[1] Whether a crime of false entry in the original copy of a notarial deed is established in a case where there is a defect that constitutes invalidation even if there is no matter stated in the original copy of the notarial deed or even if there is appearance (affirmative)

[2] In a case where one controlling shareholder who owns the majority of the total shares in a stock company where the ownership of shares is substantially distributed prepares a false minutes as if the resolution of the general meeting was made without going through the actual convocation procedure and resolution procedure, whether the resolution of the general meeting of shareholders can be deemed to exist (negative)

[1] Article 228 of the Criminal Code / [2] Articles 363, 368, 373, and 380 of the Commercial Code

[1] Supreme Court Decision 2004Do4012 Decided September 24, 2004, Supreme Court Decision 2005Do4910 Decided August 25, 2005 / [2] Supreme Court Decision 2005Da73020 Decided February 22, 2007 (Gong2007Sang, 490)

Defendant

Prosecutor

Seoul Western District Court Decision 2017No1182 decided December 7, 2017

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

The grounds of appeal are examined.

1. The crime of false entry in the original of a notarial deed is established when a false report is made to a public official to enter false facts in the original of the notarial deed. Even if there is any defect in the absence or appearance of the matters stated in the original of the notarial deed, such entry constitutes a false entry. However, if there is an objective existence of the mentioned matters or a juristic act causing such omission, and if there is only a defect in the grounds for revocation, such entry does not constitute a false entry in the original of the notarial deed before the cancellation (see Supreme Court Decision 2004Do4012 delivered on September 24, 2004).

On the other hand, unlike the so-called one company with a total share ownership, if a corporation with substantial distributed shares without undergoing the actual convocation procedure and resolution procedure and prepares a false minutes of the general meeting of shareholders as if the resolution was made by the general meeting of shareholders, it constitutes a case where there is a serious defect to the extent that the resolution cannot be deemed to exist, even if the minutes of the general meeting of shareholders were to have been prepared by the majority of the total shares and the controlling shareholder, and thus, the resolution of the general meeting of shareholders shall be deemed to have been nonexistent (see Supreme Court Decision 2005Da73020, Feb. 22, 2007).

2. The record reveals the following circumstances.

A. The first instance court determined that there was insufficient evidence to acknowledge the Defendant’s assertion that the Defendant owned the entire shares of Nonindicted Co. 1 Company (hereinafter “Nonindicted Co. 1”) and held that 30% of the shares was nominal trust to Nonindicted Co. 2.

B. The lower court also acknowledged the fact that the Defendant did not undergo a resolution of the board of directors in the process of holding the temporary general meeting of shareholders on August 7, 2015, and Nonindicted 2, who held shares of 30% on the list of shareholders, did not demand a notice to convene a temporary general meeting of shareholders in accordance with the articles of incorporation, and that the Defendant prepared the minutes of the temporary general meeting of shareholders by deeming that there was a resolution of the Defendant

3. Examining the foregoing circumstances in light of the legal principles as seen earlier, insofar as the Defendant does not actually own all the shares of Nonindicted Company 1, it constitutes a case where the resolution of a provisional shareholders’ meeting held on August 7, 2015, which was the cause of applying for change of the corporate registry of Nonindicted Company 1, constitutes a case where there is a serious defect to the extent that the said resolution could not be deemed to exist. Therefore, it constitutes a case where the said application for change was filed by filing a false report, and the registration of change, which was made accordingly, may be deemed as having

4. Nevertheless, on August 7, 2015, the lower court concluded that the defect of the resolution of the temporary general meeting of shareholders on August 7, 2015 was merely a cause for revocation of the resolution, and that there was no evidence to deem that the resolution of the temporary general meeting of shareholders was revoked by a lawsuit seeking revocation before being recorded in the corporate register of Nonindicted Company 1, thereby acquitted the Defendant of the facts charged in the instant case. In other words, ① the temporary general meeting of shareholders on August 7, 2015 was held by the Defendant, who is a legitimate convening authority, and the minutes were prepared in the manner of the Defendant’s intent, and thus, it cannot be deemed that there was no internal decision-making in the Nonindicted Company 1. ② The Defendant held at least 70% of the shares of Nonindicted Company 1, thereby meeting the quorum set forth in the articles of incorporation. ③ The lack of the resolution of the temporary

The judgment below is erroneous in the misapprehension of legal principles as to the cancellation or non-existence of the resolution of the general meeting of shareholders and the crime of false entry in the authentic copy of the authentic deed, which affected the conclusion of the judgment. The prosecutor'

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)