The case holding that where the only representative director of a corporation has made and exercised a document under the name of the company before the new representative director takes office after resignation of the representative director, the preparation of a document for qualification and the execution of such document shall not be constituted.

The case holding that since the Commercial Act allows a stock company to have one or more representative directors (Article 389 (1)), where a vacancy occurs in the representative director prescribed by law or articles of incorporation due to the resignation of the representative director, the former representative director shall maintain the rights and obligations of the representative director until the new representative director takes his office (Articles 389 (3) and 386 (1)), the only representative director of the stock company shall be deemed to have the authority of the representative director of the above company, in case where he prepares and exercises a document under the name of the company before the new representative director takes office after the resignation of his office, and therefore the preparation of qualification document and the crime of uttering are not established.

Articles 232, 234 of the Criminal Act, Articles 386(1), 389(1) and (3) of the Commercial Act

Defendant 1 and one other

United Dong-ho

Attorney Ahn Jong-soo (National Assembly)

Defendant 1 shall be punished by imprisonment with prison labor for eight months and by imprisonment for six months.

With respect to Defendant 1, 20 days under confinement prior to the pronouncement of this judgment shall be included in the above sentence.

However, with respect to Defendant 2, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Of the facts charged in the instant case against Defendant 1, the charge of preparing qualification-based private documents and of exercising qualification-based private documents shall be acquitted respectively.

Punishment of the crime

Defendant 1, from March 23, 2001, operated the above company as the representative director of the non-indicted company from around March 23, 200, and Defendant 2, as the auditor of the above company,

1. The Defendants: (a) filed a complaint from the officers and employees of the above company, such as Kim Young-soo, due to the embezzlement of the construction price of the company at the time when Defendant 1 was in office as the representative director of the above company; and (b) prepared a written consent to change the name of the representative director that dismissed on September 26, 2001; and (c) brought an dispute over the matter of returning the above company to the representative director again; and (d) upon being aware that the above company was scheduled to transfer the office, they did not neglect the office office fixtures used by the officers and employees of the above company; and

around 11:00 on October 28, 2001, the office of the company located in the Dong-dong of Nam-gu Incheon Metropolitan City, the door to the above office key held by Defendant 2, together with five vice-person of this article center by telephone in advance, and 10,831,600 won at the market price of the office of the above company owned by the victim, including 10 telephone units, 11 office units, and 10,831,600 won at the 2.5t vehicle, and the office of the defendant 1 located in Seo-gu, Incheon Metropolitan City was stolen;

2. Defendant 1:

Around August 2001, the amount of KRW 1,200,000 for the wage of six workers, such as the shortest period of absence, was not paid within 14 days from the date of retirement, as shown in the list of crimes in the attached Table, in addition to the fact that at the site of the construction of a commercial building in Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-do, Seoul, the number of which was working from July 2001 to August 2001, and the wage of KRW 6,180,000 for each of the six workers, such as the shortest period of absence, was not paid within 14 days from the date of retirement, without justifiable grounds,

Summary of Evidence

1. Defendant 1’s respective legal statements and the statement of Defendant 2 in the first trial record;

1. Each suspect interrogation protocol of the Defendants in the case of 2002 Godan2371 and the prosecutor's interrogation protocol of Defendant 1 in the case of 2003 Godan7419

1. Each police statement against Kim Jong-su, the nearest, and the present mother;

Application of Statutes

1. Article applicable to criminal facts;

Defendants: Article 331(2) and (1) of the Criminal Act

Defendant 1: Articles 112 and 36 of the Labor Standards Act

1. Aggravation of concurrent crimes;

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

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Code

1. Calculation of the number of detention days before judgment is rendered;

Defendant 1: Article 57 of the Criminal Act

1. Suspension of execution;

Defendant 2: Article 62(1) of the Criminal Act

Division of Non-Offense

1. Summary of the facts charged

The summary of the facts charged as to the defendant 1's preparation of qualification-based private documents and the uttering of qualification-based private documents

The defendant, on September 26, 2001, has resigned from the office of representative director of the non-indicted corporation;

A. On October 15, 2001, at a coffee shop in the Nam-gu Incheon, Nam-gu, Incheon, stating "one representative director of the non-indicted company" in the column for settlement of the settlement without authority for the purpose of exercising the right, and affixing a seal of the above company in advance to the above company's representative director who was holding the above non-indicted company's representative director, and prepares a copy of a statement of settlement, which is a private document concerning the rights and duties, for the qualification of the

B. At the same time and at the same place, the statement of accounts, which is a private document prepared with the recognition of qualification as above, was presented to the user as if it were duly formed."

2. Determination:

At that time, Defendant 1 had no authority as representative director of the above company, and even if Defendant 1 resigned from office on September 26, 2001, the Commercial Act permits a stock company to have one or more representative directors (Article 389(1)), and where there is a vacancy in the representative director under the law or the articles of incorporation due to the resignation of the representative director, the former representative director has to maintain the rights and duties of the representative director until the appointment of the newly appointed representative director (Articles 389(3) and 386(1)). Thus, in order for Defendant 1 to lose the authority as representative director of the above company, the new representative director should have been appointed after resignation. In this case, since there is no data that can be recognized that Defendant 1, who was the only representative director of the above company, was appointed by the board of directors of the above company until the above time of resignation, Defendant 1 still had the authority as representative director of the above company.

3. Conclusion

Therefore, among the facts charged in the instant case, each of the facts charged as to Defendant 1’s preparation of qualification-based private documents and the exercise of qualification-based private documents constitutes a case where there is no evidence to prove that Defendant 1 lost his/her authority as representative director, and thus, it is not guilty under the latter part of Article 325 of the Criminal Procedure Act.

Judges Lee Jong-chul