Whether the crime of occupational embezzlement is established in case where the representative of a corporation paid the litigation costs of the director who was decided to suspend the exercise of director's duties from the corporate expenses (negative with qualification)

In a case where a decision is made to suspend the performance of director's duties against a director of a corporation, it is clear that the performance of duties by the director who performs the duties of the corporation concerned would substantially interfere with the corporation's performance of duties. Thus, a corporation needs to bring an objection against the above provisional disposition unless there is no room for dispute because the absence of director's qualifications is objectively obvious. Thus, even if the representative of the corporation pays the litigation expenses of the director who is the respondent of the pertinent provisional disposition case from the corporation's expense to the necessary extent, it constitutes the payment of expenses necessary for the corporation's performance of duties, and it shall not

Articles 355(1) and 356 of the Criminal Act

[Plaintiff-Appellant] 1102 decided Jun. 26, 1990 (Gong1990, 1632)

Defendant

Defendant and Prosecutor

Attorney Kim Jong-soo

Daejeon District Court Decision 2002No2405 Delivered on February 6, 2003

All appeals are dismissed.

We examine the grounds of appeal.

1. As to the Defendant’s ground of appeal

A. Part of occupational embezzlement

Examining the evidence duly admitted by the court below in light of the records, it is just that the court below found the defendant guilty of the crime of occupational embezzlement of the global income tax and the advance payment of 23 million won that the defendant spent or used, and there is no error of law by misunderstanding facts against the rules of evidence or by misapprehending the legal principles as to the intent of unlawful acquisition and embezzlement of the crime of occupational embezzlement and the burden of proof in criminal proceedings, as otherwise alleged in the ground of appeal.

The ground of appeal that there is an error in the misapprehension of legal principles as to the validity of the resolution of the board of directors is merely an error of the court below's additional decision which does not affect the conclusion of the judgment, and thus cannot

B. Parts on the alteration and display of private documents

The court below found the defendant guilty on the grounds that the minutes of the board of directors on May 9, 200 did not have the seal of the participants of the board of directors, but they were read by the board of directors without objection, and there were many minutes without the signatures or seals of the participants in other board of directors of the non-indicted corporation, and the board of directors on May 9, 200 recognized that the minutes of the board of directors on May 9, 200 did not have the seal of the minutes at that time to the extent that they decided to affix two joint signatures and seals as to the minutes of the resolution from the next month, and that the minutes of the board of directors on May 9, 200 are not the completed documents which are the objects of the alteration of private documents. In light of the relevant evidence's records, the court below's fact-finding and judgment are justified, and there is no error of law by misunderstanding the legal principles as to the objects of the alteration of private documents, as otherwise alleged in the ground of appeal.

On the other hand, since the contents of the meeting minutes of the board of directors can only be revised by a resolution of the board of directors, the representative director's right to revise the meeting minutes of the board of directors is not accepted since it is merely an independent opinion.

2. As to the Prosecutor’s Grounds of Appeal

In a case where a decision is made to suspend the performance of director's duties against a director of a corporation, it is clear that the performance of duties by the director who performs the duties of the corporation concerned will substantially interfere with the corporation's performance of duties. Thus, a corporation needs to bring an objection against the above provisional disposition unless there is no room for dispute because the absence of director's qualifications is objectively obvious. Thus, even if the representative of the corporation pays the litigation expenses of the director who is the respondent of the pertinent provisional disposition case from the corporation's expenses to the necessary extent, it constitutes the payment of expenses necessary for the corporation's performance of duties, and it cannot be viewed as embezzlement of corporation's expenses (see Supreme Court Decision 89Do102 delivered on June 26, 190).

In light of the above legal principles and records, the court below acquitted the defendant of this part of the charges of occupational embezzlement on the ground that the defendant's act of paying the defendant's attorney's expenses with the funds of the non-indicted corporation constitutes the act of paying expenses necessary for the performance of the above company since the non-existence of representative director's qualification at the time was objectively clear and there is no room for dispute, in light of the contents of the defendant's application cause or cause of claim for the suspension of performance of duties against the defendant and the case of the request for dismissal of representative director, the court below reversed the judgment of the court of first instance which found him guilty of this part of the charges of occupational embezzlement, and found him not guilty. In light of the above legal principles and records, the above judgment of the court below is just and acceptable (in case of a lawsuit for dismissal of representative director, the same logic as the case where the application for the suspension of performance

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)