2011Nu21203 Revocation of disposition of imposition of penalty surcharge, etc.

A person shall be appointed.

○○○○

○○○, ○○

[Defendant-Appellant]

Sponsor

Representative ○○○○

Litigation performer ○○○

Seoul Administrative Court Decision 2010Guhap41109 decided June 1, 2011

March 29, 2012

May 10, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of imposing penalty surcharge of KRW 440,00,000 against the Plaintiff on September 27, 2010 is revoked.

2. Purport of appeal

The order is as set forth in the text.

1. Details of the disposition;

The court's reasoning for this part is as stated in Paragraph (1) of the judgment of the first instance except for those prior to being repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act (Act No. 8635 of Aug. 3, 2007; hereinafter the same shall apply). The court's reasoning for this part is as stated in Paragraph (2) of Article 8 of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, since it is the same as stated in Paragraph (2) of the judgment of the second instance except for those prior to being repealed by Act No. 8635 of Feb. 4, 2009; hereinafter the same shall apply.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The reasoning for this Court's explanation is as follows: Article 260-11 of the former Securities and Exchange Act of Article 206-11 of the former Securities and Exchange Act of Article 206-11 of the former Securities and Exchange Act of Article 206-11 of the former Securities and Exchange Act of Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act of this Court shall be cited as it is.

B. Relevant statutes

The court's explanation on this part is as stated in Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, except for the addition of "the relevant Acts and subordinate statutes that add "attached to this decision" to the part of the 19th to 32 through 21th of the 19th of the 19th of the 21th of the 19th of the 19th of the 19th of the 2nd of the 19th of the 2nd of the 19th of the 2nd of the 19th of the 2nd of

C. Determination

1) The reasoning for the court's explanation on this part of the procedural defect assertion is as follows: "The maximum of Eul's major "in the event of an increase in importance" in Section 17 of Section 5 of the first instance court's ruling is as stated in Section 20 of Section 5 "from 20 to 5," which is stated in Section 18 of the fifth instance court's "in the event of an increase in importance, it is so stated in Section 20 as follows: "The maximum of "in the event of an increase in importance, I, II, III, IV, V, V, or a minimum of seven stages at the time of reduction)" of Section 2 of the Civil Procedure Act as stated in Section 20 of the second instance court's judgment, and the court's explanation on this part of Section 4 of the second instance court's judgment and Section 20 of the Civil Procedure Act are as stated in Section 20 of the same Act, with the exception of the grounds for the second instance's decision as stated in Section 20 of the Civil Procedure Act.

B) Regarding the assertion of false entry, such as the statement of acquisition of assets (1)

Article 190-2 (2) and (1) of the former Securities and Exchange Act, the former Enforcement Decree of the Securities and Exchange Act ( February 2009).

4. According to Article 84-8(1)5 of the Addenda to the Enforcement Decree of the Financial Investment Services and Capital Markets Act, a corporation listed on KOSDAQ shall report to the Financial Services Commission the acquisition or transfer of assets equivalent to the value of at least 10/100 of total assets as of the end of the latest business year, i.e., important assets prescribed by the Presidential Decree.

On the other hand, Article 206-11 (5) 1 of the former Securities and Exchange Act provides that "if a KOSDAQ-listed corporation makes a false entry or indication or fails to enter or indicate important matters in making a report under Article 190-2, it shall be subject to a penalty surcharge." As to the limit of the penalty surcharge, the penalty surcharge shall be imposed within the scope not exceeding 2/100 (based on the amount stated in the report document submitted pursuant to Article 190-2) of the total amount of the book value (in the case of transfer or acquisition of business, referring to the amount of acquisition or payment in return for transfer or acquisition) of stocks issued in return for a merger (including a merger after division) or division and the total amount of the debts taken over (in the case of transfer or acquisition of business, referring to the amount of acquisition or payment in return for transfer or acquisition)."

However, in the disposition of this case, the defendant calculated the penalty surcharge that applied the standard of penalty surcharge for violating the duty to report "transfer or acquisition of business" under Article 206-11-5 in relation to false entries such as the above report on acquisition of assets, i.e., acquisition or transfer of important assets. In the case of "acquisition or transfer of important assets", whether the penalty surcharge can be imposed by applying the standard of penalty surcharge for violating the duty to report on "transfer or acquisition of business" as mentioned above.

(2) The legislative process

Article 190-2 (1) of the Securities and Exchange Act prior to the amendment by Act No. 5736 of Feb. 1, 1999 provides that where a stock-listed corporation intends to merge with another corporation, it shall report the matters related to the merger to the Financial Supervisory Commission and the Stock Exchange in accordance with the standards for merger, such as the procedure for the case of merger prescribed by the Presidential Decree, etc.

After the amendment of the Securities and Exchange Act by Act No. 5736 of February 1, 1999, Article 190-2(1) and (2) imposes the duty to report the merger, division, or merger through division, and the acquisition or transfer of important business as prescribed by the Presidential Decree on the stock-listed corporation and the Association-registered corporation, and Article 260-11(5) of the former Securities and Exchange Act provides the basis for imposing penalty surcharges with the same structure and content as that of the former Securities and Exchange Act prior to Article 260-11(5).

28. Following the amendment by Act No. 6423, the limit was set at KRW 2 billion.

After that, as the Securities and Exchange Act was amended by Act No. 7025 on December 31, 2003, Article 190-2(1) provides for the duty to report in cases where a stock-listed corporation or a KOSDAQ-listed corporation intends to merge with another corporation, and Article 190-2(2) provides for the duty to report in cases where a stock-listed corporation or a KOSDAQ-listed corporation falls under any of the following subparagraphs, paragraph (1) shall apply mutatis mutandis in cases where a stock-listed corporation or KOSDAQ-listed corporation intends to acquire or transfer an important business or asset as determined by the President, subparagraph 1, subparagraph 2, or subparagraph 3, or subparagraph 3 of Article 206-1 of the Securities and Exchange Act provides for a new type of report, such as "in cases where it intends to make an all-inclusive exchange or transfer of stocks,"

After that, the said Capital Integration Act (amended by Act No. 8635, Aug. 3, 2007; effective one year and six months after its promulgation) enacted upon the abolition of the Securities and Exchange Act provides that a corporation obligated to submit a business report shall submit a report on material facts to the Financial Services Commission when it resolves to acquire or transfer an important business or asset prescribed by Presidential Decree" under Article 161(1)7, and that a corporation obligated to submit a business report may impose a penalty surcharge up to 10/100 of the daily average transaction amount of the stocks issued by the corporation established on the securities market in the immediately preceding business year (or two billion won if it exceeds two billion won or if it is not traded on the securities market issued by the corporation) if it fails to submit the report or describe or indicate any material fact in Article 429(3).

(3) Determination

For the following reasons, the Plaintiff’s assertion that the disposition of this case is unlawful is without merit, since there is no provision on the imposition of a penalty surcharge, since the administrative law of this case, which provides the basis for the disposition of this case, shall be strictly interpreted and applied, and shall not be excessively expanded or analogically interpreted or analogically interpreted in a direction unfavorable to the party to the administrative disposition, and as long as it does not deviate from the ordinary meaning of the language and text in interpreting the administrative law, it shall not be subject to a teleological interpretation that takes into account the legislative intent and purpose, etc., as long as it does not go beyond the ordinary meaning of the language and text, it is reasonable to interpret the scope of the imposition of a penalty surcharge as possible, to respect the legislative intent and purpose and to the extent that it is new (see, e.g., Supreme Court Decision 200Du596, Sept. 26, 200).

(B) The purport of the Securities and Exchange Act that imposes an obligation to report on an important transaction by a listed company, such as merger, division, or merger through division, acquisition or transfer of important business or assets, and imposes an administrative sanction on an act contrary to the above provision is to facilitate the distribution of securities and protect investors by ensuring that information on financial situation, business contents, etc. of a corporation is provided sufficiently to investors, etc., thereby ensuring the fair issuance, sale, and other transactions of securities.

In addition, the purport of the former Securities and Exchange Act (amended by Act No. 7025, Dec. 31, 2003; Act No. 7025; Act No. 7025, Apr. 12, 198; Act No. 7020, Apr. 12, 2003; Act No. 15554, Apr. 12, 2008; Act No. 15554, Apr. 12, 2008; Act No. 15554, Apr. 12, 2008; Act No. 15554, Jan. 2, 2008; Act No. 15550, Jan. 2, 2005; Act No. 15550, Jan. 1, 200; Act No. 15550, Feb. 3, 2007; Act No. 155550, Jan. 3, 2000).

In addition, the Capital Integration Act enacted upon repeal of the Securities and Exchange Act provides that a corporation obligated to submit a report on material facts under the Presidential Decree shall be subject to the imposition of a penalty surcharge not exceeding 10 billion won (2 billion won in the case of exceeding 2 billion won) of daily average trading prices of the stocks issued by the corporation in the immediately preceding business year, and provides that if the corporation fails to submit the report or makes a false statement or representation of material facts, the corporation may impose a penalty surcharge not exceeding 10/100 of the daily average trading prices of the stocks issued by the corporation (2 billion won in the case of exceeding 2 billion won), the corporation shall be subject to the same punishment as in the case of transfer of material assets. Meanwhile, Article 206-11 (5) of the former Securities and Exchange Act provides that the amount of the penalty surcharge not exceeding 20 billion won shall be paid for the transfer or acquisition of the stocks by transfer, or the amount of the penalty surcharge not exceeding 10/100 of the total amount of the penalty surcharge to be paid for the transfer or acquisition of the stocks.

3 ) 과징금액의 적법 여부가 ) 인정사실 ( 1 ) 원고는 2008. 5. 19. 경 ( 이하 ' 소 ' 라고 한다 ) 의 주식 4만 주 ( 지분100 % ) 를 2의 대표이사 ◆◆◆으로부터 50억 원에 인수하고 그 대금은 원고의 주식을 제3자 배정 방식으로 교부하기로 하되, ◆◆◆이 매각대금으로 받은 주식을 담보로 원고가 30억 원을 대여하기로 하는 주식양수도 계약을 체결하였다. 그러나 원고와 ◆◆◆은 위 주식양수도 계약을 비밀로 하기로 한 다음, 허위로 원고가 소소의 주식을 ◆◆◆ ( 51 %, 20, 400주 ) 과 ㅁㅁㅁ ( 49 %, 19, 600주 ) 으로부터 220억 원에 매수하고 그 대금을 지급하기로 한다는 내용의 주식 및 경영권 양수도 계약서를 작성하였다. 이후 ●●●은 제3자 명의를 빌려 원고의 주식 9, 433, 958주 50억 원 상당을 배정받았다 . ( 2 ) 원고는 2008. 5. 29. ◆◆◆ 외 1인으로부터 주식 4만 주를 220억원에 양수하고자 한다는 내용이 기재된 자산양수 · 도신고서를 금융위원회에 제출하였다 .

(3) In preparing and publicly announcing the financial statements from the 10th quarter (from July 1, 2007 to June 30, 2008) to the 11th quarter (from July 1, 2008 to March 31, 2009) of the 11st quarter (from July 1, 2008 to March 31, 2009), the Plaintiff applied the equity law after overappropriating 17 billion won based on the contract prepared as if the Plaintiff acquired shares of 40,000 won, as seen above, as if he acquired shares of 17 billion won in excess of 2.2 billion won.

(4) In preparing and publicly announcing the financial statements for the 11st quarter (from July 1, 2008 to March 1, 2009), the Plaintiff, despite being aware of the fact that the remaining amount of eight billion won out of the subscription fund for bonds with preemptive rights was not the Plaintiff’s assets due to the reduction of the total amount of the subscription fund for bonds with preemptive rights, has falsely appropriated the equity capital in the 11st quarter for eight billion won by appropriating it in cash and cash assets. (5) The Plaintiff used the financial statements for capital increase with 13.5 billion won in the subscription price on November 17, 2008, including the false financial statements containing 2.2 billion won in the subscription price, and submitted the false financial statements for capital increase with 10.93 billion won in the subscription price on December 2, 2008 to 10.7 billion won in the subscription price on August 19, 2009, and each of the above 200 billion won in the subscription price for new stocks transfer.

[Ground of recognition] Facts without dispute, Eul evidence Nos. 1, 2, Eul evidence Nos. 2 through 8, the purport of the whole pleadings or the whole pleadings

Article 206-12 of the former Securities and Exchange Act and Article 91-6 (6) of the former Enforcement Decree of the Securities and Exchange Act provide that the amount of penalty surcharges for a violation of the Act under the General Rules of the 2. A. The amount of penalty surcharges for a violation of the Act under the General Rules of the 2.1. Article 2.12 of the former Enforcement Decree of the Securities and Exchange Act provides that the amount of penalty surcharges for a violation of the Act shall be calculated first ( = the standard amount to be imposed at law base X base rate) and consideration of the grounds for reduction or exemption thereof. (d) where a violation under Article 206-11 (1) through (5) of the Act occurs twice or more due to the same or same cause (including a case where the financial statements of the violation of Article 206-11 (3) of the Act affect the main sentence of Article 206-13 of the Act), it shall be deemed a single violation, and the basic penalty surcharges for each violation shall be calculated and the largest amount

In full view of the foregoing, the above evidence and the purport of the entire argument in this case, the defendant, applying Article 206-11(1), (4), and (5) of the former Securities and Exchange Act, and Article 429(1) and (3) of the Capital Integration Act to each of the offenses of this case. The defendant calculated the basic penalty surcharge for each offense as stated below, and calculated the basic penalty surcharge for each offense as stated below, and pursuant to Article 2-11(1), (4), (5), and Article 429(1) and (3) of the former Securities and Exchange Act, deeming each

On May 29, 2008, which is the largest amount of basic penalty surcharges among each violation, the imposition of penalty surcharges on false entry in the report on acquisition of assets on May 29, 2008, and the imposition of penalty surcharges of KRW 440 million, which is the basic penalty surcharges, is known. In full view of the contents and degree of the Plaintiff’s violation, the period and recovery thereof, and the contents of the regulations on the business of securities and futures investigation, the instant disposition is lawfully made in accordance with the relevant statutes.

3. Conclusion

If so, the plaintiff's claim of this case seeking its revocation is dismissed on the premise that the disposition of this case is unlawful, and it is unfair in the judgment of the court of first instance with different conclusions. Thus, the plaintiff's appeal is accepted by the defendant and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed. It

Judges Cho Jae-ho

Eaptable punishment

Kim Jae-name

A person shall be appointed.