[1] In a case where a person who has delivered share certificates loses them by a false application for a public summons and thereby becomes final and conclusive upon a judgment of nullification, whether it constitutes a crime of fraud (affirmative)

[2] The scope of adjudication by an appellate court

[3] Whether a crime of false entry in the original notarial deed is established in a case where there is a defect that constitutes invalidation even if there is no matter mentioned in the original notarial deed or any external existence (affirmative)

[4] In a case where a public official in charge of issuance of new stocks reports the fact of issuance of new stocks to the public official in charge of issuing new stocks before a judgment becomes null and void, whether it constitutes a crime of false entry in the original

[1] In a case where a person who has issued share certificates loses them by filing a false application for a public summons and a final judgment becomes final and conclusive upon being rendered a judgment of nullification, such person shall be deemed to have acquired the status that he/she can exercise his/her right as a holder of share certificates even without holding the share certificates, so it is sufficient to deem that he/she has acquired property gains in a crime of fraud, and this does not change on the ground that the nullification judgment is limited to recognizing the formal qualification that he/she can exercise his/her right under the share certificates and it is not to confirm that person as

[2] The appellate court shall judge, without any need to decide whether the grounds for appeal are submitted, or whether the grounds for appeal are included in the statement of grounds for appeal, if the grounds for appeal are lawful. However, with respect to matters not the grounds for ex officio, they may be subject to adjudication only when they are entered in the petition of appeal or included in the statement of grounds for appeal submitted within the prescribed period. However, even if they are not included in the statement of grounds for appeal only in exceptional cases affecting the judgment, the appellate court may decide ex officio. Meanwhile, even if the defendant or defense counsel stated matters not included in the statement of grounds for appeal in the appellate court,

[3] The crime of false entry in the original copy of a notarial deed under Article 228(1) of the Criminal Act is a crime, the legal interest of which is protecting the public credibility of which is recognized, and is established by filing a false report contrary to the truth with respect to a public official, and having the public official enter or register false facts inconsistent with the substantive relations, such as the original copy of a notarial deed or the same electronic record. Thus, even if there is no matter stated in the original copy of a notarial deed, or if there is any defect in appearance, if there is

[4] Even if there exists a legal ground for invalidation in the issuance of new shares by a stock company, the invalidity may be asserted only by a lawsuit invalidating the issuance of new shares, and even if a judgment invalidating the issuance of new shares becomes final and conclusive, the judgment is effective only in the future (Articles 429 and 431(1) of the Commercial Act). Thus, the report to the public official in charge of the issuance of new shares to the public official before a judgment invalidating the issuance of new shares becomes final and conclusive by a judgment, and thus, the report to the public official in charge of the issuance of the new shares and the entry

[1] Article 347 of the Criminal Act, Article 487 of the Civil Procedure Act / [2] Articles 361-4 and 364 of the Criminal Procedure Act / [3] Article 228 (1) of the Criminal Act / [4] Article 228 (1) of the Criminal Act, Articles 429 and 431 (1) of the Commercial Act

[1] Supreme Court Decision 75Do634 delivered on July 27, 1976 (Gong1976, 933), Supreme Court Decision 2003Do4914 Delivered on December 26, 2003 (Gong2004Sang, 298) / [2] Supreme Court Decision 98Do1234 Delivered on September 22, 1998 (Gong1998Ha, 2628), Supreme Court Decision 2002Do167 Delivered on February 26, 2002 / [3] Supreme Court Decision 2005Do9402 Delivered on March 10, 206 (Gong2006Sang, 699)

Defendant

Defendant

Attorney Park Jong-soo et al.

Seoul Central District Court Decision 2005No3952 Decided November 8, 2006

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

We examine the grounds of appeal.

1. As to the ground of appeal on fraud

A. In a case where a person who has issued share certificates loses them by filing a false application for a public summons and a final judgment becomes final and conclusive after having been rendered a judgment of nullification, such person, by the positive effect of the said judgment, shall be deemed to have acquired the status as a person who holds share certificates without holding the share certificates, and thus, it shall be deemed sufficient to deem that the judgment of nullification has acquired property benefits in a crime of fraud, and it shall be limited to recognizing the formal qualification for the applicant to exercise the rights in the share certificates, and shall not be deemed to have been determined as a substantial right holder (see Supreme Court Decisions 75Do634, Jul. 27, 1976; 2003Do4914, Dec. 26, 2003, etc.).

The court below held that the defendant's deception by deceiving the court and received a judgment of nullification on the share certificates of non-indicted 2 corporation possessed by non-indicted 1 constitutes fraud. In light of the above legal principles, the above judgment of the court below is just, and there is no error of law by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the establishment of a judgment of nullification and a crime of fraud

B. The court below acknowledged that at the time of the establishment of the non-indicted 2 corporation, 5,50 shares of the non-indicted 2 corporation owned by the non-indicted 3 corporation (hereinafter "the shares of this case"), at the time of the first capital increase and the first capital increase, the non-indicted 1 loaned another person's name, acquired shares, paid the price, and changed the shareholder's name to the non-indicted 3 corporation according to its own needs, or after the non-indicted 1 acquired shares in the name of the non-indicted 3 corporation and paid the price, the name of the shareholder was changed to the non-indicted 3 corporation, and the non-indicted 1 kept all the registered shares of the above shares at the time of the judgment of nullification after the above acquisition of shares, and held that the shares of this case was trusted in trust with the non-indicted 3 corporation after the acquisition of the shares of this case. In light of the evidence duly admitted by the court below, the above judgment of the court below is just and there is no violation of law by failing

C. The appellate court shall judge without any need to examine whether the appeal has been filed or included in the statement of reasons for appeal, if the appeal is lawful with respect to the grounds for ex officio investigation. However, with respect to those other than the grounds for ex officio investigation, it may be subject to adjudication only when they are entered in the petition of appeal or included in the statement of reasons for appeal submitted within the prescribed period. However, even if they are not included in the statement of reasons for appeal only for the reasons affecting the conclusion of the judgment, the appellate court may decide ex officio. On the other hand, even if the defendant or defense counsel stated matters not included in the statement of reasons for appeal in the appellate court, such circumstance alone does not necessarily lead to the existence of reasons for appeal as to the assertion contained in the statement (see Supreme Court Decision 2002Do

According to the defendant's statement of grounds of appeal in this case, it is evident that there was a misapprehension of legal principles or misconception of facts as to who the owner of the shares in this case was the owner of the shares in this case. It is not clear that there was any mistake of facts as to whether the defendant had the intention to commit the above fraud. In addition, although the defendant's defense counsel asserted that the defendant denied the intent to commit the above fraud in the summary of oral argument submitted in the court of the court below after the lapse of the period for submitting the statement of grounds of appeal, it cannot be viewed that there was any ground for appeal. Meanwhile, the defendant's defense counsel's late assertion of mistake of facts as to the crime of the above fraud is not a matter of ex officio investigation, and as seen above, the shares in this case are title trust with the non-indicted 1, and the facts that the defendant acquired the shares in the non-indicted 3 corporation, the relationship between the defendant and the non-indicted 4, and the representative director of the non-indicted 2 corporation, the role of the defendant before and after the judgment of appeal, and after the above defendant's action.

2. As to the ground of appeal on the crime of false entry in the authentic deed and the uttering of the authentic deed

The court below held that the defendant is liable for the crime of false entry in the original authentic document and the crime of false entry in the original authentic document, even if the appearance of the issuance of new shares exists, inasmuch as the defendant, on October 16, 2003, accepted all of the above new shares 20,000 shares on the same day by Non-Indicted 4, and had the public official in charge of being aware of such fact make a registration changing the number of shares into 40,000 shares in the corporate register of Non-Indicted 3, thereby keeping the same in the above register, which is the original authentic document.

The crime of false entry in the original of a notarial deed under Article 228(1) of the Criminal Act is established when a public official makes a false report contrary to the truth and makes a false report against the public official to enter or register false facts inconsistent with the substantive relations, such as the original of a notarial deed or the same electronic record. Thus, even if there is no matter stated in the original of a notarial deed or there is a defect in appearance, if there is a defect in the invalidation, such entry shall be deemed to fall under a false entry (see Supreme Court Decision 2005Do9402, Mar. 10, 2006). However, even if there is a legal ground for invalidation in the issuance of new shares, even if there is a legal ground for invalidation in the issuance of new shares, the invalidation shall be asserted only by a lawsuit for nullification of the issuance of new shares, and even if the judgment becomes final and conclusive, the judgment has only effect in the future (Articles 429 and 431(1) of the Commercial Act), and the public official did not make a false report or false entry in the corporate register.

According to the evidence duly admitted by the court below, the defendant's issuance of new shares at the time of filing an application for registration of change of corporate register due to the issuance of new shares by non-indicted 3 corporation, and even thereafter thereafter, it is acknowledged that the above issuance of new shares became null and void by judgment through litigation for invalidation of the issuance of new shares. In light of the above legal principles, even if there was a violation of the preemptive rights of some shareholders in the process of issuing new shares by non-indicted 3 corporation, and thus the invalidation of the issuance of new shares became final and conclusive by judgment, so long as the issuance of new shares was not invalidated by judgment, reporting to the public official in charge of the issuance of such new shares to a public official and allowing him to enter such issuance in the corporate register as a notarial deed cannot be deemed to constitute a false report or a false entry. Thus, the above act of the defendant does not constitute a crime of false entry in the original copy of a notarial deed or a crime of exercising the original copy of a notarial deed. Nevertheless, the court below found the defendant guilty as to this part of the facts charged.

3. Scope of reversal

Therefore, among the judgment of the court below, it is impossible to maintain the point of the fraudulent entry in the authentic deed and the exercise of the authentic deed original, and on the other hand, the court below rendered a single punishment by viewing each of the above parts against the defendant as concurrent crimes under the former part of Article 37 of the Criminal Act and the remaining parts of the judgment of the court below cannot be maintained.

4. Conclusion

Therefore, all of the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)