[1] Whether the intent of unlawful acquisition is recognized even if the person who committed the embezzlement intends to return, reimburse, or preserve the embezzled property after the fact (affirmative), and whether the situation where the person who committed the embezzlement had a separate monetary claim against the owner of the goods affects the crime of occupational embezzlement already established (negative in principle)

[2] Whether the resolution of the temporary general meeting of shareholders by all shareholders attending the meeting is valid even though the resolution of the board of directors required by Acts and subordinate statutes and the articles of incorporation was made without a resolution or convocation procedure required by Acts and subordinate statutes, and whether the registration by the resolution is a registration stating false matters

[1] Articles 355(1) and 356 of the Criminal Act / [2] Articles 228(1) and 229 of the Criminal Act; Articles 362, 365, 376, and 380 of the Commercial Act

[1] Supreme Court Decision 201Do14247 Decided January 27, 2012, Supreme Court Decision 2010Do9871 Decided June 14, 2012 / [2] Supreme Court Decision 2000Da6927 Decided December 24, 2002 (Gong2003Sang, 435) Supreme Court Decision 2008Do1044 Decided June 26, 2008 (Gong2008Ha, 1100)

Defendant

Defendant

Law Firm Cheonglim et al.

Seoul High Court Decision 2013No1946 decided December 5, 2013

The guilty portion of the judgment below is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In the crime of occupational embezzlement, the intent of illegal acquisition in the crime of occupational embezzlement refers to the intent to dispose of another person's property in violation of his/her duties for the purpose of pursuing his/her own or a third party's interest as if it were his/her own property, and the intention to return, compensate or preserve it later cannot be deemed to have no intention of unlawful acquisition on the ground that there was an intention to acquire it later. In addition, the crime of occupational embezzlement is established when the intent of unlawful acquisition was explicitly indicated externally. Thus, even if a person who committed the crime of occupational embezzlement has a separate monetary claim against the owner of an article, barring special circumstances, such circumstance alone may not affect the crime of occupational embezzlement already established (see Supreme Court Decision 2010Do9871, Jun. 14, 2012, etc.).

The lower court affirmed the first instance judgment that found the Defendant guilty of the crime of occupational embezzlement, on the grounds the following grounds: (a) the Defendant received KRW 250 million from the corporate account of Nonindicted Co. 2 to transfer USD 200,000 to the Defendant’s personal account for personal transfer of USD 2,50,000,000,000 from the said corporate account; and (b) the said company obtained a false internal resolution as if the Defendant leased the office from November 20, 2009 to November 19, 2010; and (c) managed the said company’s funds KRW 250,000,000 from November 20, 209 to November 19, 2010.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted by the first instance court, the lower court’s determination is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the criminal intent of occupational embezzlement or intent of unlawful acquisition, contrary to what is alleged in the grounds

The precedents pointed out in the grounds of appeal are different from those of this case and thus are inappropriate to be invoked in this case, or are not affected by this decision.

2. Regarding ground of appeal No. 2

Even if a special general meeting of shareholders of a corporation was conducted without a resolution or a convocation procedure of the board of directors required by Acts and subordinate statutes and the articles of incorporation, if all shareholders agree to hold the general meeting and without any objection, the resolution is valid unless there are special circumstances, and the registration following the resolution is consistent with the substantive relations, and it cannot be deemed as a registration stating false matters (see Supreme Court Decision 2000Da6927, Dec. 24, 2002, etc.).

According to the reasoning of the judgment below, the court below found the defendant guilty of this part of the facts charged on the ground that each registration recorded in the facts charged falls under the registration of false entry, and found the defendant guilty of this part of the charges, considering that the defendant owned 6.35% of the remaining 33.65% of the shares of the non-indicted 2 corporation in his own name and the remaining 33.65% of the shares of the non-indicted 4, and thus the ownership of the shares of the above company was substantially distributed. Nevertheless, without going through the actual convocation procedure and resolution, the defendant prepared a false minutes of the temporary shareholders' meeting as if the above shareholders were the defendant 1

However, we cannot accept this part of the judgment of the court below for the following reasons.

According to the evidence and records duly adopted by the court below and the court of first instance, the defendant held a general meeting of shareholders as a single shareholder of the above company and dismissed the auditor, appointed the non-indicted 6 as a new auditor on September 17, 2009, and made a resolution to appoint the non-indicted 7 and the non-indicted 1 as an internal director on October 23, 2009. Accordingly, the minutes of each temporary general meeting of shareholders were prepared, and the above company had a change in the audit and the appointment of directors registered accordingly. At the time of each registration, the defendant and the non-indicted 3 owned all of the shares. At the time of the above registration, the defendant and the non-indicted 3 were close to the same residential area. The decision of the above company was made simply with the agreement between the defendant and the non-indicted 3 after its incorporation. The defendant asserted that the non-indicted 3 had been informed of the above change in the audit and appointment of directors in advance since its investigation agency, and that the director of the above non-indicted 3 was newly appointed until the date.

According to the above facts, if the defendant dismissed the existing auditor with the delegation or consent of Non-Indicted 3 and decided to appoint new auditors and directors, and prepared the minutes of the general meeting of shareholders with the delegation or consent of other shareholders, and as such, if the minutes of the general meeting of shareholders were prepared as to the change of the auditor and appointment of directors with the above consent of other shareholders in the stock company with two shareholders, it may be deemed that there was a valid resolution according to the intention of all shareholders even if it did not go through legitimate procedures for convening the general meeting of shareholders and did not actually hold the general meeting of shareholders (see, e.g., Supreme Court Decision 2008Do1044, Jun. 26, 2008). Each registration listed in this part of the facts charged is consistent with the substantive relationship, and thus it cannot be deemed a

Therefore, in light of the above circumstances, the lower court should further examine whether Nonindicted 3’s delegation or consent was made with respect to the foregoing change of auditors and the appointment of directors, and determine whether each registration recorded in this part of the facts charged is consistent with the substantive relations. However, the lower court found the Defendant guilty on the ground that each registration recorded in this part of the facts charged falls under a false registration for the same reason as stated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the establishment of a crime of false entry in public electromagnetic records, etc.

3. Conclusion

As seen above, the crime of occupational embezzlement, which the court below found guilty, has a ground for reversal as to the inclusion in the public electronic records, etc. and the exercise of the public electronic records, etc. among the judgment below, and the crime of occupational embezzlement, which the court below found guilty, shall be sentenced to a single punishment in relation to concurrent crimes under the former part of Article

Therefore, without further proceeding to decide on the remaining grounds of appeal by the defendant, the guilty portion of the judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Shin (Presiding Justice)