Defendant

Prosecutor

Scarg (prosecution) and the highest number of trials

Attorney Lee Ji-hoon

Suwon District Court Decision 2017Gohap8250 Decided May 17, 2018

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

1. Summary of the grounds for appeal;

In full view of the evidence submitted by the prosecutor, although the defendant was found to have committed each of the crimes of this case without the consent of non-indicted 2, the judgment of the court below which acquitted the defendant, which affected the conclusion of the judgment.

2. Determination

A. Summary of the facts charged in this case

The Defendant, as an internal director of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”), held 22,400 shares equivalent to 56% of the above Co. 40,00 shares on the list of shareholders, and Nonindicted Co. 2 did not have resolved to pay new shares upon the general meeting of shareholders on August 25, 2016. In addition, Nonindicted Co. 2 opposed to the Defendant’s demand for payment of new shares on August 25, 2016, because he did not have any money, for the Defendant’s demand for payment of new shares, later issued new shares or made a free increase of shares. As such, Nonindicted Co. 2 opposed to the Defendant’s demand for payment of new shares on August 25, 2016.

(i) the fabrication of private documents and the display of private documents;

Around September 2, 2016, the Defendant: (a) finished with Nonindicted 3 to a certified judicial scrivener on the foregoing company on the following occasions: (b) Nonindicted 2, who was the shareholder and Nonindicted 2, gave up the participation in the capital increase; (c) Nonindicted 2, at the time waived the participation in the capital increase; and (d) Nonindicted 4,000 shares out of the new shares scheduled to be issued on September 1, 2016, Nonindicted 4,21,50 shares Nonindicted 4,21,50 shares Nonindicted 6,50 shares, respectively; and (d) Nonindicted 2, who consented to the reduction of the maximum period necessary for the capital increase and delegated the registration of capital increase to Nonindicted 2, 200 shares; and (e) Nonindicted 2, who agreed to the reduction of the maximum period necessary for the capital increase.

On August 25, 2016, the Defendant: (a) had no general meeting of shareholders; (b) had Nonindicted 3 know of the fact that Nonindicted 2 opposed to capital increase; and (c) did not consent to the reduction of the maximum period of capital increase, a certified judicial scrivener, who used his computer, consented, without objection, to the effect that the maximum period of time is not known pursuant to Articles 418 and 419 of the Commercial Act when capital increase of Nonindicted Company 1 was increased by using the computer; (d) “Non-Indicted 2 of August 25, 2016; (e) the waiver of the acquisition of shares; and (e) the principal issued 80,000 shares as the shareholder of the Republic of Korea, as the resolution of the general meeting of shareholders on August 25, 2016, and (e) he arbitrarily prepared the Seocho-gu District Court for the waiver of the shares in his name on the basis of proportional distribution of shares owned by the shareholders as of August 25, 2016, and (e.g.

2. Any false entry, false entry, and electromagnetic records; and

Around September 2, 2016, the Defendant had Nonindicted 3 file an application for registration of capital increase with capital increase based on forged documents, etc., notwithstanding the fact that the said Nonindicted 3 passed a resolution on August 25, 2016.

Accordingly, the registry official, who is unaware of the fact, has entered the total number and types of the shares generated in the register of the above non-indicted 1 company, with the total number of shares issued, 120,000 shares, 120,000 shares of common shares, and 600,000 won in the amount column of the capital, and kept them in the place.

As above, the Defendant made a false report to a public official to record false facts in the commercial register, which is an electronic record identical to the original copy of a notarial deed, and exercised it.

B. The judgment of the court below

In light of the following circumstances, the lower court acquitted the Defendant on the ground that: (a) Nonindicted 5, and Nonindicted 8, who attended the meeting of the lower court, received the capital increase without Nonindicted 2’s participation after the meeting; (b) Nonindicted 5 received the capital increase without the Nonindicted 2’s participation; and (c) at the time, the Defendant alleged that the capital increase should have been made; (b) it is difficult to deem that Nonindicted 2 consented to the payment of the capital increase until the fund would have been made without any clear deadline or fixed amount; and (c) Nonindicted 2 was prosecuted on charges of divulging the Defendant’s trade secret in the present state of withdrawal from the Defendant Company, etc., the evidence submitted by Nonindicted 2 of the lower court’s testimony and the Prosecutor alone is insufficient to deem that the Defendant had the intention to make false statements and events, such as the forgery and uttering of private documents, and public electronic records, and there is no other evidence to acknowledge it.

C. Judgment of the court below

1) Relevant legal principles

The crime of forgery or alteration of private documents refers to the preparation by a person who is not authorized to prepare a document in the name of another person. Thus, if the title holder explicitly or implicitly consented to the preparation or alteration of the private document, it does not constitute the crime of forgery or alteration of the private document, and on the other hand, if the title holder knew of the fact at the time of the act without the real consent of the title holder at the time of the act, in full view of all objective circumstances at the time of the act, it is presumed that he/she naturally consented to the fact at the time of the act, it does not constitute the crime of forgery or alteration of the private document (see, e.g., Supreme Court Decisions 92Do3101, Mar. 9, 1993; 2002Do235, May 30, 2003); however, if a person other than the title holder knows that there was no explicit consent or consent of the title holder, it cannot be readily concluded that he/she consented to the preparation or alteration of the document even if the title holder knew knew knew.

(ii) the facts of recognition

According to the evidence duly admitted and investigated by the court below, the following facts are recognized:

A) On November 10, 2015, Nonindicted Co. 1 was established as a corporation on July 10, 2014 (the total number of shares issued (the general total number of shares issued (40,000 shares), 5,000 shares per share), and the Defendant is the sole internal director of Nonindicted Co. 1, and the shareholders holding 22,400 shares (the shares owned 56%) of the said corporation, and Nonindicted Co. 2 held 400 shares (the shares owned) of Nonindicted Co. 1 as of August 25, 2016, among the total number of shares issued by Nonindicted Co. 1, the total number of shares issued by Nonindicted Co. 40,000, 160 shares (the shares owned by Nonindicted Co. 2) for the purpose of software development, wholesale and retail business.

B) From August 2016 to Nonindicted 2 and Nonindicted 5, etc., the Defendant made a verbal contribution to the purport that the capital increase is necessary because of the shortage of Nonindicted Company 1’s funds to Nonindicted 2 and Nonindicted 5, etc., on several occasions, and on August 30, 2016, the Defendant sent to Nonindicted 2 and Nonindicted 8 a reply to the desire to participate in the capital increase by 8/31, such as several shares of the shareholders of Nonindicted Company 1. In relation to the capital increase, the Defendant sent the e-mail with the intent to participate and the amount of the capital increase by 8/31.

C) Around the time when the Defendant sent the foregoing mail, the Defendant, Nonindicted 2, Nonindicted 5, and Nonindicted 84 were gathered and convened. At the time of the meeting, the Defendant asserted that capital increase with respect to the company’s financial standing was essential, and Nonindicted 2 explicitly expressed his intention to refuse capital increase. While continuing to discuss this, the Defendant told that he would proceed with capital increase with capital increase at the time of the meeting. Nonindicted 2’s meeting was closed without expressing any intention to do so.

D) On August 25, 2016, the minutes of the general meeting of shareholders were prepared on August 25, 2016, stating that Nonindicted Company 1 held a temporary general meeting of shareholders and passed a resolution to amend the total number of shares to be issued and to issue new shares (hereinafter “instant resolution”), while only the Defendant was present at the meeting, and the Defendant was certified as to the said minutes of the general meeting of shareholders by a notary public on September 2, 2016.

The chairperson of the case of partial modification of the articles of incorporation of the Bill No. 1 included in the main text of the Table 1 provides that the company needs to revise the articles of incorporation regulations on the total number of shares to be issued by the company according to the issuance of new shares as follows: The copies shall be 1,00,000 shares without any objection by all the members. The total number of shares to be issued by the company under Article 5 (total number of shares to be issued by the company) shall be 1,00,000 shares. The chairperson of the case of new shares issued by the Bill No. 2 provides that since the increase in the business size of the company is difficult to carry out its business, he shall issue new shares and explain that the increase in capital is necessary, and he agrees to issue new shares without any objection by all the members: 1. The number of new shares issued by the shareholder: 400,000,000 won for new shares issued by the company: 5,000 won for new shares issued by the shareholder in proportion to the number of new shares issued by the company:

E) As indicated in the judgment of the court below, the Defendant’s side her fluencing Nonindicted Co. 3 with Nonindicted Co. 1’s process of registration of capital increase with consideration, and Nonindicted Co. 3 prepared a written consent for shortening the period and a written waiver of acceptance of stocks as indicated in the judgment of the court below on August 25, 2016, which became the name of Nonindicted Co. 2. Meanwhile, as of September 1, 2016, each of Nonindicted Co. 4, Nonindicted Co. 5, Nonindicted 6, and Nonindicted Co. 7’s new subscription form

F) According to the resolution of the instant case, Nonindicted Co. 1 issued new shares of KRW 80,00, par value 5,000 for ordinary shares (hereinafter “instant issuance of new shares”), and on the corporate register, the registration of issuance of new shares was completed on September 2, 2016, with “the total number of shares to be issued, KRW 1,200,000 for total number of issued shares, KRW 120,000 for total number of issued shares, KRW 120,000 for ordinary shares, and KRW 600,000 for capital,” and as seen above, the Defendant, etc., except Nonindicted Co. 2, acquired new shares issued.

G) Around December 27, 2016, Nonindicted Party 2 filed a lawsuit against Nonindicted Company 1 to the effect that “No resolution of this case shall exist at the temporary shareholders’ meeting of Nonindicted Company 1 on August 25, 2016, and that the issuance of the new shares of this case shall be invalidated” (Seoul Southern District Court 2016Gahap113000; hereinafter “relevant civil case”), and the said court rendered a judgment in favor of the Plaintiff on the ground that the instant resolution was made without undergoing the actual convocation procedure and resolution procedure on July 20, 2018, because there is a serious defect to the extent that the said resolution cannot be deemed to exist. Accordingly, the instant resolution does not exist and the new shares issued based on the said resolution are null and void.

H) The relevant provisions of the articles of incorporation of Nonindicted Company 1 are as follows.

2. Where new shares are issued by a resolution of the board of directors under Article 165-6 of the Financial Investment Services and Capital Markets Act; 1. Where new shares are preferentially allocated to members of the employee¡¯s association under Article 165-7 of the Financial Investment Services and Capital Markets Act; 3. Where new shares are issued by the exercise of stock option under Article 542-3 of the Commercial Act; 4. Where new shares are issued by the issuance of stock depository receipts under Article 165-16 of the same Act; 5. Where a company issues new shares to attract foreign investment under management of the Foreign Investment Promotion Act; 1. Where a company renounces or loses preemptive rights, or where new shares are issued by a resolution of the board of directors; 2. Where a resolution of the general meeting of shareholders is made by the chairperson of the company at least two weeks after the date following the date of the general meeting of shareholders; 3. Where a company issues new shares to attract foreign investment under management of the same Act, the general meeting of shareholders is to be convened by a resolution of the general meeting of shareholders;

3) Specific determination

Comprehensively taking account of the aforementioned facts and the following circumstances revealed by the evidence as seen earlier, the Defendant: (a) at the time of the preparation of each document as indicated in the judgment of the court below, even if Nonindicted 2 did not explicitly or implicitly delegate the authority to compile documents, and (b) made, via Nonindicted 3, a certified judicial scrivener who did not know the fact, to record false facts in the commercial register; and (c) made it possible to use them. In addition, in full view of all such objective circumstances, if Nonindicted 2, the nominal owner, knew the Defendant’s preparation of each document, it cannot be presumed that he/she naturally consented to the preparation of the document; and (d) around August 2016, the Defendant, Nonindicted 2, Nonindicted 5, and Nonindicted 84 gathered and made statements about the Defendant’s completion of the issuance of the new document at issue at the time of the meeting, the circumstance that Nonindicted 2 was aware of the consent to the preparation of each document at the time of the meeting is merely a mere expectation or prediction that he/she would consent to the preparation of each document at the time, and there is no illegality in all of the facts charged.

① From the beginning of August 2016, Nonindicted 2 constantly opposed to the issuance of new shares after Nonindicted 2 expressed his/her opposing intent. At the time of the above meeting, Nonindicted 2 expressed his/her opinion to the effect that it is necessary for the Defendant to raise funds. However, Nonindicted 5 expressed that Nonindicted 2 opposed to the opening of the meeting, but at the time of the meeting, Nonindicted 2 stated that the meeting was consistent with that of Nonindicted 2, and that Nonindicted 2 was aware of the conclusion that when the capital was increased, Nonindicted 2 would not participate at the meeting, and that Nonindicted 8 did not participate at the time of the capital increase, and that Nonindicted 2 would have been able to take part in the capital increase at the time of the capital increase. Nonindicted 2 stated that Nonindicted 2 would not have given his/her consent to the issuance of new shares at the beginning of the meeting, and that Nonindicted 2 would not have given his/her consent to the issuance of new shares at the end of the meeting, and that Nonindicted 2 would have agreed to the preparation of new shares at the beginning of each of this case.

② In light of the background leading up to the merger with Nonindicted Company 1 and Nonindicted Company 9 as the vice president and the fact that Nonindicted Company 2 was the representative director of Nonindicted Company 9, it appears that certain participation was required in the process of the issuance of the above new shares because there was a problem such as dilution of shares ratio and deprivation of partial management rights. Nevertheless, there was no signature in the document related to the issuance of new shares in the name of Nonindicted Company 2. Furthermore, the instant resolution was not actually made and the notification procedure was omitted to the shareholders, and the minutes of the general meeting of shareholders were only the Defendant was present, and Nonindicted Party 2 was excluded. There is no material to deem that Nonindicted Party 2 implicitly approved the issuance of the instant new shares.

③ On the contrary, at the time of the first issuance of new shares on December 2015, Nonindicted 2, the first issuance of new shares, which was made in the name of Nonindicted 2, was drafted at the time of the issuance of new shares, and on the contrary, Nonindicted 2 written consent for the waiver of the subscription and the extension of the period. According to the Defendant’s assertion, Nonindicted 3, a certified judicial scrivener, without any instruction, prepared a written consent for the waiver of the subscription and the extension of the period, which was made in the name of Nonindicted 2, and it is difficult to obtain this. If the Defendant did not participate in Nonindicted 3’s procedures for the issuance of new shares, Nonindicted 3 appears to have prepared the subscription form in the name of Nonindicted 2 with respect to the new shares to be underwritten by Nonindicted 2. Moreover, according to Article 25 of the Certified Judicial Scriveners Act, it appears that Nonindicted 3’s submission of a written consent for the waiver of the issuance of new shares and the issuance of new shares in the name of Nonindicted 2, which was made by Nonindicted 3’s agent or his agent.

④ In the case of the issuance of the first new shares, Nonindicted 2’s office appears to have been implied on the preparation of the subscription form for shares because the distance from the place where the headquarters of Nonindicted Company 1 was located is considerably far away. On the other hand, in the case of the issuance of the second new shares, Nonindicted 2 did not directly sign from Nonindicted 2 or have an intention to prepare each of the above documents despite the fact that Nonindicted 2 worked together with the Defendant at the headquarters of Nonindicted Company 1. However, it is difficult for the Defendant to find a reasonable ground for arbitrarily preparing each of the above documents.

⑤ Nonindicted 2’s share ratio as the second shareholder of Nonindicted Company 1 falls under 44%, and the Defendant’s share ratio was lowered from 56% to 63.67% due to the issuance of the instant new shares, and the Defendant’s share ratio was changed from 56% to 63.67%. The Defendant’s share ratio is the degree to satisfy the requirements for a special resolution of the general meeting of shareholders. Although there is a change in the share ratio, and Nonindicted 2’s influence on Nonindicted Company 1 is likely to be significantly decreased, there is no reasonable reason for Nonindicted 2 to assume such disadvantage. Moreover, there was no evidence that the Defendant issued new shares, if there was a change in the share ratio, did not reveal any specific discussion among the participants at the meeting, or that Nonindicted 2 subsequently explained in detail.

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

As described in paragraph 2-A(a) above.

1. Partial statement of the defendant;

1. Each legal statement of the witness of the court below, Nonindicted 2, 5, and 8

1. Each certificate, each new share subscription form, each new share subscription form, each share subscription form, written consent to the reduction of period, and waiver of acceptance of shares;

1. A complaint, full certificate of registered matters, certificate of personal seal impression, register of shareholders, and articles of association;

1. Application for registration of change of stock company;

1. Details of each mail;

1. Article applicable to criminal facts;

Articles 231 and 34(1) of the Criminal Act; Articles 234, 231, and 34(1) of the Criminal Act; Articles 228(1) and 34(1) of the Criminal Act; Articles 228(1) (a) and 34(1) of the Criminal Act; Articles 229, 228(1), and 34(1) of the Criminal Act (a) of the Act (a point in the event of an unofficial electronic record, etc.)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

In full view of all the circumstances, including the circumstances leading up to the instant crime, the Defendant’s age, character and conduct, criminal records, family relationship, occupation, etc., and the sentencing conditions specified in the records and pleadings, including the following: (a) the Defendant forged documents in the name of Nonindicted Party 2, whose nominal owner was considerably reduced according to the documents; (b) only one time prior criminal records and there was no record of criminal punishment exceeding the fine; and (c) the ultimate purpose of the instant crime is deemed not to have been achieved; and (d) the Defendant appears to have failed to achieve the ultimate purpose of the instant crime, the sentence shall be

Judges Kim Jong-soo (Presiding Judge)