2018welves Misappropriation 2014

A

Subscriptive (prosecution) and prescribed number of trials

Law Firm B

Attorney C

April 5, 2018

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Facts charged;

【Institution of Sanctions】

After the defendant was elected by the resolution of the general meeting of D clan D (hereinafter referred to as "the clan of this case") around November 15, 200, after he was reappointed as the above general meeting resolution on October 20, 2002, the term of office for the auditor of this case expires on or around 2004 (the expiration of 2005 with the term of office of auditor for 3 years according to the E-laws asserted by the defendant), but there was no resolution of the general meeting for the election of officers, but the resolution for the election of officers including the chairperson was passed on October 14, 2007 and the general meeting resolution of December 20, 209 were both null and void due to the defect in convening the general meeting, and until F is appointed as the chairperson of the general meeting resolution of September 17, 201, the defendant arbitrarily sold the property of this case and made up for the specific purpose of embezzlement, such as embezzlement, in light of the fact that he voluntarily sells the property of this case, and made up for the sale.

Accordingly, the Defendant, as an auditor, filed a lawsuit seeking confirmation of invalidity of the resolution of the general assembly on December 20, 2009 with G called at the Suwon District Court around April 5, 2010, and appointed H as the president of the clan of this case. On November 18, 2010, during the lawsuit, H entered into a contract for selling 54 parcels, both Jin-si and 54 parcels, which are the ownership of the instant clan of this case, at the price of KRW 21 billion (hereinafter referred to as the “instant contract”), with the intention of obtaining KRW 2.1 billion on November 25, 2010 and completing the registration of ownership transfer of the said real estate, and the civil petition of this case was rejected on December 21, 2010 with the purport of obtaining the said registration of ownership transfer on the down payment, and was also invalidated on December 21, 2010.

【Criminal Facts】

From around 204 (or around 2005) to September 17, 2011, the Defendant, as an auditor whose term of office expires as above, was in the position to manage the business of the instant clan for the purpose of the instant clan as a person who has performed the duties of auditor, such as filing a criminal complaint to protect the clan property, filing a civil lawsuit against the resolution of the general assembly, filing a lawsuit against the resolution of the general assembly, auditing the legitimate execution of the clan business and accounting, reporting the result to the general meeting.

The Defendant, upon approaching the buyer of the instant sales contract, expressed to the effect that “the Defendant may actively exercise his/her status and authority as a clan auditor so that the registration of ownership transfer can be made in accordance with the instant sales contract.” In doing so, the Defendant had expressed to the effect that he/she would receive money from the auditor by using his/her duties.

A. On December 2010, the Defendant received an illegal solicitation from the above purchaser I’s pro-friendly K to the effect that “The instant sales contract may be implemented,” the Defendant withdrawn a civil petition with the purport that he/she should not make the registration of transfer along with a written judgment confirming the invalidity of the above resolution of the general assembly, and that he/she shall revoke an appeal against the said judgment seeking the revocation of the said judgment.”

On January 3, 2011, the Defendant prepared a written agreement to the public service center of the Seoul Western District Court in Mapo-gu, Seoul, and to the effect that "K withdraws a civil petition accompanied by a written judgment of 2010 Mahap5864, and the Seoul High Court 2010Na11386, and paid KRW 150,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,

B. On or around 2011, 1, and 26, the Defendant: (a) called a general meeting by taking advantage of the auditor’s position to enable the execution of the instant sales contract; (b) ratified a sales contract by convening a general meeting or elected a new president; and (c) demanded to conclude the same sales contract after selecting a new president, the Defendant received KRW 100 million in return for expenses, etc. necessary for convening a general meeting, from which he received KRW 50 million from among them to his own account.

Accordingly, the defendant acquired a total of KRW 200 million from K in return for an illegal solicitation on two occasions in relation to his duties.

2. Determination

Considering the following circumstances, the evidence submitted by the prosecutor alone is that the defendant was in the position of auditor at the time of the instant solicitation and acceptance of money or valuables in relation to the audit’s business

It is difficult to recognize it as being.

① It is true that, as a matter of course, a director or auditor whose term of office expires is not assigned with the comprehensive status of director, etc., and whether it is necessary to perform his duties in order to resolve imminent circumstances (see Supreme Court Decision 96Da37206, Dec. 10, 1996). It is true that the defendant, as a clan auditor of this case, filed a lawsuit claiming that he is the auditor of the clan of this case since the term of office of the defendant expired from 2004 to 2005, and had the defendant convened a general meeting, etc., claiming that he is the auditor of the clan of this case from the expiration of the term of office of the defendant to the time when he received money and valuables. However, there is no evidence that there was a need for the defendant to perform urgent duties as an auditor, or that the defendant actually reported the audit at the general meeting of the clan of this case, or that such audit is justified.

② Article 8 of the Rules of this case provides that one auditor shall be appointed for the clan, Article 9 provides that "the matters concerning the acquisition and sale of property" shall be audited and reported to the general meeting with respect to the audit's duties, Article 14 provides that "the matters concerning the acquisition and sale of property" shall be referred to as "the matters concerning the acquisition and sale of property" in relation to the functions of the general meeting, and subparagraph 3 of Article 14 provides that "the matters concerning the financial management and settlement of accounts" shall be referred to as "the matters concerning the financial management and the settlement of accounts" and "the matters concerning the financial management and the settlement of accounts" of Article 14 subparagraph 3 concerning the functions of the general meeting, and it is difficult to view that "the matters concerning the acquisition and sale of property" in subparagraph 2 of the same Article are included in the scope of the audit's duties, so that I and K may not be deemed to have been involved in the duties of the auditor of this case.

③ Moreover, the instant clan members, including M, filed an application with the Suwon District Court 2010Kahap75 against H elected by the president for the suspension of the performance of duties of the president and the provisional disposition to appoint an acting president, and the court decided on May 19, 2010 to suspend H’s performance of duties as the president and decided on June 7, 2010 to appoint attorneys N as the president of the instant clan, and had an acting representative appointed by the court at the time of the instant request. Thus, the Defendant did not consult with the acting representative or obtain approval from the court while engaging in the litigation concerning the instant clan or convening a general meeting.

④ Although I and K had been well aware of the appointment of acting directors at the court at the time, there was no effort to confirm the position of acting directors in relation to the instant sales contract, and there was only a solicitation to some members of the clan including the Defendant to provide money and valuables and to convene a general assembly for ratification of the sales contract or the implementation of the sales contract, the Defendant does not seem to have been expected to assist them by using the authority of audit and inspection, but only the Defendant tried to acquire the clan property by unlawful means through several clans that seem to have influence within the instant clans.

3. Conclusion

If so, the facts charged in this case constitute a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and a summary of the judgment is publicly announced under Article 58

The presiding judge; and

Awards and Decorations for Judges

Judges Lee Jong-deok