Seoul Administrative Court 2015Guhap69751 ( August 26, 2016)

early trial 2014west032 (2015.08)

Whether the amount equivalent to the embezzlement was out of the company at the time of the embezzlement

The president of the Association seems to have controlled the plaintiff at the time of embezzlement and deemed that the plaintiff could be deemed identical to the president of the Association and the plaintiff's intent. Since it is reasonable to see that the plaintiff knew of embezzlement by the president of the Association and actually implied or ratified it, the act of embezzlement is not premised on the recovery, and the amount equivalent to the withdrawn amount immediately should be deemed to have been disclosed from the company.

Article 67 of the Corporate Tax Act

2016Nu65468 Notice of change in amount of income

An incorporated association ○○○○○ Association

○ Head of tax office

Seoul Administrative Court Decision 2015Guhap69751 decided August 26, 2016

June 2, 2017

July 7, 2016

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

1.In the judgment of the first instance,

A. On October 1, 2013, the Defendant revoked the part of KRW 1,640,95,749 among the disposition of notification of change in income amount of KRW 4,981,738,260 for the Plaintiff on October 1, 2010, and the part of KRW 50,00,000 among the disposition of notification of change in income amount of KRW 409,868,860 for the year 201, and dismissed the Plaintiff’s lawsuit corresponding to the revocation part;

B. On October 1, 2013, the Defendant revoked the part of KRW 3,078,481,088 among the remainder except the foregoing dismissed part in the disposition of notice of change in income amount of KRW 4,981,738,260, which was issued against the Plaintiff on October 1, 2010, and dismissed the Plaintiff’s claim corresponding to the revoked part.

2. The defendant's remaining appeal is dismissed.

3. One-half of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

And Grounds for Appeal

1. Purport of claim

On October 1, 2013, the Defendant revoked each disposition of notice of change in income amount of KRW 4,463,480 for the Plaintiff, KRW 4,981,738,260 for the year 2009, KRW 409,868,860 for the year 201, and KRW 409,868,860 for the year 201.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

This part of the reasoning of the judgment of the court of first instance is the same as the corresponding part of the reasoning of the judgment of the court of first instance (from 5th to 16th of the judgment of the court of first instance). Thus, this part of the judgment is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article

2. Whether a claim for revocation of ex officio revoked notice of change in the amount of income among the dispositions in this case is legitimate (ex officio determination)

When an administrative disposition is revoked, such disposition shall lose its validity and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2012Du18202, Dec. 13, 2012).

According to the records, among the part against the defendant in the judgment of the court of first instance on June 13, 2017, which was after the closing of argument in the trial, the defendant may recognize the fact that the defendant issued a decision to revoke ex officio the part of KRW 1,640,95,749 for the year 2010 and KRW 50,000 for the year 20,000 for the disposition in this case. Therefore, the claim to revoke the cancelled part among the lawsuit in this case is seeking to revoke the disposition that is not effective due to the extinguishment of its validity, and is unlawful as there is no interest in the lawsuit.

3. Whether the instant disposition is lawful

This part of the judgment is revoked ex officio in subsection 2 and is not the interest of the action.

limited to the portion.

A. The plaintiff's assertion and relevant statutes

This part of the reasoning of the judgment of the court of first instance is the same as the pertinent part of the reasoning of the judgment of the court of first instance (from the second to the second to the third to the fourth and fourth to the fourth of the judgment of the court of first instance). Therefore, this part of the reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main text

(c) Fact of recognition;

This part of the judgment is identical to the corresponding part of the reasoning of the judgment of the court of first instance, except for amendments or additions as follows. Thus, this part of the judgment is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○○ 3rd 8th 1st 8th 2th 2th 2th 2009, “the Plaintiff is a nonprofit incorporated association established for the purpose of implementing industrial health-related projects as members and health care projects, etc. of community residents, such as doctors, nurses, and cooks on July 6, 1964. ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 2.

(iv) add the term "the removed power; 4)"

○ Removal of 3rd to 19th to 3rd to 14th to 19th to the court of first instance.

○ “(2)(2) at the lower end of the judgment of the first instance court” is 5) the Ministry of Employment and Labor’s recommendation to dismiss the employee, and modified it.

○ On December 30, 199, the first instance court’s decision 4 pages 1, 200, and the Ministry of Employment and Labor, “the Minister of Employment and Labor, the President ○○○○.”

① On February 22, 2008, in violation of the provisions of Articles 71 through 75 of the Civil Act, Articles 7 through 9, and 11 of the Association’s articles of incorporation, the board of representatives replacing the general meeting of members constitutes a board of representatives organized by a lawful member and elected by the chairperson at the meeting of representatives present by a majority of persons not qualified for membership. ② The general meeting of members held in 2009 and 2010 also seriously damages the functions of deliberation and resolution at the meeting of the highest decision-making body of the incorporated association, which is the highest decision-making body of the incorporated association, with the participation of the majority of the lawful members. ③ When sending a letter of public notice to the general meeting of members, the term “trustee of all the powers to be exercised by the members” was in violation of Article 73 of the Civil Act (right of resolution by the members) by de facto infringing upon the right of resolution by the members, ④ from around 209 to October 201, the Plaintiff’s non-profit corporation and the Plaintiff’s general meeting of 200 years under private contract.

○ The phrase “Evidence 8, 69, and 4 of the first instance judgment” shall be amended to read “Evidence 68 of the first instance judgment”.

○ To revise “three parallels (3) at the bottom of the first instance judgment at the fourth level” to “six (6)”.

At the end of the fourth decision of the first instance court, the team members of the financial management office knew that ○○ without permission from the Plaintiff’s account. On the other hand, on September 3, 2012, the Plaintiff’s trade union issued a written statement demanding the recovery of embezzlement property, etc. if ○○ engaged in an investigation by the relevant police such as embezzlement of ○○, etc., and search and seizure of the police in relation to the suspected receipt of rebates, etc. on September 3, 2012.

○ To revise “8,9,11 through 8” one on five pages of the first instance judgment.

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, barring special circumstances, and thus, it constitutes an outflow from the company as its own expense (see, e.g., Supreme Court Decisions 98Du7350, Dec. 24, 1999; 9Du3324, Sept. 14, 2001). As to special circumstances that cannot be viewed as not premised on recovery from the utilization time, the actual status of the corporation, such as the representative director, etc., who is the principal manager of the embezzlement, and the degree of control over the corporation, and the reasons leading up to the embezzlement, and whether it is difficult to see that the representative director, etc. and the corporation's economic interests are identical to the corporation's intent or are in fact consistent with the corporation's economic interests after embezzlement, such special circumstances should be determined individually and specifically by taking into account all the circumstances such as where the corporation asserting such circumstances are proved (see, e.g., Supreme Court Decisions 2002323Du379, Nov. 27, 28, 2009.

2) In light of the following circumstances revealed by the facts acknowledged earlier, it appears that ○○○ was able to present the same intention as ○○○ and the Plaintiff’s actual control over the Plaintiff at the time of embezzlement of KRW 3,078,481,08 (amount 2,918,481,088 of the conviction of embezzlement in the first instance + KRW 160,000,000) as seen above, and therefore, it is reasonable to view such embezzlement as having been actually implied or ratified even with the knowledge of the least ○○○’s embezzlement. Accordingly, it is reasonable to view that such embezzlement was not premised on the recovery of the Plaintiff’s embezzlement, and it is immediately deemed that the amount equivalent to the withdrawn amount was released from the Republic of Korea, and it does not mean that the Plaintiff took measures for recovery by another person after a considerable period of time has elapsed since the embezzlement.

① The highest ○○○, while working as the Plaintiff’s director for six years from 2005, was in control of all the tasks, including the Plaintiff’s personnel affairs and finance, and on December 30, 201, the Plaintiff called the board of directors and expressed his/her intention of resignation by convening the board of directors only on April 25, 201, when four months elapsed since the recommendation of dismissal by the Ministry of Employment and Labor was issued on December 30, 201. The Plaintiff did not have any contribution as a non-profit incorporated association, and was under the structure of inspection and supervision by the Minister of Employment and Labor only, it appears that ○○○ could have been in control over the Plaintiff

② Although ○○○○ was employed by the last ○○○ without any particular career, and had been aware of the employees under the ○○○○○○○○○○○○○, who were employed for purposes other than the Plaintiff’s Association, the Plaintiff filed a complaint with the investigative agency on the charge of embezzlement only for the last two years and two months after embezzlement by public offering between ○○ and ○○○○, and filed a complaint with the investigation agency on August 2012. The filing of a complaint with the last ○○ was around two months thereafter on October 2012.

③ In the case of ○○○, the Plaintiff filed a complaint with embezzlement and filed a complaint with the sum of KRW 4,846,480,000,000 in total, while in the case of ○○○○○, on October 19, 2012, the Plaintiff processed 5,396,070,611 won in total, following the Seoul Regional Tax Office’s audit was completed on August 4, 2013 and the first instance judgment on the maximum ○○ on October 18, 2013 was handed down.

④ After undergoing a tax investigation by the Seoul Regional Tax Office, the Plaintiff filed a provisional attachment, provisional injunction, and claim for damages against the ○○○ and his family members to minimize and recover losses caused by embezzlement, and the decision of recommending settlement with some Defendant of a lawsuit seeking damages was concluded, but only some of the amount was paid (in the absence of any evidence to support that the Plaintiff reported partial payment of damages by including it in gross income as tax adjustment within the reported period of revision of corporate tax for the pertinent business year, it cannot be deemed as a case where the Plaintiff did not dispose of income under the main sentence of Article 106(4) of the former Enforcement Decree of the Corporate Tax Act. In addition, in light of the fact that the time when the Plaintiff received the above money was after the tax investigation period of this case against the Plaintiff (the date of filing a lawsuit for damages and the date of recommending settlement after the date of the disposition in this case), the Plaintiff can be deemed to have received the above damages after being aware of the fact that the Plaintiff had already been paid the opportunity to correct it, regardless of the above amount, it constitutes a case of disposal of income under the proviso of Article 106(10.

3) Furthermore, the Defendant asserts that the instant disposition that was disposed of by deeming that the amount was out of the company as a bonus for the representative and that it was not recognized as the largest amount of ○○○’s embezzlement but unclear, as seen earlier, as the amount was transferred to 3,078,481,088 won by ○○○○ individual account under a criminal trial - The instant disposition that was disposed of by deeming the amount to have been out of the company as a bonus for the representative is justifiable.

However, the evidence presented by the defendant alone is insufficient to view that the ownership of the above money is unclear. Therefore, the defendant's above assertion is not acceptable.

4. Conclusion

Therefore, among the lawsuits in this case, the part concerning the notification of change in income amount of KRW 1,640,95,749, which the defendant revoked ex officio in 2010, and the part concerning the notification of change in income amount of KRW 50,000,00, which belongs to the year 2011 should be dismissed as unlawful. Since the judgment in the court of first instance is unfair with a different conclusion, the part against the defendant revoked ex officio in the judgment in the above judgment in the court of first instance shall be revoked, and the plaintiff's lawsuit falling under the revoked part shall be dismissed, and Article 32 of the Administrative Litigation Act shall apply to the litigation costs falling under the above dismissed part. Further, the plaintiff's claim for revocation of the above notification of change in income amount shall be limited to only the remaining part, excluding the above dismissed part, which is the 3,078,481,08, which was released from the embezzlement of the 2010, and the judgment in the court of first instance shall be dismissed as part of the defendant's appeal.