[1] The specific degree of the facts charged

[2] The case holding that even if the date and time of the crime of the securities aiding and abetting the bill of indictment stated "from the beginning of 2000 to the around of March 2003, it cannot be deemed that the facts charged are unspecified

[3] Whether Article 628 (1) of the Commercial Act is established in a case where the substance of issuance of new shares cannot be deemed to exist (negative)

[4] The case reversing the judgment of conviction on the ground that there is room to view that there is no substantial substance of issuing new shares due to the procedural and substantive defect of issuing new shares, in case where the majority of shareholders who held the forged share certificates even though they were not shareholders and the shareholders held at the general meeting of shareholders are newly appointed and new shares have been issued by the resolution of the board of directors comprised of such directors

[1] The facts charged must be stated clearly by specifying the time, date, place, and method of a crime (Article 254(4) of the Criminal Procedure Act), and the purport of the law demanding the specification of the facts charged is to facilitate the defendant's exercise of his/her right to defense. As such, the facts charged is sufficient if the facts constituting the crime are stated to the extent that it is recognizable from other facts by comprehensively taking account of these elements, and even if the date, place, etc. of the crime are not explicitly stated in the indictment, if the general indication is inevitable in light of the nature of the crime charged, and it does not interfere with the defendant's exercise of his/her right to defense, the contents of the indictment cannot be deemed as not being specified

[2] The case affirming the judgment of the court below which held that the crime of forging documents is relatively long-term since the defendants did not confession the crime, since it is difficult to ascertain where the documents were forged at any time and the date and time of the crime is difficult to be specified as a certain point, the date and time of the crime under the charge of aiding and abetting Securities shall be indicated as "from early 2000 to March 2003," and it cannot be viewed as being unspecified in the facts charged.

[3] The crime of provisional payment under Article 628 (1) of the Commercial Act intends to regulate the acts that harm the intent of the law that intends to lose capital of the company. In the event that the company's procedural and substantive defect in issuing new shares is extremely serious in the course of capital increase by issuing new shares, that is, the company cannot be deemed to have the substance of issuing new shares and that there is only the absence of the so-called issuance of new shares, such as the case of registration of change due to the issuance of new shares, and that there is only the case of registration of change due to the issuance of new shares, there is no effect of issuing new shares from the beginning, nor the obligation of the underwriters for paying new shares does not occur, and there is no problem of loyalty due to capital increase.

[4] The case reversing the judgment of conviction on the ground that there is room to view that there is no substantial substance of issuing new shares due to the procedural and substantive defect of issuing new shares, in case where the majority of shareholders who are not shareholders and owned the forged share certificates attended and the shareholders' general meeting held are newly appointed at the shareholders' meeting, and the issuance of new shares was made by a resolution of the board of directors comprised of such directors, and there is a extremely serious reason to view

[1] Article 254 (4) of the Criminal Procedure Act / [2] Article 254 (4) of the Criminal Procedure Act / [3] Article 628 (1) of the Commercial Act / [4] Article 628 (1) of the Commercial Act

[1] Supreme Court Decision 94Do1680 delivered on December 9, 1994 (Gong1995Sang, 531) Supreme Court Decision 2002Do2939 Delivered on October 11, 2002 (Gong2002Ha, 2778) Supreme Court Decision 2004Do1164 Delivered on November 10, 2005 (Gong2005Ha, 193)

Defendant 1 and one other

Defendants

Law Firm Jeong-sung, Attorney Seo Sung-sung et al.

Seoul Central District Court Decision 2004No3545 Decided December 8, 2005

The judgment below is reversed, and the case is remanded to Seoul Central District Court Panel Division.

1. Judgment on the misconception of facts as to the forgery of securities and the exercise of forged securities

In light of the records, the court below's finding the defendants guilty of the charge of the forgery of securities and the exercise of forged securities based on the adopted evidence is justified, and there is no violation of the rules of evidence against the rules of evidence.

2. Determination on the unspecified assertion of the facts charged as to the violation of securities fraud

The facts charged must be stated clearly by specifying the time, date, place, and method of a crime (Article 254(4) of the Criminal Procedure Act), and the purport of the law requiring the specification of the facts charged is to facilitate the exercise of the defendant’s right to defense. As such, the facts charged is sufficient if it is stated to the extent that the facts constituting the elements of a crime can be identified by integrating these elements, and even if the date, time, place, etc. of a crime are not explicitly stated in the indictment, if the general indication is inevitable in light of the nature of the crime charged, and if it does not interfere with the defendant’s right to defense, the contents of the indictment cannot be deemed not to be specified (see Supreme Court Decisions 94Do1680, Dec. 9, 1994; 2002Do2939, Oct. 11, 2002).

Examining the facts charged in light of the legal principles as seen earlier and the records of this case, the prosecutor stated the date and time of the crime charged with respect to the act of securities infringement as “from the beginning of 2000 to the around March 2003” and entered the date and time of the crime in question for a relatively long period. However, insofar as the Defendants did not confession the crime, it is difficult to ascertain where the document was forged, and even in this case, it was difficult to specify the date and time of the crime in question at a certain time, and there was no choice but to clearly indicate the Defendants’ right to defense. The issue in this case, in consultation with Nonindicted 1 in 1996, in which the Defendants participated in the issuance of the share certificates and continued to keep them after the issuance of the share certificates and kept them on custody on March 203, which was partially delivered to Nonindicted 2 and Nonindicted 3, the issue in this case is whether the above share certificates were lawfully issued at the time of capital increase in around 1996 or whether they were forged at the same time as the facts charged, and thus it cannot be accepted.

3. Judgment as to the misapprehension of the legal principle as to the fraudulent entry in the authentic deed and the exercise of the authentic deed original

In light of the records, it is proper that the court below found the defendants guilty of this part of the facts charged against the defendants based on the adopted evidence, and there is no error of law by misunderstanding legal principles.

4. As to the crime of soliciting payment under the Commercial Act

In accordance with the adopted evidence, the court below found the Defendants guilty of this part of the charges that: (a) in collusion with the Defendants, Nonindicted Co. 4 (hereinafter “Nonindicted Co. 4”) did not intend to pay the capital even if the capital was increased from KRW 1.8 billion to KRW 3.3 billion; (b) in order to obtain a certificate of custody of the stock price necessary to register as if the capital was increased, the Defendants borrowed KRW 1.5 billion to the nominal bondholder; and (c) as if the Defendants paid the stock price, the Defendants were issued a certificate of custody of the said money by depositing the said money with the bank; and (d) withdrawn the deposited KRW 1.5 billion and pretended the payment

However, it is difficult to accept such judgment of the court below for the following reasons.

Article 628 (1) of the Commercial Act regulates acts that undermine the purpose of the law that intends to lose the company's capital. Thus, if a company's procedural and substantive defect in issuing new stocks is extremely serious in issuing new stocks, that is, the substance of issuing new stocks cannot be deemed to exist, and the absence of so-called issuance of new stocks exists, such as the case of registration of change due to the issuance of new stocks, and only the case of registration of change due to the issuance of new stocks, the existence of the substance of issuing new stocks shall not be deemed to exist, and there is no validity of issuing new stocks from the beginning, and there is no duty of paying new stocks by subscribers to pay new stocks, and there is no problem of the balance of capital due to the increase

However, according to the register of non-indicted 4 on December 31, 2002, which appears to have no change until the time a temporary general meeting of shareholders was held on or around August 8, 2003, the non-indicted 3 did not own shares of 360,000 shares, and only the non-indicted 1 did not reach the majority of the shares issued. The non-indicted 1 delegated the authority to conduct all the business related to the convocation of the temporary general meeting of shareholders under the above decision to the non-indicted 3 upon the court's decision to permit the convocation of the temporary general meeting of shareholders. Non-indicted 3 delegated the authority to conduct all the business related to the convocation of the above decision to the non-indicted 4 at the time of the non-indicted 4's general meeting of shareholders; the non-indicted 10:00 on August 8, 200, the non-indicted 200 on the non-indicted 3's general meeting of shareholders at the pre-indicted 4's new meeting of shareholders; the non-indicted 3's new shares;

Therefore, it is reasonable to view that the issuance of new shares in this case constitutes the absence of so-called issuance of new shares as a resolution by the board of directors comprised of the directors newly appointed at the general meeting of shareholders held by the majority of shareholders, even though there are not shareholders, and the procedural and substantive defects of the issuance of new shares are extremely serious. Therefore, the court below should further examine whether the issuance of new shares in this case does not have the effect of the issuance of new shares from the beginning, and whether there is no obligation of the underwriter to pay new shares under the Commercial Act after examining whether the issuance of new shares in this case does not exist

Nevertheless, the lower court, which found a person guilty without doing so, failed to exhaust all necessary deliberations or erred by misapprehending the legal doctrine as to the crime of soliciting payment under the Commercial Act, thereby adversely affecting the conclusion of the judgment. Therefore, the allegation in the grounds of appeal on

Therefore, without examining the remaining grounds of appeal as to the intent of the principal of the payment place by the Defendants, all the remaining crimes of the Defendants, which are judged to be concurrent crimes under the former part of Article 37 of the Criminal Act, shall not be reversed.

5. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)