Defendant

Prosecutor

Kim Sung-mun

Attorney Span-place

Seoul Central District Court Decision 2007Ma1834 Decided July 10, 2008

The prosecutor's appeal is dismissed.

The summary of the judgment of innocence against the accused shall be published.

1. Summary of the grounds for appeal (the mistake of facts and misapprehension of legal principles);

A. The point of occupational embezzlement

In light of Nonindicted 4 and 5’s investigative agencies and each statement at the court of the lower court, each passbook and deposit slip, etc., the lower court found the Defendant not guilty of this part of the facts charged, but erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

B. The fact that the original of the notarial deed was falsely recorded and the original of the notarial deed was exercised.

In fact, the Defendant did not hold a general meeting of shareholders and prepared documents, such as the minutes of the general meeting of shareholders, and completed the registration of change of the audit. Even if such a general meeting of shareholders was held, the Defendant did not have any intention to exclude three shareholders, including Nonindicted 4, etc., and passed a resolution to appoint Nonindicted 1 as an auditor by holding a general meeting of shareholders, and thus, such resolution shall be deemed null and void or nonexistent. Therefore, the completion of the registration of change is deemed to constitute the crime of false entry in the authentic copy of the authentic deed and the crime of the exercise of the authentic copy of the authentic deed, but all of the judgment below which acquitted

2. Determination:

A. As to occupational embezzlement

(1) First of all, this part of the facts charged is divided into the following: ① the Defendant, as the representative director of the Nonindicted Co., Ltd., who manages the corporate fund, arbitrarily transferred the corporate fund deposited in the corporate account into a common deposit passbook or a Maspbook and embezzled it; ② embezzlement of the remaining money after deducting the due amount from the corporate account’s nominal name among the money transferred from the corporate account to Nonindicted Co. 6, the Defendant’s address, and ③ embezzlement using part of the corporate fund deposited and managed in the Maspbook as an individual’s personal use.

(2) The intent of unlawful acquisition in the crime of occupational embezzlement refers to the intent of disposing of another person's property in violation of his/her duties for the purpose of pursuing the benefit of himself/herself or a third party, such as the possession of his/her own property, and the fact that there is an act of embezzlement as an act of realizing the intent of unlawful acquisition requires a prosecutor to prove that there is an act of embezzlement. The proof is based on strict evidence with probative value, which causes a judge to have no reasonable doubt. If there is no such evidence, even if there is suspicion of guilt against the defendant, it shall be determined as the defendant's interest (see, e.g., Supreme Court Decision 97Do1962, Feb. 13, 198).

A) First of all, according to the evidence duly adopted and examined by the court below, the defendant's transfer of the company fund to the ordinary deposit passbook or the Maspbook in the name of the defendant in the corporate deposit passbook (the part of paragraphs (a), (b), and (e) of Article 1), and the evidence duly adopted and examined by the court below, the defendant had the corporate deposit passbook opened in the name of the non-indicted corporation, but on the other hand, he deposited and operated the company fund in the ordinary deposit passbook or the Maspbook in the name of the defendant and non-indicted 6, etc., on the other hand, on the other hand, but the fact that the company fund was stored or withdrawn by mixing the company fund without any special distinction through the account transfer. Thus, it is insufficient to recognize that the defendant's transfer of the company fund between the statements and the documents submitted by him was not in the process of managing and operating the company fund, but it was not in the process of performing the illegal acquisition intent, and there is no evidence

B) Next, the Defendant’s remaining money transferred from the corporate passbook to the passbook or the passbook with Nonindicted 6, after deducting the amount under the name of a legitimate provisional collection system, shall be deemed as follows (the part of the indictment No. 1-A, b, d, e, and f).

If the defendant does not properly explain his whereabouts or place of use of the money which the defendant had been in custody as entrusted, the defendant can be presumed to have embezzled the money by voluntary consumption. However, if the defendant explained the whereabouts or place of use for reasons for which it is difficult to recognize the existence of the defendant's intent of unlawful acquisition of money without such explanation, and if there are materials corresponding thereto, the defendant cannot be deemed to have withdrawn the money entrusted without permission for unlawful acquisition of money and embezzled the money with his intent of unlawful acquisition of money (see, e.g., Supreme Court Decision 94Do98, Sept. 9, 194). In light of the general deposit passbook or marina passbook, the defendant used the company fund deposited in the non-indicted corporation for the purpose of using it with a credit card in the name of the non-indicted corporation or withdrawn it for a double payment system, and there is no reasonable doubt that the defendant voluntarily submitted a separate statement of the cash or the amount of money deposited in his own account with the non-indicted corporation's personal credit card, etc., and then submitted a separate statement or evidence consistent with this.

C) Lastly, the defendant transferred from the corporate passbook to non-indicted 6 passbook, etc., but did not return the money (the part of the charge No. 1-C).

In light of the fact that the representative director, who has personal claims against the company, uses the money in his own possession for the repayment of his bonds does not constitute an act of self-transaction in conflict with the interests of the company and directors, so even if the representative director pays his bonds to the company without going through a procedure such as approval by the board of directors, it is valid as the act of performing the company's obligations within the representative director's authority and thus, it cannot be held liable for the crime of embezzlement as it is not recognized (see Supreme Court Decision 2001Do5459, Jul. 26, 2002, etc.). In full view of the evidence duly adopted and examined by the court below, the defendant can be found to have lent a considerable amount of money to the company under the pretext of provisional deposits. In light of the fact that such fact is confirmed to the extent of considerable amount of money deposited and collected by the cash ledger prepared and arranged by the tax accountant or by the president of the bank account, each statement of the non-indicted 4 and 5 or materials submitted by him, the defendant's money deposited and there is no reasonable doubt or evidence that the above deposit money deposited.

(3) Of course, according to the records, it is true that there is a doubt that the defendant operates the company of this case on a small scale of the defendant, in mixing the company funds with the passbook in order to withdraw the company funds in the form of mind, and whether it is not useful for the personal purpose of the company funds by the representative director's deposit and reflect, etc.

However, the finding of guilt ought to be based on evidence with probative value, which leads a judge to have a conviction that the facts charged are true beyond a reasonable doubt (Article 307(1) and (2) of the Criminal Procedure Act). Therefore, in this case where there is no such evidence in light of the facts acknowledged earlier, even if there is no suspicion of guilt against the defendant, it is inevitable to determine it as the benefit of the defendant.

Therefore, the lower court that acquitted the Defendant of this part of the facts charged is justifiable, and it did not err by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the judgment.

B. As to the fraudulent entry in the authentic deed and the use of the authentic deed original

(1) Summary of the facts charged

The summary of this part of the facts charged is that Nonindicted 5 owns 1.5% (4,600 shares) and 16.5% (6,600 shares) of the auditor with respect to the shares of Nonindicted 5 (40,00 shares) and Nonindicted 4, who is a director, on the other hand, the Defendant, who is the representative director, owns 35% (14,00 shares), Nonindicted 3 (4,00 shares), Nonindicted 7 (6,80 shares), and Nonindicted 8 (4,00 shares) were collected from Nonindicted 5’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company registry’s company’s company’s company registry’s company’s company registry’s company’s company registry’s company’s company registry’s company’s company registry’s company’s company registry’s company’s company registry’s general meeting’s company’s company’s general meeting’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s company’s 20.

(2) Even if the facts stated in the original of a notarial deed exist in appearance, if there is any defect corresponding to the invalidation or absence thereof, such statement shall be considered to constitute a false entry, but if it is objectively existing and there is only a defect corresponding to the reason for revocation, the statement does not constitute a crime of false entry in the original of a notarial deed, unless it is stated in the original copy of the notarial deed (see Supreme Court Decision 93Do698 delivered on September 10, 1993, etc.).

According to the evidence duly adopted and examined by the court below, the defendant, as the person holding the ordinary shareholders' meeting, issued a notice to convene the ordinary shareholders' meeting on February 8, 2006 and held the ordinary shareholders' meeting on February 8, 2006, and the above regular shareholders' meeting passed a resolution to appoint non-indicted 1 as new auditors upon the expiration of the term of office of non-indicted 5 at the previous ordinary shareholders' meeting. Thus, as long as the regular shareholders' meeting was held in fact and the above resolution was adopted, the notice to convene a regular shareholders' meeting was not given to some shareholders and the other shareholders did not comply with the convocation method prescribed by the articles of incorporation, etc., or even if the resolution did not meet the quorum prescribed by the articles of incorporation, the defect in the convocation procedure or resolution method of the general shareholders' meeting is merely the cause for revocation of the resolution of the general shareholders' meeting, and only by itself, it cannot be deemed that there was no error in the misapprehension of legal principles as to the above legal principles as to the omission or omission of the resolution.

3. Conclusion

Therefore, since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, and it is so decided as per Disposition with the decision to disclose the summary of this decision in accordance with Article 58 (2) of the Criminal Act.

Judges Noh Sung (Presiding Judge)