1. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

(b) Occupational embezzlement; (c) Misappropriation; (d) Misappropriation;

(e) Preparation of qualification-accredited documents;

(g) False entry in the original notarial deed;

(i) Violation of Commercial Act;

Defendant 1 and two others

Defendants

Law Firm Young-jin (Defendant)

Attorney Jeong-sung, Attorney Jeong-sung, Counsel for the plaintiff-appellant

Seoul High Court Decision 2002No2251 Delivered on October 15, 2004

June 2, 2006

All appeals are dismissed.

1. Even if the transfer of shares was made six months after the issuance of share certificates, the transfer takes effect only with the declaration of intention by the party concerned in accordance with the general principle as to the transfer of nominative claim. In such a case, the transferee of shares can solely file a claim for the transfer of shares on the register of shareholders by proving the transfer of shares without the cooperation of the transferor, barring any special circumstance. Thus, even if the transfer of shares is not made on the register of shareholders, the transferee can assert that he is a shareholder against the company without the transfer of shares, and even if the shares are transferred for the purpose of the security of claims and are merely the mortgagee, the relationship with the company is governed by the general principle as to the transfer of nominative claim prior to the issuance of share certificates. However, according to the records, the transferee of shares must notify the non-indicted company of the transfer of shares with the certificate of fixed date or obtain consent from the non-indicted company to the non-indicted 3, as in the case of the transfer of nominative claim before the issuance of share certificates, the same legal principle applies to the transfer of shares under the name of the defendant 24.

Along with the fact that the transfer of shares against the above non-indicted 5 was made, it can be known that the non-indicted 2 notified the non-indicted 1 corporation by the certificate with the fixed date or obtained the consent for the transfer of shares from the non-indicted 1 corporation by such certificate, and that the non-indicted 5 again transferred the above shares to the defendant 1 did not have been notified by the certificate with the fixed date or obtained the consent of the non-indicted 1 corporation. Rather, on behalf of the non-indicted 7, the non-indicted 2 and the non-indicted 3, the non-indicted 2 and the non-indicted 3 notified the non-indicted 1 corporation of the transfer of shares by the certificate with the fixed date. Accordingly, the non-indicted 5 and the non-indicted 1 cannot assert their effect of the transfer of shares against the defendant 3, non-indicted 6, or non-indicted 7. From a different point of view, the judgment of the court below regarding the transfer of shares and the transfer of shares can not be accepted in the grounds for appeal, contrary to the misapprehension of appeal.

2. When the crime of breach of trust causes property damage not only in the case of causing a real damage but also in the case of causing a risk of actual damage to property, and the determination of whether a property damage has occurred or not must be based on the legal judgment in relation to all the property status of the principal (see Supreme Court Decisions 91Do2963 delivered on May 26, 1992; 200Do3716 delivered on June 28, 2002; 2004Do7053 delivered on April 15, 2005, etc.).

According to the records, non-indicted 2, the representative director of the non-indicted 1 corporation, is the creditor, defendant 3.

The right to a license for passenger transport business of Nonindicted Company 1 was transferred to Nonindicted 6, and such transfer of a license for passenger transport business is the same as the transfer or closure of all or part of the business of Nonindicted Company 1, the main purpose of which is the general taxi transport business, so a special resolution of the general meeting of shareholders is necessary (Supreme Court Decision 96Da48 delivered on April 8, 1

The above transfer of passenger transport service license without such special resolution is null and void. Thus, even if the non-indicted 2 transferred the right to passenger transport service license of the non-indicted 1 corporation to the defendant 3 and non-indicted 6, the defendant 2 should actively dispute the claim on the ground of the circumstances that the general meeting of shareholders did not adopt a resolution on the change in the name of passenger transport service license of the non-indicted 8 corporation, the non-indicted 8 corporation's request was accepted on the first date for pleading, although it did not reach the above, separate from the transfer of the non-indicted 2's passenger transport service license, the defendant 2's above recognition and recognition will cause property damage to the non-indicted 1 corporation, which caused loss to the non-indicted 2's passenger transport service license. The ground of appeal No. 2 related to the occurrence of damage cannot be accepted.

The court below's decision is justified in light of the records that Defendant 1 and 2 conspired with Defendant 1 and 2, who was responsible for the operation of the company as the representative director on the register of Nonindicted Co. 1 at the time, violated their business duties and recognized that Nonindicted Co. 8 accepted the claim of Nonindicted Co. 8 and received KRW 600 million from Defendant 3 in return for the claim for change of the name of passenger transport business license filed against Nonindicted Co. 1 Co., Ltd., in violation of their business duties, and accordingly, Defendant 1 and 2 were punished as the crime of taking property in breach of trust, and Defendant 3 was punished as the crime of taking property in breach of trust

3. The court below is just in light of the records and found the defendant 1 guilty of embezzlement while taking full account of the evidence in its explanation while keeping the transportation revenue of the non-indicted 1 corporation on May 31, 199 and KRW 10 million in the deposit account in the name of the defendant, and there is no violation of the rules of evidence or incomplete hearing, etc. as alleged in the ground of appeal No. 3.

4. Therefore, all appeals are dismissed. It is so decided as per Disposition.

Justices Kim Hwang-sik

Justices Lee Hong-hoon

Justices Park Jae-sik

Justices Kim Young-ran