Suwon District Court 2006Guhap9031 (Law No. 8, 2008)

Examination Income 2006-0119 (Law No. 7.25, 2006)

Where there is no reason to deem that a corporation has ratified the embezzlement amount of officers and employees, it does not constitute an outflow from the company.

As the representative director holds 56% or more of the shares of a minority shareholder during the period of embezzlement, it is difficult to see that the representative director's intent is identical to the corporation's intent or economic interests are substantially consistent, and that the commencement of the exercise of rights, such as compensation for damages, etc. from the time when he/she becomes aware of the embezzlement, it cannot be deemed that

The contents of the decision shall be the same as attached.

1. Revocation of a judgment of the first instance;

2. The defendant's disposition of notice of change in the amount of income as to the amount of 12,522,63,562 won of earned income for the year 2003 dated June 15, 2005 against the plaintiff and the disposition of imposition of 4,839,902,439 won of earned income for the year 2003 as of August 22, 2005 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. From September 13, 2002 to March 26, 2004, Nonparty 1 embezzled the Plaintiff’s funds of KRW 12,522,63,562 (hereinafter “the instant embezzlement money”) between January 1, 2003 and December 31, 2004, Nonparty 2, who held office as the representative director of the Plaintiff. Nonparty 1 embezzled the Plaintiff’s funds from January 1, 2003 to January 1, 2004, and the Plaintiff fled the instant embezzlement money to a foreign country on January 1, 2004. Accordingly, the Plaintiff treated the instant embezzlement money as “other special losses,” but adjusted it to “non-deductible reservation.”

B. The Defendant included the instant embezzlement in the calculation of earnings, disposed of as bonus to ○○○○, and notified the Plaintiff on June 15, 2005 of the change in income amount of KRW 12,522,63,562 as earned income for the year 2003. On September 21, 2005, the Plaintiff imposed withholding income tax of KRW 5,070,373,980 as a result of the notice of change in income amount, but reduced or corrected working income tax of KRW 4,839,902,439 on September 21, 2005 (the above notice of change in income amount and the disposition of imposition on August 22, 2005 referred to as “each of the instant dispositions”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1, 2, Eul evidence Nos. 3 and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Each disposition of this case is premised on the fact that the embezzlement of this case was out of the company from the plaintiff and belongs to ○○○. However, when an employee or employee of the company embezzled the company's assets, the victim company has the right to claim damages against the embezzled person. Thus, in principle, the company's assets are reserved in the company as a matter of principle. In exceptional cases where the company's prior or ex post embezzlement is objectively expressed its intent not to recover the claim for damages, such as implied or waiver of the collection of claims, the company's prior or ex post embezzlement, it shall be deemed that the company can be treated as the outflow from the company and dispose of it as a bonus to the person. In this case, in light of the fact that ○○ was actually an employee, after the plaintiff became aware of the above embezzlement, the company filed a complaint with ○○○ as the suspicion of occupational embezzlement, and clearly expressed its intent not to recover claims, each disposition of this case is unlawful.

Article 106 (1) 1 (b) of the Enforcement Decree of the Luxembourg, in the event that the representative director embezzled a corporation’s funds, the said embezzled money is disposed of as a bonus to the representative director and the income tax is imposed on the corporation, the victim of the embezzlement crime, by imposing the income not included in the earned income prescribed in Article 20 of the Income Tax Act. This is a violation of the principle of no taxation without the law since the income tax is deemed as earned income and imposed it by analogy and expansion of the contents prescribed by the law without the delegation of the mother law. Furthermore, each of the dispositions of this case based on this is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

Unless there are special circumstances, the act of the representative director, etc., who is the actual manager of a corporation uses the corporation's funds on the premise of recovery at the beginning, and thus, it constitutes an outflow from the company as an expenditure itself. As to special circumstances that cannot be viewed as not premised on recovery from the utilization time, it shall be determined individually and specifically by taking into account all the circumstances, such as the actual status within the corporation of the representative director, etc., the subject of embezzlement, the degree of control over the corporation, the circumstances leading to the embezzlement, and the measures taken by the corporation after embezzlement, etc., where the intent of the representative director, etc. is identical to the intent of the corporation of the corporation or where it is difficult to see that the economic interests of the corporation with the representative director, etc. are in fact identical, and such special circumstances must be proved by the corporation asserting it (see Supreme Court Decision 2007Du23323, Nov.

In light of the above legal principles, the Plaintiff’s ○○○○○○○○○○○○○○ Foundation’s Embezzlement 1, 2, and 5-1, 10, 11, 13-2, and 6-1, 7-2, and the Plaintiff’s testimony at the lower court’s ○○○○○○○○○○○○○○○○○○○○○○ Company’s 6-2, supra, did not appear to have been aware of the Plaintiff’s 6-2, 17.8% of the Plaintiff’s shares issued on October 17, 200, based on the following circumstances: (a) the Plaintiff’s 1,120, 1200 shares out of the Plaintiff’s 6-2’s 0-2, supra, was deemed to have been aware of the fact that the 2-2, 3-1, and 3-1,000 shares of the Plaintiff’s 6-2, supra; and (b) the Plaintiff’s 2-1, 3-2,013.

Therefore, as long as it cannot be recognized that the embezzlement of this case was out of the company, each of the dispositions of this case premised on this premise shall be deemed unlawful without any need to examine the remaining arguments of the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition after cancelling the judgment of the court of first instance and cancelling each disposition of this case.