In the event that the acquisition price of shares paid to a bank for the establishment of a corporation was immediately withdrawn after the registration of incorporation, whether the crime of soliciting payment is established (negative with qualification)

The crime of provisional payment under the Commercial Act is to regulate acts detrimental to the purpose of the law that attempts to maintain the capital of a company. Thus, even if the acquisition value of stocks paid to a bank for the establishment of a corporation was immediately withdrawn after the registration of incorporation, the corporation already acquired assets equivalent to the amount of stocks paid, and if the withdrawn money was used for settling the lending and borrowing relationship arising in the course of acquiring the assets, the crime of provisional payment is not established.

Articles 622(1) and 628(1) of the Commercial Act

Supreme Court Decision 77Do2439 Decided November 8, 197 (Gong1977, 10388) Supreme Court Decision 79Do1489 Decided December 11, 1979 (Gong1980, 12439) Supreme Court Decision 80Do537 Decided April 13, 1982 (Gong1982, 539) Supreme Court Decision 85Do2297 Decided September 9, 1986 (Gong1986, 1419), Supreme Court Decision 93Do1200 Decided August 24, 1993 (Gong193Ha, 2679), Supreme Court Decision 96Do2904 Decided February 14, 197 (Gong1997, 19505)

Defendant

Prosecutor

Seoul District Court Decision 99No2827 delivered on June 23, 1999

The appeal is dismissed.

The crime of provisional payment under the Commercial Act is to regulate the acts detrimental to the purpose of the law that attempts to maintain the capital of a company. Thus, even if the acquisition value of stocks paid to a bank for the establishment of a corporation was immediately withdrawn after the registration of incorporation, the corporation already acquired assets equivalent to the amount of stocks paid, and if the withdrawn money was used for settling the lending and borrowing relationship arising in the course of acquiring the assets, the crime of provisional payment is not established.

In the same purport, the court below's determination of not guilty of the facts charged in this case is correct, and there is no violation of law by misunderstanding the legal principles as alleged in the grounds of appeal.

Therefore, the appeal is dismissed as per Disposition.

Justices Shin Sung-sung (Presiding Justice)