Requirements for establishing a crime of soliciting payment

The purpose of Article 628 (1) of the Commercial Act is to regulate acts of neglecting the legal intent of the law that intends to lose the company's capital. Thus, in the case where the payment of the stock price was made in form or temporarily without intent to secure the company's capital through the payment of the stock price, and the stock price was deposited in the bank and immediately withdrawn the paid money after completing the procedure of registration of incorporation or registration of capital increase after obtaining a certificate of payment of the stock price and completing the registration of incorporation or the registration of capital increase, unless there are special circumstances that the company used the stock price for the company is increased, the crime of soliciting payment is established, and there is no relation in principle with the reason that a claim or obligation equivalent to the amount arises in relation to

Article 628(1) of the Commercial Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant-appellee)

A

Prosecutor and Defendant

Attorney B

Daegu High Court Decision 92No813 delivered on March 24, 1993

All appeals are dismissed.

We examine the grounds of appeal.

As to the grounds of appeal by the Defendant and the public defender prior to revocation, the private defense counsel’s supplemental appellate brief shall be deemed to supplement the above grounds of appeal.

1. In light of the records, we affirm the fact-finding by the court below as to the violation of the Commercial Act, and there is no error in the misapprehension of legal principles or the rules of evidence against the rules of evidence.

2. The purpose of Article 628 (1) of the Commercial Act is to regulate the act of neglecting the intent of the law that intends to lose the company's capital. Thus, in a case where the payment of the stock price was made in a form or temporarily without intent to secure the company's capital through the payment of the stock price and the stock price was deposited in the bank and immediately withdrawn the paid money after completing the registration of incorporation or the registration of capital increase after obtaining a certificate of payment for the stock price was issued, the crime of soliciting payment is established, unless there are special circumstances that the company used the paid money for the company, and it does not increase the company's capital, and in principle, there is no relationship between the company and the company (see, e.g., Supreme Court Decisions 80Do537, Apr. 13, 1982; 85Do2297, Sept. 9, 1986).

According to the facts acknowledged by the court below, C, as the total amount of its capital stock of 50,00 won (10,000 won per share) at the time of its establishment, was limited to the total amount of 50,000,000 won, and the representative director of the above company, at least 20-3 billion won can be inspected by the Ministry of Culture and Tourism to register daily assets, and the defendant, who is the representative director of the above company, had the intent to increase the capital on the company register in 2.4 billion won. On October 12, 1987, the defendant and his family members borrowed 150,000,000 won in a lump sum in the name of the defendant and his family members, 13. The following day after the date of its establishment, C, which was deposited in the above company's name, made a certificate of payment of shares to this amount under the above company's name, and submitted it to the Daegu District Court and submitted it for the registration of capital increase, and the defendant immediately withdrawn it over the same 20, 3050, 2840,285.

3. The crime of provisional payment under Article 628 of the Commercial Act is an intentional crime, and the purpose of legislation is to faithfully improve the company's capital. However, in this case, the defendant's payment of stock price to the above company cannot be viewed as having been made as an intention to complete only the registration of capital increase and immediately withdraw the company's paid-in capital after completing the registration of capital increase, rather than to actually contribute to the payment of stock price. The defendant knew that each time he withdraws the paid-in capital, the amount of the company's paid-in capital should be actually reduced. Thus, the defendant did not have any intention to commit a crime of provisional payment since the defendant did not have any intention to commit a crime of provisional payment. The defendant's withdrawal of the above stock price and arranged it to borrow from the company, and the defendant and his family kept the accounts of the above company's members and sold it to the general public or members, and it does not affect the establishment of the crime of provisional payment because it is merely the means of crime or circumstances after the crime.

Therefore, the decision of the court below that determined the defendant's act to be governed by Article 628 (1) of the Commercial Act shall be justified, and there shall be no errors in the misapprehension of legal principles as to the crime of soliciting the payment of shares.

Therefore, there is no reason to discuss.

As to the Prosecutor’s Grounds of Appeal

In light of the records, the court below's finding of facts as to the portion of innocence can also be accepted, and there is no violation of the rules of evidence against the rules of evidence.

There is no reason for this issue.

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

Justices Final Young-young (Presiding Justice)