In case where the representative of a corporation paid the litigation expenses of the director who was decided to suspend the performance of duties at the corporate expense, whether embezzlement is established (negative)

In a case where a decision is made to suspend the performance of director's duties against a director of a corporation, it is apparent that the performance of duties by the director who performs the duties of the corporation in question would substantially interfere with the corporation's performance of duties. Thus, a corporation needs to bring a dispute against the above provisional disposition unless there is no room for dispute because the absence of director's qualifications is objectively clear. 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 performance of duties of the corporation and

Articles 356 and 355(1) of the Criminal Act

Defendant

Defendant

Attorney 000

Seoul Criminal Court Decision 87No2174 delivered on May 17, 1989

The judgment of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court.

Defendant’s defense counsel’s grounds of appeal

1. According to the reasoning of the judgment below, the court below recognized the following facts based on the macroficial evidence: the defendant forged the 143th meeting minutes of the 143th board meeting which is a foundation foundation on July 1983 and submitted them to the Culture Gazette book on July 6, 1983; the defendant forged the minutes of the 143th board meeting at the end of May, 198; submitted them to the Seoul Urban Education Committee at that time and used them; 2. from February 4, 1985 to February 6, 1986, deposited the proceeds from the sale of forests and fields owned by the above subficial company into the community credit cooperatives, and embezzled the proceeds from the above 3.7 million won of the interest supplement expenses received from the president from the above credit cooperative from February 4, 1985 to 1986. Upon examining the evidence relations based on the records, the court below accepted the above judgment below's approval and did not err in the misapprehension of facts as a litigation or incomplete deliberation, and there were no errors in the purport of embezzlement.

2. On April 1986, the judgment of the court below, in addition to the above facts, recognized the fact that the defendant embezzled by voluntarily withdrawing the amount of one million won around May 7, 1986 and paying one million won as the cost of attorney appointment, and recognized the defendant as the crime of occupational embezzlement, since the defendant applied for provisional disposition against the defendant, such as this creative number, i.e., non-indicted 20, which is a director of the above sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-

However, in a case where a provisional disposition against a director of a corporation who asserts the non-existence of a director's qualification applies for provisional disposition suspending the performance of director's duties and the provisional disposition is rendered, it is clear that the legal effect of such provisional disposition affects the corporation and it would substantially interfere with the corporation's performance of duties as a result of the suspension of the director's performance of duties. Thus, a corporation needs to bring an objection against the provisional disposition unless the absence of director's qualification is objectively clear and there is no possibility of a dispute. Thus, even if the representative of the corporation pays the litigation expenses of the director who is the respondent of the provisional disposition case at the corporation's expense, it constitutes the payment of expenses necessary for the corporation's performance of duties and

The court below found the defendant guilty solely on the ground that the above provisional disposition case against the defendant was against the defendant, and committed an unlawful act that affected the conclusion of the judgment by misunderstanding the legal principles of embezzlement and incomplete deliberation, and the judgment of the court below is not remarkably maintained in this regard.

3. Therefore, we reverse and remand the judgment of the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)