[1] Whether a crime of false entry in the original notarial deed is established in a case where there is a defect falling under the grounds for revocation in the entries in the original notarial deed (negative)

[2] The case holding that it does not constitute a crime of false entry in the authentic copy of a notarial deed that a change of audit under a resolution of the general meeting of shareholders was made before the cancellation because the defect in the convocation procedure of the general meeting

[1] Even if the facts stated in the original of a notarial deed exist in appearance, if there is any defect falling under the nullity or non-existence thereof, such entry constitutes a false entry. However, if it is objectively existing and there is a defect falling under the cause of revocation, and if there is only a defect falling under the cause of revocation, the statement does not constitute a crime of false entry in the original of a notarial deed, unless it is

[2] The case holding that it does not constitute a crime of false entry in the authentic copy of a notarial deed, where a change of audit under a resolution of the general meeting of shareholders was made before the cancellation because the defect in the convocation procedure of the general meeting

[1] Article 228(1) of the Criminal Act / [2] Article 228(1) of the Criminal Act, Article 380 of the Commercial Act

[1] Supreme Court Decision 93Do698 delivered on September 10, 1993 (Gong1993Ha, 2835)

Defendant

Prosecutor

Attorney Span-place

Seoul Central District Court Decision 2008No2469 Decided October 22, 2008

The appeal is dismissed.

The grounds of appeal are examined.

Even if the facts stated in the original of a notarial deed exist in appearance, if there is any defect falling under the nullity or non-existence thereof, such entry shall be deemed to fall under the false entry. However, if it is objectively existing and there is any defect falling under the cause of revocation, and if there is only a defect falling under the cause of revocation, such entry does not constitute an offense of false entry in the original of a notarial deed, unless it is stated in the original copy before it is revoked (see Supreme Court Decision 93Do698 delivered

For the reasons indicated in its reasoning, the lower court affirmed the first instance judgment that acquitted Nonindicted Co., Ltd. of the facts charged on the ground that: (a) the ordinary general meeting of shareholders held on February 8, 2006 and the resolution on the appointment of auditors was passed; and (b) the defect in the convening procedure of the general meeting of shareholders stated in the facts charged was merely a cause for revocation of

The above determination by the court below is justifiable in light of the record, which is based on the legal principles as seen earlier. The court below did not err in the misapprehension of the rules of evidence and the misapprehension of legal principles as to the grounds for existence

In addition, the prosecutor asserts that there exist grounds for existence of a resolution because Nonindicted 1 and 2, who was recognized by the court below as a shareholder other than the defendant at the time of the above general meeting of shareholders, did not obtain the approval of the board of directors required by the articles of incorporation in relation to the transfer of shares, and eventually, they did not reach 35% of the shares among the shareholders. However, according to the facts charged in this case, even if according to the facts charged in this case, the shares held by the defendant at the time were reached 35%, and Nonindicted 3, etc. who transferred shares to Nonindicted 1, etc., who merely lent the name of the defendant to the defendant and was present at the above general

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)