen, and the share sale contract is accompanied by Nonindicted 6’s seal instead of the Defendant and Nonindicted 11’s seal.

D) On the same day, the Defendant stated that “The remaining amount of KRW 24 billion was paid at the end of February 2012” from Nonindicted 6, and Nonindicted 11 also was paid on February 28, 2012.

(b) The conclusion of the second sales contract;

1) The status of transfer of the balance of the sales contract

A) Nonindicted 7, who arranged for the sale of shares by Nonindicted 8, 9, and 10, urged the victim to pay any balance among the persons eligible for brokerage, but the Defendant and Nonindicted 6 did not demand the payment of the balance.

B) Nonindicted 6 received the statement from Nonindicted 5, etc. that he remitted the balance of the first sale contract to the Defendant on February 13, 2012, and delivered it to the Defendant. As a result of the confirmation on February 13, 2012, the Defendant did not immediately notify Nonindicted 6 of the payment of the balance. Although the Defendant immediately notified Nonindicted 6 of the payment of the balance, it did not urge or resist the payment of the balance at that time.

C) On February 13, 2012, the Defendant received letters from Nonindicted 3 at night on February 9, 2012, and told Nonindicted 6 to the effect that “to cancel a contract” by calling for Nonindicted 6’s purchase price and management dispute.

D) On the letter of Nonindicted 3, Nonindicted 3 stated that ① shareholders of Nonindicted Company 2, including the Defendant, have been threatened with the management right by selling the shares to the victim; ② the price per bus by the seller of the shares including the Defendant is different; ③ the intent to purchase the shares of the Defendant in KRW 60 million per bus; and ③ the intention to purchase the shares of the Defendant in KRW 60 million per bus, penalty, and legal representation.

E) On February 13, 2012, Nonindicted 6 knew from the Defendant that Nonindicted 3 sent Nonindicted 3 a letter to the same effect to the Defendant before receiving any claim related to the fact of arrival of Nonindicted 3’s letter at night. Nonindicted 6 knew from a third party.

F) On February 13, 2012, Nonindicted 12, a personnel in charge of accounting of the victim, remitted the balance to Nonindicted 7,10, and 11 of the stock sellers.

2) The circumstances after the transfer of the balance of the sales contract

A) On February 14, 2012, the victim received a loan from a financial institution on February 14, 2012 and remitted the balance of KRW 24 million to the Defendant’s account.

B) On February 14, 2012, Non-Indicted 6 discussed the Defendant’s objection and cancellation intention at the Defendant’s house, and discussed it, and received Non-Indicted 3’s letter from the Defendant, and the Defendant “to confirm how he/she became the victim’s office.”

C) On February 14, 2012, Nonindicted 6, when immediately consulting with the victim’s side, immediately transferred Nonindicted 3’s letter to the victim’s side, and on February 15, 2012, Nonindicted 6 attempted to deliver KRW 30 million to the Defendant for additional payment, but the Defendant refused this.

D) On February 15, 2012, around 10:58, the Defendant returned the balance 2.4 million won to the victim by account transfer. On the same day, the victim returned the balance 2.4 million won to the Defendant’s account at around 12:09 on the same day, and immediately suspended deposit to its account.

E) On February 15, 2012, the Defendant: (a) by content certification, returned the balance unilaterally remitted to the victim against his/her will; (b) sought to pay a double of the down payment under Article 565 of the Civil Act; (c) was closed and the account of the victim was not returned; and (d) notified the fact that the account is scheduled to be deposited if the account is closed even until February 16, 2012.

3) The circumstances after the conclusion of the second sale contract

A) On February 15, 2012, the Defendant sold the said shares to Nonindicted 3 in KRW 360 million (per bus KRW 60 million), and received KRW 396 million in total for sales proceeds and for the penalty for the first sales contract.

B) On February 16, 2012, around 16:00, the Defendant deposited a deposit against the victim on the ground that the Defendant refused to receive KRW 276 million, in total, the purchase price and penalty following the cancellation of the first sales contract.

C) On February 16, 2012, Nonindicted 12 in charge of accounting of the victim transferred the balance to Nonindicted 9, 13, and 8 among the stock sellers.

3. Defendant's assertion;

The first sale contract is invalid or legally cancelled on the ground that the agent of the non-indicted 6, etc. was not effective or legally cancelled, and the second sale contract is not an act of breach of trust, and there is no intention of breach of trust.

4. Determination

(a) The validity of the first sale contract;

The facts charged are based on the premise that the first sale contract is valid, and the defendant has "the status to handle another's business" in relation to the victim.

In addition to the following circumstances based on the record as seen earlier, the first sales contract that Nonindicted 6 entered into as the Defendant’s agent is contrary to the principle of prohibition of bilateral representation under Article 124 of the Civil Act, and ② constitutes a breach of trust for the benefit of the victim, who is himself/herself or a third party against the Defendant’s interest and intent, and the victim, who is the other party, was fully aware of such fact, constitutes an abuse of authority under the proviso of Article 107(1) of the Civil Act, and thus, is likely to be seen as an abuse of authority under an analogical interpretation of Article 107(1) of the Civil Act.

Therefore, it is difficult to recognize that the defendant has "the status to handle another's business" in relation to the victim, and there is no evidence to acknowledge it otherwise.

1) From around 2010, Nonindicted 6 received a request from Nonindicted 5 from the victim’s representative director, Nonindicted 6 received a request for a seller’s physical color among the shareholders of Nonindicted Company 2, introduced Nonindicted 7, etc. to Nonindicted 5, and consulted on the trading price, etc. for at least one year until the date of concluding the first sale contract.

2) In light of the relationship between Nonindicted 6 and Nonindicted 7 and 5, Nonindicted 6 appears to have been naturally aware of the purchase price of other shareholders of Nonindicted Company 2, which was concluded on the same day as the first sale contract, and there is considerable doubt as to whether Nonindicted 6 set the lowest price per bus of the Defendant for the benefit of the Defendant in comparison with other shareholders without any special circumstance. Rather, it seems that Nonindicted 6 set the lowest price per bus of the Defendant for the benefit of the Defendant was the Defendant, rather than the Defendant’s economic profit, taking into account the financial standing and purchase cost of the victim.

3) The Defendant did not demand the payment of any balance before the payment date of the balance under the first sale and purchase agreement, and Nonindicted 6 had already been aware of the fact that Nonindicted 3 sent a letter to the Defendant before receiving a claim from the Defendant at night on February 13, 2012 and the content thereof had already been known. As such, immediately after receiving the claim from the Defendant, the Defendant appears to have closely contacted the victim’s and the Defendant’s speech and behavior, and thereafter, the Defendant received Nonindicted 3’s letter from the Defendant and sent it to the victim’s side.

4) While Nonindicted 6 is the representative of the Defendant in form, it closely discussed with the victim before and after the conclusion of the first sales contract, and the situation of the investigation was shared while attending several meetings of the victim's countermeasures against this case, and the preparation of countermeasures against this, not the interests of the Defendant but the interests of the victim. When comparing this speech and behavior of Nonindicted 6 and the speech and behavior of Nonindicted 5, it seems that Nonindicted 6 was actually the same role as that of Nonindicted 5 and was represented by the victim or was at least for the interest of the victim in form.

5) Most of the investigative agencies and legal statements made by Nonindicted 6 had been conducted through the countermeasures conference on which the legal assistance of the victim had already been premised, and thus, there is a high possibility of being contaminated. The contents are disadvantageous to the Defendant, and are unilaterally made in the direction favorable to the victim, and it is difficult to believe that it does not coincide with the objective circumstances at the time.

6) Nonindicted 6 worked for about 35 years in Nonindicted Company 2 and retired from office in around 2005. In the process of retirement, due to unlawful acts committed during the period of retirement from January 2010 to March 2010, Nonindicted Company 2 lost and was subject to seizure of Nonindicted Company 2’s shares. Through this process, Nonindicted 6 had a good appraisal in Nonindicted Company 2, and Nonindicted 5 had a victim’s intent to purchase more than 51% of the shares of Nonindicted Company 2 through Nonindicted 5, and the victim’s intent to purchase more than 51% of the shares of Nonindicted Company 2 was known. Ultimately, Nonindicted 6 had a sufficient motive and reason to act in consideration of the interests of the victim rather than the interests of the defendant in the process of selling Defendant’s shares.

B. Whether the first sale contract was rescinded

Even if the conclusion of the first sale contract is valid, it is not deemed that the Defendant’s position to manage another’s business in relation to the victim is not “the position to manage another’s business” because it was already cancelled and becomes null and void ex post in light of the facts established before and after February 14, 2012.

On February 14, 2012, where the victim transferred all remaining amounts to the Defendant on the record, the period during which the payment is due is due, the question is whether there is “special circumstances” in which the commencement of the performance is not legally allowed.

Article 565 of the Civil Act restricts the time when one of the parties commences the performance of the right to rescission until the time when one of the parties has already commenced the performance of the right, and the party is expected to have disbursed the necessary expenses, and the contract is expected to be fulfilled. If the contract is rescinded by the other party at this stage, it is likely to cause unexpected damages. Therefore, it is intended to prevent such occurrence. Therefore, even if there is an agreement for the performance of the right to rescission, unless there is a special circumstance, such as a special agreement under which the party does not commence the performance of the obligation before the due date, the performance can be commenced (see Supreme Court Decision 92Da31323, Jan. 19, 1993,

“Special circumstances”, in which the commencement of performance cannot be recognized prior to the due date, means a situation in which a seller is deemed to have benefit of time even if the due date is determined. This ought to be determined specifically by comprehensively taking into account various circumstances, such as the form of an act, content of an obligation, the purpose during which the obligation is to be due, the obligor’s disregarding the obligor’s act, etc.,

Comprehensively taking account of the following circumstances according to the record, it is reasonable to deem that the payment date of the remainder (as of February 28, 2012) has the benefit of time on behalf of the seller for the defendant, who is the seller, and in such a case, the victim is unable to commence performance before the due date, and thus, cannot be performed against the intent of the defendant. Thus, even if the victim unilaterally commenced performance to the defendant before the due date, it does

1) The remaining payment date was set on February 28, 2012, taking into account the victim’s financial standing. Unlike other shareholders who sold shares to the victim, the Defendant did not urge the victim to pay the balance. In particular, the Defendant did not make any particular claim or demand the payment of the balance, even though he/she confirmed on February 13, 2012 that it was not made after having heard Nonindicted 6’s intent to pay the balance from the victim to the victim, and confirmed that it was not made. This means that the Defendant failed to anticipate that the balance would be paid before February 28, 2012, which was the due date, and did not demand it.

2) On February 13, 2012, the day immediately before the payment date of the remainder, the victim appears to have been notified by Nonindicted 6 of the fact that the Defendant received correspondence from Nonindicted 3 and was in the cancellation of the first sales contract. Accordingly, the victim transferred the balance of the Defendant’s own account at around 09:24 on the following day.

3) On February 16, 2012, the victim urged the payment of any balance among the shareholders who had demanded the payment of the balance, but failed to demand the payment of the balance, he/she received a loan from a financial institution on February 14, 2012 and remitted the balance to the Defendant and other shareholders. On this day, the victim did not transfer the balance to the Defendant and other shareholders. This means that there was an urgent situation under which the payment of the balance should be made even if the victim waivers the payment of the balance due to the absence of the demand for payment of the balance, even if the victim did not demand the payment of the balance, even if he/she did not demand the payment of the balance, even if he/she did not demand the payment of the balance,. In such a case, the “emergency circumstance” refers to the Defendant’s recognition of the fact that the Defendant intended to cancel the first sales contract.

4) On February 14, 2012, the victim did not reimburse the Defendant for any expenses related to the performance of the first sale contract prior to the transfer of the balance to the Defendant, and it is difficult to view that the current situation is binding enough to the extent that the contractual rescission should not be recognized by law. As long as the Defendant delivered to the victim the intent of strong resistance and rescission on the content, motive, purpose, etc. of the first sale contract through Nonindicted 6 at night on February 13, 2012, it should be deemed that the Defendant, the seller, at least at that time, has the benefit of the time during which the contract can be rescinded until the due date for the remainder payment.

5) The point of time is that the victim is expected to have been a contract, and it is difficult to see that there was a risk of unexpected damages if the first sale contract is rescinded from the defendant. Rather, the victim is deemed to have sufficiently recognized the possibility of rescinding the first sale contract. Thus, even if the defendant's exercise of the right to rescission is affirmed, it does not go against the purport and purpose of restricting the time when the right to rescission is exercised.

6) On February 14, 2012, Non-Indicted 6 stated that, immediately after the balance was remitted on February 14, 2012, Non-Indicted 6 stated the fact that the balance was remitted to the Defendant upon Non-Indicted 3’s request from the Defendant’s home to the Defendant’s home, and Nonindicted 6 received Non-Indicted 3’s letter of credit, and subsequently agreed on whether to pay any

However, whether there was a remittance of the balance from anyone, the consistency is not maintained, such as the time when the statement was not clear at all when and when, and the reversal thereof, and the defendant made a statement that there was no particular speech despite hearing the fact of the transfer of the balance. This is also contradictory to the defendant's speech and behavior since the investigative agency that confirmed the balance of the next day and immediately returned it, even in light of the empirical rule and the prior and following relationship between the fact of recognition as seen earlier, it is difficult to believe that there was a consistent statement since the investigative agency that the defendant immediately returned it after checking the balance of the next day and immediately returned it.

C. Whether the defendant is in a position to manage another's business

Even if the conclusion of the first sale contract was effective and not rescinded, the facts charged are premised on the fact that the Defendant’s “Duty to perform the stock transfer procedure” constitutes “other’s business.”

The fact that the shares of Nonindicted Company 2 were not issued and that the first sale contract was concluded at the end of six months after the establishment of Nonindicted Company 2 was made clear in the record.

The transfer of shares prior to the issuance of share certificates takes effect only with the declaration of intention by the parties, and the transferee can independently file a claim for the transfer of shares with the company by proving that he/she acquired shares without any need for cooperation by the transferor, barring any special circumstance. Therefore, the Defendant, the transferor of shares, cannot be held liable to cooperate with the victim in the transfer of shares (see, e.g., Supreme Court Decisions 2005Da4537, Sept. 14, 2006; 2010Do16391, May 13, 201).

Therefore, it is difficult to see that the defendant is in a position to deal with the "Duty to transfer shares to the victim" as another person's business, and there is no evidence to acknowledge otherwise.

(d) Intentional breach of trust

In the case of denying the criminal intent of the crime of breach of trust, it is inevitable to prove by the method of proving indirect facts having considerable relevance with the “suspect,” which are the subjective elements of the crime of breach of trust due to the nature of the object, and among such indirect facts, the question of suspicion against the criminal intent of breach of trust should be resolved (see Supreme Court Decision 98Do4022, Apr. 13, 199, etc.).

Comprehensively taking account of the aforementioned facts and various circumstances, the Defendant: (a) received Nonindicted 3’s letter on February 13, 2012, and the victim concluded a first sale contract for the purpose of the bad faith of management rights of Nonindicted Company 2; and (b) during that process, Nonindicted 6 was also aware of the victim’s interest, not his client’s own interest, but the victim’s interest; and (c) took measures such as immediately returning the balance transferred with the intent to cancel the contract and sending the certificate of contents; (d) through such a series of process, there was sufficient grounds to believe that the Defendant was rescinded the first sale contract; or (e) the evidence submitted by the prosecutor alone was insufficient to acknowledge the intention of the crime of breach of trust.

5. Conclusion

The facts charged in this case constitute a case where there is no proof of crime, and thus, the acquittal shall be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges Choi Dok-ho

Note 1) Although it is written as “ March 16, 2012,” it is apparent that it is a clerical error in the text of “ February 16, 2012.”