High Court 2012 Jeon 4172 (2013.04.03)

The embezzlement money of the representative director shall not be deemed to have been out of the company if it is difficult to express the intent of the representative director in the same manner as

It is reasonable to deem that the Plaintiff has a damage claim against the representative director due to the embezzlement, etc. Therefore, it is difficult to deem that the assets equivalent to the embezzlement immediately were out of the company at the time of embezzlement.

Article 106 (Disposition of Income)

cancellation of change in income amount, etc. in Suwon District Court 2013Guhap12172

○○○○ Incorporated Company

○ Head of tax office et al.

January 16, 2014

February 13, 2014

1. On November 7, 2011, the notice of change in the income amount of bonus ○○○○○○, which was given by the head of the tax office head on November 7, 201 against the Plaintiff on the part of the Plaintiff, and the notice of change in the income amount of bonus ○○○○○○ in 2008, which was given to the Plaintiff on the part of the income earner, shall be revoked.

2. On July 16, 2012, the head of the tax office’s imposition of ○○○○○○○ upon the Plaintiff on the ground that the imposition of ○○○○○○○○○○ upon the Plaintiff exceeds ○○○○○○○ in the imposition of 2008 earned income tax attributed to year 208, and the imposition of ○○○○○

3. The costs of lawsuit shall be borne by the Defendants.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff (former Co., Ltd.) was established on June 23, 1978 and operated a manufacturing business of semiconductor equipment and parts, etc., and was listed on the KOSDAQ on January 16, 2004.

B. On July 23, 2008, 2008, ○○○○○○ (the corporate register of the Plaintiff Company was registered in XX) embezzled the total sum of KRW ○○○○○○○○ in the year 2008 and year 2009 as advance payment between the Plaintiff Company’s representative director and his dismissal on March 30, 209.

C. Accordingly, on November 7, 2011, the head of ○○ Tax Office included the embezzlement amount of ○○○ in the gross income and disposed of bonus, and notified the Plaintiff of the change in the income amount of 008 bonus 2008 and bonus 2009 with respect to the Plaintiff. The head of ○○ Tax Office, on July 16, 2012, on the ground that the Plaintiff failed to perform the obligation to report and pay the tax withholding amount of wage and salary income of ○○○ pursuant to the above notice of change in the income amount, on the grounds that the Plaintiff’s failure to perform the obligation to report and pay the tax withholding amount of wage and salary income of 2008 (the tax withholding amount of wage and salary income of persons other than ○○, such as NoA, NoBB, and NoCC, is the 000 won) and the tax imposing amount of wage and salary income for 2009 (the notice of change in the above income amount and the tax imposing amount for 2008).

D. On August 23, 2012, the Plaintiff dissatisfied with each of the instant dispositions, filed an appeal with the Tax Tribunal on August 23, 2012, but was dismissed on April 3, 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 8, 18, 19, and 20, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

Each of the dispositions of this case is premised on the fact that ○○○ has embezzled the assets of the Plaintiff Company on the premise that the amount of embezzlement is "evacated outflow from the Plaintiff Company" and is "verted to him." However, since the Plaintiff has the right to claim damages against the ○○ criminal act that embezzled the assets of the Plaintiff Company as the victim of the ○○○○ criminal act that embezzled the assets of the Plaintiff Company, the assets of the Plaintiff Company shall be deemed reserved in the company in a different form. Since the Plaintiff did not have implied or ratified the act of embezzlement of the mobile friendship, each of the dispositions of this case, which was disposed of as a bonus

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The ○○○○○ Co., Ltd. (hereinafter “○○○○”) is a company established on August 8, 2007 for the purpose of developing software.

(2) Around May 2008, ○○○, etc. agreed to acquire the Plaintiff’s shares and management rights through ○○○○○○○, etc., and concluded a contract with the head of ○○○○, etc., who was the representative director of the Plaintiff at the time of acquisition of the Plaintiff’s management rights, to purchase the Plaintiff’s registered common shares with ○○○○, etc. (hereinafter “instant shares”) at KRW 00 billion (However, the contract was drafted on July 4, 2008), and the main contents thereof are as follows. Meanwhile, ○○ borrowed ○○ from the above sales amount of KRW 00 billion to the head of ○○○, ○○○, etc.

Article 1 (Purpose of Contract)

The purpose of this contract is to transfer the shares and management rights of the company (Plaintiff) owned by the transferor, and to determine the circumstances related to acquiring the shares and management rights of the company (Plaintiff) from the transferor through due process.

Article 2 (Subject-Matter Stocks and Sales Price)

1. The shares shall consist of ○○○ and six other, among the registered ordinary shares issued by the company (Plaintiff).

2. The purchase price of the subject shares is KRW 00 billion.

Article 3 (Payment of Sales Price)

The transferee shall pay the purchase price to the transferor as follows:

1. The transferee shall pay the sales amount to the transferor, as the down payment on the day of this contract, KRW 00 billion as the down payment, and the intermediate payment to the transferor.

2. The transferee shall pay the balance to the transferor, along with confirming that the transferee’s designated person is a director or auditor at the temporary shareholders’ meeting set forth in Article 7(1).

Article 7 (Duties of Transferors)

1. The transferor, on July 23, 2008, shall appoint as directors and auditors the persons nominated by the transferee at the temporary shareholders’ meeting scheduled to be held by the board of directors resolution.

2. The transferor shall delegate to the assignee all voting rights related to the subject shares from the day following the day of the extraordinary shareholders’ meeting to the day when the protection of the subject shares expires.

(3) On July 11, 2008, ○○○, etc. purchased all of ○○○○○○’s total outstanding shares at KRW 00,00,000 in total.

(4) On July 23, 2008, ○○○○○○○ was appointed as the representative director at the Plaintiff’s temporary general meeting of shareholders. On the 25th day of the same month immediately following the date, ○○○○○○ was instructed from Hong Kong to Kim○○, a vice president of the Plaintiff at the time of telephone, ordering the Plaintiff to transfer the Plaintiff’s funds deposited in business under the name of advance payment for the representative director’s business as a bond interest, etc. From that time to March 6, 2009, ○○○○○○ was embezzled to use the Plaintiff’s funds for purposes such as paying interest on the bonds borrowed to take over the Plaintiff over over over over over over over over over over over over over over over over over over a approximately ○ period from March 2008, 2008, ○○○○○○○○ upon the Plaintiff’s audit’s account book, and then deposited them to the Plaintiff’s account again on September 30, 2008, 2008.

(5) On March 30, 2009, the Plaintiff dismissed ○○○○○○ from office as the Plaintiff’s representative director. On May 25, 2009, the Plaintiff filed a criminal charge against ○○○○○○ on September 21, 2009, by filing a lawsuit seeking compensation against ○○○○○ on April 16, 2010, which was rendered a favorable judgment (Seoul Central District Court 2009 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○1.

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 1 through 9, 11 through 17, and the purport of the whole pleadings

D. Determination

(1) The act of a representative director, etc., who is the actual manager of a corporation, uses the corporation’s funds on the premise of early recovery, and thus, constitutes an outflow from the company as an expenditure itself. As to special circumstances that cannot be deemed as not premised on recovery from the utilization time, the determination shall be made 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., such as where the representative director, etc.’s intent is identical to the corporation’s intent or where it is difficult to deem that the corporate economic interest is in fact identical with the representative director, etc., and such special circumstances must be proved by the corporation asserting it (see, e.g., Supreme Court Decision 2012Du23822, Feb. 28,

(2) In light of the following circumstances, it is reasonable to view that the Plaintiff has a damage claim against ○○○ by an unlawful act, such as embezzlement, in light of the aforementioned facts and the overall purport of the arguments, and in light of the following circumstances, it is reasonable to view that the Plaintiff held the damage claim against ○○○ by the aforementioned embezzlement. Therefore, it is difficult to view that the assets equivalent to ○○○○’s embezzlement immediately were released from the company at the time of such embezzlement.

① In order to acquire unjust profits by embezzlement of company’s property without any intention to properly manage the Plaintiff from the beginning, ○○ has committed tort, such as accepting the Plaintiff and embezzlement of large amounts of money up to approximately KRW 00 billion for a period of 0 months.

② As of July 23, 2008, the shares of the Plaintiff Company, which ○○ owned through ○○○○○○, are merely about 8% (the total number of shares issued and outstanding, ○○○○○○○○○) as of July 23, 2008, and the Plaintiff, as a corporation listed on the KOSDAQ, holds approximately 92% of the shares of the remaining shareholders, including minority shareholders, and thus, it is difficult to deem that ○○○’s intent is identical to the Plaintiff’s intent as a corporation listed on the KOSDAQ, or that the economic interest between the Plaintiff and ○○○ is practically consistent.

③ This, “○○○” concealed the act of embezzlement on the following day after depositing the amount of embezzlement into the Plaintiff’s account at the end of the period subject to audit and inspection. From March 3, 2009, the executives and employees of the Plaintiff Company, etc., who became aware of such embezzlement, removed ○○ from the representative director on or around May 2009, filed a complaint with ○○. On or around September 21, 2009, the first instance court rendered a criminal judgment against ○○ in relation to the above embezzlement, etc., filed a lawsuit claiming damages against ○○ in relation to the above embezzlement, etc. on or around September 16, 2010, and became final and conclusive after receiving the judgment in favor of the Plaintiff on April 16, 2010, and applied for a provisional attachment on ○○○○’s property and carried out credit investigation to secure ○○○○○○’s responsible property. However, the Plaintiff did not have any other reason to acknowledge that the Plaintiff had been aware of the above embezzlement or ratification.

3. Conclusion

Thus, the plaintiff's claim seeking revocation of each disposition of this case is justified, and all of them are justified.

It is so decided as per Disposition by the assent of all participating Justices.