{"caseNo": "2014Ma2239", "issue": "On what criteria is it determined whether submission may be refused on the ground that a document was created for internal use or contains personal information or occupational secrets, and whether a production order is necessary?", "answer": "Whether a document is a self-use document is judged objectively by comprehensively considering the purpose of creation and the nature of the information, among other matters; submission cannot be refused on the sole ground of personal information, and occupational secrets must also have value worth protecting. Even where no ground for refusal exists, the propriety of a production order must be judged by considering the necessity of the evidence, the possibility of substitution, and the benefits and disadvantages arising from submission.", "disposition": {"value": "partial reversal and remand", "quote": "The portion of the decision dismissing the applicant's claim as to each document is reversed, and this part of the case is remanded to Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "The disadvantages arising from disclosure of the secret and the discovery of substantive truth and fairness of trial achieved thereby must be weighed against each other by considering all circumstances."}, "factors": ["The purpose of creating the document", "The information falling within the stated content", "The circumstances under which the document came into possession", "Whether materials can be obtained from other documents", "The content and extent of the disadvantages suffered by the possessor of the document as a result of the information being disclosed"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2015Ma4174 decided December 21, 2015 (Supreme Court Decisions (Collection) 2016, 267)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must the specific disadvantages arising from submission of a document reach before they take precedence over the benefit of discovering substantive truth?", "batch": "b01", "translatedFrom": "ko"}
{"caseNo": "2019Da222140", "issue": "Can facts found in the reasoning of a final and conclusive judgment in another civil case be recognized as facts notorious to the court without the submission of evidence or allegations by the parties?", "answer": "While the existence of another final and conclusive judgment may be so regarded, the facts constituting its reasoning cannot be treated as facts notorious to the court. The determination of the court below, which recognized those facts as facts notorious to the court even though the relevant judgment was never submitted in evidence and the parties made no allegations regarding it, is erroneous.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the main courthouse of Gwangju District Court."}, "standard": {"value": "Application to the facts", "quote": "A case in which the determination of the court below, which treated this as a 'fact notorious to the court' even though, in the first instance and in the court below in the case at hand, the judgments of other lower courts were never submitted in evidence and the parties made no allegations regarding them, was held to involve a misapprehension of legal principles."}, "factors": ["The facts constituting the reasons for that judgment", "The contents of other evidence submitted in the civil trial at hand", "The judgments of other lower courts were never submitted in evidence, and", "Even though the parties made no allegations regarding them"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2009Da69531 decided January 14, 2010"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the relevant final and conclusive judgment has been submitted in evidence, what specifically are the particular circumstances that would preclude accepting that finding of fact?", "batch": "b01", "translatedFrom": "ko"}
{"caseNo": "2016Da268848", "issue": "Where a third party has suffered loss due to a public official's violation of a duty arising from his or her duties and an accounting auditor's negligent audit, under what requirements and proof is each liability for damages recognized?", "answer": "Adequate causation, taking into account the protective purpose of the statutes and other norms, is required between the public official's violation of duty and the loss, while the auditor's violation of the duty of care is judged in principle primarily by reference to the audit standards, and the claimant must prove the omission of material matters or false entries. In this case, where the auditor requested correction of errors, further examination is required as to whether the final report and other documents were corrected and as to the reasonableness and appropriateness of that process.", "disposition": {"value": "partial reversal and remand", "quote": "The portion of the judgment of the court below finding against Defendant Anjin Accounting Firm is reversed, and this part of the case is remanded to Seoul High Court."}, "standard": {"value": "states requirements", "quote": "There must be adequate causation between the public official's act violating a duty arising from his or her duties and the third party's loss, and"}, "factors": ["The purpose of statutes and other codes of conduct imposing the duty arising from the official's duties", "Audit standards", "Sufficient and appropriate audit evidence", "Whether the content was reflected in and corrected in the final audit report, the final financial statements, etc.", "The reasonableness and appropriateness of that process"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2008Da36930 decided January 13, 2011 (Supreme Court Gazette, 2011, 293)"}, "burden": {"value": "The party asserting it", "quote": "The party claiming damages must prove that the auditor failed to state material matters in the audit report or made false entries therein."}, "openQuestion": "To what extent must the measures taken after the request for correction of errors be confirmed before the auditor can be recognized as having fulfilled the ordinary duty of care?", "batch": "b01", "translatedFrom": "ko"}
{"caseNo": "2013Do11650", "issue": "Does finding the defendant guilty by accepting the credibility of prosecutorial statements that the political funding donor recanted in court exceed the limits of the principle of free evaluation of evidence?", "answer": "The majority opinion held that, insofar as it does not contravene the laws of logic and experience, the admission and evaluation of Evidence fall within the free evaluation of the judge. In this Case, it found no error in the judgment below, which accepted the credibility of the prosecutorial statements after examining circumstances making the in-court statements difficult to believe and other Evidence.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "Application to the facts", "quote": "A case holding that the judgment below, which found all of the facts charged guilty by comprehensively considering, among others, B's prosecutorial statements, contained no error such as exceeding the limits of the principle of free evaluation of evidence."}, "factors": ["The rationality of the content of the statement itself", "Objective reasonableness", "Consistency before and after", "Existence or absence of interest", "Whether the credibility of the statement can be corroborated by other objective Evidence or circumstantial facts"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2007Do1755 decided May 29, 2008 (Gong 2008Ha, 946)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must irregularity in the process of collecting statements reach before the credibility of prosecutorial statements must be denied even under the standard of the majority opinion?", "batch": "b01", "translatedFrom": "ko"}
{"caseNo": "2006Da16758", "issue": "In an action for damages for stock investment losses caused by false statements in a business report, what standards govern the commencement date of the claim period, proof of causation of the loss, calculation of the amount of loss, and limitation of liability?", "answer": "The claim period runs from the time the false statements or omissions are actually recognized; the reliance of a general investor on the report is acknowledged, and the listed company, among others, must prove the absence of causation. Losses arising from fluctuations [attributable to factors other than the unlawful act] after the formation of a normal stock price are excluded absent special circumstances, and comparative negligence (offsetting plaintiff's fault) or limitation of liability on grounds of equity may be applied, but an investor's negligence cannot be recognized merely on the basis of known financial problems or a delayed sale.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Proof to the effect that it is unclear whether the cause of that decline in price was the unlawful act at issue, such as the false disclosure, is not sufficient to hold that the presumption of the above amount of loss is destroyed."}, "factors": ["The time when the fact of a false statement or an omission in the business report is actually recognized", "The fact that the whole or part of the loss arose from other factors than unlawful acts such as false disclosure", "Once all portions inflated by such false information have been removed and a normal stock price has thereby been formed", "The fact that the victim is at fault for contributing to the occurrence and expansion of the loss", "Changes in the overall circumstances of the enterprise or the stock market"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2006Da81981 decided September 21, 2007 (Supreme Court Gazette 2007, Vol. 2, 1656)"}, "burden": {"value": "the opposing party", "quote": "The listed company, among others, must prove the absence of such causation in order to be exempted from liability."}, "openQuestion": "By what specific materials and methods should the date on which all portions inflated by the false information were removed and a normal stock price was formed be determined?", "batch": "b01", "translatedFrom": "ko"}
{"caseNo": "2016Do348", "issue": "When seizing electronic information of unclear submission scope from a mobile phone owned by the suspect that was voluntarily submitted by a third party, what are the permissible scope and Procedure, and what is the admissibility of evidence of evidence obtained beyond that scope?", "answer": "If the scope of submission is unclear, the scope of seizure is limited to electronic information having a concrete and individualized connection with the criminal suspicion facts that motivated the voluntary submission, and, absent special circumstances, the suspect's right to participate and procedural rights such as service of a list of seized items must be secured. Evidence obtained without a warrant beyond that scope lacks admissibility of evidence, and its illegality is not cured by a later warrant or consent to the evidence.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Where the subject and scope of a seizure of electronic information in accordance with the will of the person making the voluntary submission are not clear or cannot be ascertained, the electronic information becomes subject to seizure only insofar as it is related to the criminal suspicion facts that motivated the seizure following the voluntary submission and has at least minimal probative value to prove the same."}, "factors": ["The content of the criminal suspicion facts and the subject of the investigation", "The course of the investigation", "The process of the voluntary submission", "Whether the person whose items were seized expressly indicated an intention not to participate, or", "There is a considerable interval between the times of occurrence of the crimes, and the victims and the mobile phones used in the commission of the offenses are also entirely different"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court En Banc Decision 2011Mo1839, decided July 16, 2015 (Supreme Court Gazette 2015Ha, 1274)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where a third party has clearly stated the scope of the submission, how far can that intention determine the scope of the seizure of the suspect's electronic information?", "batch": "b02", "translatedFrom": "ko"}
{"caseNo": "2002Do4229", "issue": "Where a loss arises from a business judgment of a corporate executive, under what standard should intent for the crime of occupational breach of trust be recognized?", "answer": "Intent to commit breach of trust should be recognized only where, in light of all relevant circumstances such as the background and motive leading to the business judgment, the content of the business, the economic situation, and the probabilities of loss and of gain, the act was a deliberate act carried out under the recognition of a pecuniary benefit for oneself or a third party and of a loss to the principal. Liability cannot be imposed merely on the basis of the occurrence of a loss or a breach of the duty of care, and in this case it is difficult to categorically conclude that there was a breach of duty or intent to commit breach of trust in the undertaking of the surety insurance contract.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "In light of all relevant circumstances such as the background and motive leading to the business judgment in question, the content of the business that was the subject of the judgment, the economic situation in which the company was placed, and the probability of the occurrence of a loss and the probability of the acquisition of a gain,"}, "factors": ["the background and motive leading to the business judgment in question", "the content of the business that was the subject of the judgment", "the economic situation in which the company was placed", "the probability of the occurrence of a loss and the probability of the acquisition of a gain"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2003Do3516 decided October 10, 2003"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where a manager recognized the risk of loss yet expected a benefit to the company, what specific circumstances divide dolus eventualis (conditional intent) for breach of trust from negligence?", "batch": "b02", "translatedFrom": "ko"}
{"caseNo": "2022Do8824", "issue": "By what legal standards and requirements is the admissibility of evidence of a record of questioning prepared by a tax public official in charge of a tax violation investigation recognized?", "answer": "Unless there is an express provision, a tax public official cannot be regarded as a judicial police officer, and a tax violation investigation is also, absent special circumstances, an administrative procedure; accordingly, the admissibility of evidence of the record of questioning is determined under Article 313, not Article 312, of the Criminal Procedure Act. Genuine establishment must be proven by the statements of the preparer or the declarant made at a preparatory hearing for trial or at a trial date, and the statement must have been made in a particularly reliable state; and when determining that state, whether the essential content of the provisions guaranteeing procedural rights has been infringed must also be taken into consideration.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Admissibility of evidence is recognized only where genuineness of establishment is proven and, further, the statement was made in a particularly reliable state."}, "factors": ["there is almost no room for false intervention in the preparation of the content of the statement or of the record or document, and", "concrete and external circumstances guaranteeing the reliability and voluntariness of the content of the statement", "notification of the right to remain silent, among others", "guarantee of the right to assistance of an attorney, among others"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specifically are the special circumstances that would enable a tax violation investigation to be regarded as part of criminal proceedings?", "batch": "b02", "translatedFrom": "ko"}
{"caseNo": "2020Do16420", "issue": "Where, after the commission of a crime, statutes are amended so that the crime is no longer established or the punishment becomes lighter, is reflective consideration of the prior punishment necessary in applying the new law?", "answer": "Where the penal statute itself, or a statute authorized or delegated thereby, has been amended, unless there is a transitional provision maintaining the prior punishment, the new law applies in principle without inquiring into whether reflective consideration is required. An amendment of another statute must be founded principally on a change in the criminal-law perspective directly related to the establishment and punishment of the crime; the expiry of a predetermined valid period does not constitute an amendment of statutes; and to this case of drunk driving of an electric kickboard, the new law providing a lighter punishment must be applied.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul Western District Court."}, "standard": {"value": "states requirements", "quote": "Without inquiring into whether the amendment was made in reflective consideration that the designation of the conduct as a crime and its punishment under the prior statute were unjust or that the punishment was excessive, Article 1 paragraph (2) of the Criminal Act and Article 326 subparagraph 4 of the Criminal Procedure Act apply in principle."}, "factors": ["a transitional provision providing for the maintenance of criminal punishment for violations of the prior statute", "amendment of the penal statute itself or of a statute authorized or delegated thereby", "provided that it does not exceed the limits of delegated legislation", "a change in the criminal-law perspective directly related to the establishment and punishment of a crime", "a statute that itself specified its valid period as a concrete date or period and provided for the lapse of its effect"], "precedent": {"value": "change of precedent", "quote": "Supreme Court Decision 62Do257 decided January 31, 1963 (Case Collection 11-1, Criminal 9) (changed)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where criminal-policy reasons and non-criminal policy reasons have both operated in the amendment of another statute, how is it determined whether a change in the criminal-law perspective is the principal ground?", "batch": "b02", "translatedFrom": "ko"}
{"caseNo": "2018Do3619", "issue": "Can Bitcoin acquired through a serious crime be confiscated as intangible property having pecuniary value?", "answer": "Intangible property having pecuniary value acquired through a serious crime under the Act on Regulation and Punishment of Criminal Proceeds Concealment may also be confiscated. The Bitcoin in this case was acquired through a serious crime, has economic value and tradeability, was actually paid as consideration, and the subject of confiscation has been identified; accordingly, it can be confiscated.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "Application to the facts", "quote": "A case holding that, because Bitcoin must be regarded as intangible property having pecuniary value, the finding of the court below—that the Bitcoin acquired by the defendant could be confiscated because the Bitcoin subject to confiscation was identified—was proper."}, "factors": ["acquired through a criminal act falling within a serious crime", "representing economic value digitally so as to enable electronic transfer, storage, and trading", "the point that Bitcoin was received as consideration and treated as having pecuniary value", "the fact that the Bitcoin subject to confiscation was identified"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where Bitcoin constituting criminal proceeds has been mixed with lawfully acquired Bitcoin, how should the subject of confiscation be identified?", "batch": "b02", "translatedFrom": "ko"}
{"caseNo": "2017Du66602", "issue": "Can prior notice and hearing of opinions for a new order to take measures for waste disposal be omitted on the ground that a conviction for noncompliance with a previous order to take measures for waste disposal has become final and conclusive?", "answer": "It may be omitted only where the hearing of opinions cannot affect whether the administrative agency makes a disposition or the degree of the disposition. It is difficult to categorically conclude that a new ground for disposition has been proven by the previous conviction alone, and since an order to take measures for waste disposal is a discretionary act, in this case it cannot be omitted.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "It must be understood to mean a case in which the hearing of opinions cannot affect whether the administrative agency makes a disposition or the degree of the disposition."}, "factors": ["where only 'part' of the facts underlying the disposition has been proven", "where, depending on the hearing of opinions, whether the administrative agency makes a disposition or the degree of the disposition may change", "as there is a temporal gap, room for change of circumstances", "an order to take measures for waste disposal falls within a discretionary act"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2016Du41811 decided October 27, 2016 (Supreme Court Bulletin 2016 (Second Half), 1824)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What is the specific boundary at which a procedural defect of omitting prior notice and hearing of opinions becomes a ground for nullity rather than a ground for revocation?", "batch": "b03", "translatedFrom": "ko"}
{"caseNo": "2017Do13263", "issue": "Where relevant information is selected and seized as image files, by what standards are the right to participate in the subsequent analysis, the identification of the list of seized items, and the admissibility of evidence of electronic documents determined?", "answer": "If image files are submitted and seized after relevant information has been selected, the seizure procedure is completed, so there is no need to again guarantee an opportunity to participate in the subsequent analysis at the office, and the detailed list of seized information must specify the file particulars. An electronic document must be proven to be the original or a copy made without artificial modification, and identity with the original must be specifically asserted and proven by the prosecutor.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Busan High Court."}, "standard": {"value": "states requirements", "quote": "Where it is proven to be the original, or where it is a copy copied from the original, it must be proven to be a copy reproduced with the contents of the original intact, without artificial modification such as editing in the course of copying, and"}, "factors": ["selection of information related to the suspected criminal facts", "the file particulars of the information being identified", "testimony or statements of persons involved in the creation, transmission, and storage of copies or printouts of electronic document files", "comparison of the hash value immediately after creation of the original or copy file", "results of verification or expert examination of electronic document files"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2013Do2511 decided July 26, 2013 (Supreme Court Bulletin 2013 (Second Half), 1659)"}, "burden": {"value": "prosecutor", "quote": "Since such identity with the original constitutes a requirement for admissibility of evidence, the prosecutor must specifically assert and prove its existence."}, "openQuestion": "If the testimony or verification results additionally submitted in the remand proceedings are considered together, is the identity with the original of the electronic documents in this case proven?", "batch": "b03", "translatedFrom": "ko"}
{"caseNo": "2013Do2511", "issue": "In a National Security Act case, by what criteria are the admissibility of evidence of non-public testimony and printouts of electronic information, the examination of documentary evidence in the form of physical evidence, and the constitutionality of the national security secrets provision determined?", "answer": "Non-public testimony for which there is no ground for prohibiting disclosure, or the ground for which cannot be ascertained, has no admissibility of evidence; printouts of electronic information must have their identity and integrity guaranteed; and documentary evidence in the form of physical evidence must undergo presentation together with reading aloud, or notice of contents or perusal procedures substituting therefor. If national secrets are restrictively interpreted as those possessing non-disclosability and substantial value warranting protection, the provision in question does not violate the principle of clarity (definiteness), the principle of culpability, the principle of equality, and the like.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "The identity between the content stored in the original information storage medium and the printed document must be recognized, and to this end, the circumstance that the original information storage medium was not altered from the time of seizure to the time of printing the document, that is, its integrity, must be guaranteed."}, "factors": ["Where the grounds for the nondisclosure decision cannot be ascertained", "The circumstance that the original information storage medium was not altered from the time of seizure to the time of printing the document", "Mechanical accuracy of the computer, reliability of the program", "The procedures of reading aloud, notice of contents, or perusal, and the procedure of presentation as the method of examining physical evidence", "Substantial value warranting protection as a secret, in that there is a risk of posing a danger to the security of the State"], "precedent": {"value": "follows existing precedent", "quote": "This is the established view of the Supreme Court since Supreme Court en banc judgment 97Do985 decided September 16, 1997."}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What are the specific limits where proof by a hash value verification document is recognized as manifestly difficult?", "batch": "b03", "translatedFrom": "ko"}
{"caseNo": "2009Da75291", "issue": "In rehabilitation proceedings, how are the requirements for avoiding the issuance of checks and repayment to specific creditors, the exceptions thereto, and the burden of proof as to bad faith determined?", "answer": "The bad faith of the recipient and of the creditor who received repayment is presumed, and each must prove good faith; the bad faith of the transferee must be proven by the administrator absent special circumstances. Where there are special circumstances such that the debtor's assets do not decrease through borrowing for a specific purpose and repayment, or where the social necessity and appropriateness of the act are recognized, avoidance may be excluded; however, the determination rejecting avoidance of the act of acquiring the checks in this case was erroneous.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed in the part in which the plaintiff lost, and this part of the case is remanded to Seoul High Court. The appeal is dismissed."}, "standard": {"value": "totality of circumstances", "quote": "It must be determined concretely, in light of the principle of good faith and the idea of equity, taking into account not only the subjective state of the rehabilitation company, such as the state of its assets and business at the time of the act and the purpose, intent, and motive of the act, but also, in the case of a repayment act, the source of the repayment funds, the relationship between the rehabilitation company and the creditor, and whether the creditor colluded with the rehabilitation company or exerted influence such as compelling the rehabilitation company to make repayment."}, "factors": ["The state of the assets and business of the rehabilitation company at the time of the act", "The subjective state of the rehabilitation company, such as the purpose, intent, and motive of the act", "The source of the repayment funds", "The relationship between the rehabilitation company and the creditor", "Whether the creditor colluded with the rehabilitation company or exerted influence such as compelling the rehabilitation company to make repayment"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2005Da22398 decided September 21, 2007"}, "burden": {"value": "The party asserting it", "quote": "Absent special circumstances, the burden of proving such bad faith of the transferee lies with the administrator exercising the right of avoidance against the transferee."}, "openQuestion": "If, upon remand, the specific circumstances of the issuance of the checks and the bad faith of the transferee are examined, will the exercise of the right of avoidance against Company B ultimately be recognized?", "batch": "b03", "translatedFrom": "ko"}
{"caseNo": "2008Da6755", "issue": "Can it be held proven that a fire was caused by the negligence of the employees of a certain company merely from a reasonable possibility that the fire was caused by a lit cigarette?", "answer": "Since proof of facts in a civil action requires a high degree of probability such that an ordinary person would not harbor doubt, a mere reasonable possibility that a lit cigarette was the cause is insufficient to recognize the negligence of those employees. Since the burden of proving that such negligence was the cause of the fire lies with the plaintiff, the determination of the court below rejecting the plaintiff's contention was affirmed.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "Application to the facts", "quote": "Such doubt alone is insufficient to recognize that it was caused by a lit cigarette smoked by the employees of Company A, and"}, "factors": ["Comprehensive review of all evidence in light of the rules of experience", "To such a degree that an ordinary person would not harbor doubt", "Reasonable possibility that the fire was caused by a lit cigarette", "That the cause of the fire lay in the negligence of the employees of Company A"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 89DaKa7730 decided June 26, 1990 (Supreme Court Gazette 1990, 1558)"}, "burden": {"value": "The party asserting it", "quote": "The burden of proving that the cause of the fire lay in the negligence of the employees of Company A lies with the plaintiff."}, "openQuestion": "If what additional circumstantial facts are proven, can a high degree of probability be recognized that the lit cigarette of those employees was the cause of the fire?", "batch": "b03", "translatedFrom": "ko"}
{"caseNo": "2007Do7257", "issue": "What are the conditions for recognizing admissibility of evidence for documents output from digital storage media and for the fact confirmation statement of a consul, and does Ilsinhoe constitute an enemy-benefiting organization under the National Security Act?", "answer": "The printed document must have its identity with the original and the reliability of the processing process guaranteed, and if it is to be used as testimonial evidence, the requirements under the hearsay rule must also be satisfied; and the portion of the consul's fact confirmation statement made for reporting purposes is not admissible in evidence. Although Ilsinhoe is recognized as possessing enemy-benefiting character, it did not reach the requisite organized body and therefore does not constitute an enemy-benefiting organization.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "The identity between the content stored in the original digital storage medium and the printed document must be recognized, and to this end, it must be guaranteed that the original digital storage medium was not altered from the time of seizure to the time of printing the document."}, "factors": ["Identity between the content stored in the original digital storage medium and the printed document", "Mechanical accuracy of the computer, reliability of the program", "Being intended for the purpose of reporting to superiors, etc., rather than for public attestation", "The number of its members, the manner of its formation, and its methods and history of activities", "A system for maintaining the internal order of the organization and for leading the organization"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 99Do2317 decided September 3, 1999 (Supreme Court Gazette 1999, Vol. 2, 2140)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where part of the custody records after seizure of the digital storage medium is missing, with what supplementary materials can the immutability of the original be recognized?", "batch": "b04", "translatedFrom": "ko"}
{"caseNo": "2005Mo472", "issue": "By what criteria are the novelty of evidence and the clarity warranting recognition of not guilty determined in a retrial claimed by the defendant?", "answer": "If the defendant was negligent in failing to submit the evidence in the litigation proceedings of the final and conclusive judgment, novelty is denied. Clarity is determined by evaluating the new evidence together with existing evidence that is organically and closely related to and contradicts it, and by assessing whether there is a high degree of probability such that the final and conclusive judgment cannot be maintained; the results of the semen test in this case do not meet that standard.", "disposition": {"value": "dismissal", "quote": "The re-appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "If a high degree of probability is recognized such that the judgment cannot be maintained as it is, that new evidence falls under the 'clear evidence' of the aforesaid Article."}, "factors": ["Where there is negligence in failing to submit such evidence", "Those that are organically and closely related to and contradict the newly discovered evidence", "A high degree of probability such that the judgment cannot be maintained as it is", "That the offender cannot be definitively said to necessarily have azoospermia"], "precedent": {"value": "change of precedent", "quote": "Supreme Court Decision 88Mo38 decided February 19, 1990 (Supreme Court Gazette 1990, 1091) (modified)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "By what specific criteria can the organic close relation and the contradiction between the new evidence and the existing evidence be distinguished?", "batch": "b04", "translatedFrom": "ko"}
{"caseNo": "2005Do7288", "issue": "When applying Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes to the obtaining of real estate by fraud, must the amount of encumbrances such as a maximum amount mortgage be deducted from the market price?", "answer": "Absent special circumstances, the basis must be the actual exchange value calculated by deducting, from the market price of the real estate in a state free of any encumbrance, the amount of the secured claim within the maximum amount of the maximum amount mortgage, the amount of the execution claim subject to attachment, the amount of the claim to be preserved within the amount claimed under provisional attachment, and the like. Since this amount constitutes an element of the aggravated punishment, it must be calculated strictly and prudently.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Where the value of the property or pecuniary benefit obtained by fraud is 500 million won or more, or 5 billion won or more, forms part of the constituent elements of the offense, and"}, "factors": ["The amount equivalent to the market price of the real estate in a state free of any encumbrance", "The amount of the secured claim within the maximum amount of the maximum amount mortgage", "The amount of the execution claim subject to attachment", "The amount of the claim to be preserved within the amount claimed under provisional attachment", "The principle of proportionality between crime and punishment, and the principle of culpability that punishment is based on responsibility and must be proportionate to that responsibility"], "precedent": {"value": "change of precedent", "quote": "Supreme Court Decision 2003Do1859 decided September 5, 2003 (modified)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where only some of several parcels of real estate subject to common collateral were obtained by fraud, how must the amount of the secured claim be allocated and deducted?", "batch": "b04", "translatedFrom": "ko"}
{"caseNo": "2021Da262905", "issue": "How should adequate causation and the specific amount of damages be determined in a claim for damages arising from a sales advertisement that incorrectly guided consumers on tax reductions?", "answer": "It suffices that adequate causation is recognized on the basis of the relevant consumer from a legal and normative perspective, and it cannot be negated merely by the circumstance that other causes, such as the consumer's negligence, contributed. Where the occurrence of damage is recognized but proof of the specific amount is difficult in light of the nature of the case, the amount of damages may be determined by comprehensively considering all circumstantial facts; accordingly, the relevant portion of the judgment of the court below that dismissed the relevant claim was reversed.", "disposition": {"value": "partial reversal and remand", "quote": "The portion of the judgment of the court below concerning the claim for damages relating to acquisition tax, etc. is reversed, and this part of the case is remanded to Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "Whether adequate causation exists must be determined by comprehensively considering the probability of the occurrence of the result, the manner of the wrongful act, and the nature of the infringed interest."}, "factors": ["The probability of the occurrence of the result", "The manner of the wrongful act and the nature of the infringed interest", "The circumstances under which the sales contract was concluded, and the circumstances at the time", "The effect thereof on whether the sales contract was concluded and on the determination of the sales price", "The circumstance that Company A did not verify the matter in advance with the competent authorities or the like, even though the tax obligation is prescribed by statutes and regulations and can be verified at any time"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2008Da19355 decided August 20, 2009 (Supreme Court Bulletin 2009Ha, 1512)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "On remand, at what amount should the specific amount of damages be set, reflecting the effect the advertisement had on the conclusion of the contract and the determination of the price and the buyer's failure to verify?", "batch": "b04", "translatedFrom": "ko"}
{"caseNo": "2018Du47189", "issue": "Does a registered newspaper business operator who has a civil dispute over the use of a newspaper name, among other matters, have standing as a plaintiff to challenge another business operator's acceptance of a status succession report and change registration?", "answer": "The status of a newspaper business operator by virtue of registration is a legal interest distinct from the right to use a name under private law, and even where a dispute exists concerning the use of the name, it continues to exist until a court determination is made. Since a disposition against another business operator renders that status unstable, standing as a plaintiff to challenge it is recognized for the registered newspaper business operator concerned.", "disposition": {"value": "partial reversal and remand", "quote": "The portion of the judgment of the court below in which the plaintiff lost is reversed, and this part of the case is remanded to Gwangju High Court."}, "standard": {"value": "states requirements", "quote": "In an action for revocation of an administrative disposition, standing as a plaintiff is determined not by whether one is the counterparty to the disposition, but by whether one has a legal interest in seeking its revocation."}, "factors": ["Direct and concrete interests protected by the statute serving as the basis of the disposition in question", "The legal nature of newspaper registration", "The content and purport of the prohibition on dual registration of the same name", "Until a court determination is made, Company B's status under the Newspaper Act exists", "That which renders the status under the Newspaper Act unstable"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 99Du8565 decided September 28, 2001 (Supreme Court Bulletin 2001Ha, 2367)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Once standing as a plaintiff is recognized, are there, on the merits, grounds for invalidity or revocation in the acceptance of the business operator's status succession report and the change registration?", "batch": "b04", "translatedFrom": "ko"}
{"caseNo": "2017Do18697", "issue": "What limits apply when academic expression is evaluated as an assertion of fact in the offense of defamation, and who bears the burden of proof that the expression falls outside the protected scope of academic freedom?", "answer": "Absent special circumstances, such as a violation of research ethics, academic expression is in principle a legitimate research act, and an assertion of fact by implication cannot be recognized by hastily making firm conclusions about hidden backgrounds or underlying circumstances. The prosecutor must prove that the expression in question does not fall within the protected scope of academic freedom.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Unless there are special circumstances — such as that an act of academic expression is the result of conduct that violates basic research ethics or seriously departs from the range customarily tolerated in the relevant academic field so that it is difficult to regard it as an academic process, or that it infringes the rights of others through expressions unrelated to the thesis or context — it is appropriate to regard it in principle as a legitimate act for academic research."}, "factors": ["Violates basic research ethics, or", "Seriously departs from the range customarily tolerated in the relevant academic field,", "Infringes the rights of others through expressions unrelated to the thesis or context", "The purport of the expression as a whole", "Facts reconstituted within a continuous process of subsequent research, review, and criticism"], "precedent": {"value": "follows existing precedent", "quote": "Where, in light of the purport of the expression as a whole, the statement was made in a manner implying that a fact may exist, it has been recognized as an assertion of fact."}, "burden": {"value": "prosecutor", "quote": "The prosecutor must prove that the expression in question does not fall within the area protected as academic freedom."}, "openQuestion": "What is the specific boundary for recognizing that academic expression has seriously departed from the range customarily tolerated in the relevant academic field?", "batch": "b05", "translatedFrom": "ko"}
{"caseNo": "2016Da275679", "issue": "When does the authority of a minority shareholder, who has obtained a court's permission to convene a general meeting without a period being fixed for convening, cease to exist?", "answer": "If the general meeting is not convened within a considerable period from the date of the decision granting permission to convene, the authority ceases to exist absent special circumstances. Whether a considerable period has elapsed is determined by considering the purpose of the convening and the circumstances under which permission was granted, the period elapsed, changes in circumstances, and the reasons for the belated convening, among others.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "Whether a considerable period has elapsed since the decision granting permission to convene must be determined by considering the purpose of convening the general meeting, the circumstances under which the decision granting permission to convene was rendered, the period between the decision granting permission to convene and the time the general meeting was convened, whether the circumstances underlying the decision granting permission to convene have changed, and the circumstances and reasons for the belated convening of the general meeting, among others."}, "factors": ["The purpose of convening the general meeting", "The circumstances under which the decision granting permission to convene was rendered", "The period between the decision granting permission to convene and the time the general meeting was convened", "Whether the circumstances underlying the decision granting permission to convene have changed", "The circumstances and reasons for the belated convening of the general meeting"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2000Da9086 decided March 15, 2002 (Supreme Court Bulletin 2002Sang, 864)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What special circumstances would mean that a minority shareholder's authority to convene a general meeting does not cease to exist even though a considerable period has elapsed?", "batch": "b05", "translatedFrom": "ko"}
{"caseNo": "2015Ma4027", "issue": "In the certification procedure of a securities-related class action, what is examined, and how should the scope of the class, commonality, and the efficiency requirement be determined?", "answer": "The representative party makes a prima facie showing of the requirements for certification of the action; liability on the merits is in principle not subject to examination, but the underlying acts (e.g., the acts underlying the claim) and the like may be examined to the extent necessary for determining the commonality of issues. The class must be identified with sufficient clarity to determine whether a given person is a member, but absent special circumstances the method chosen by the representative party may be followed; material facts in the grounds for the claim must be common, and the class action must be more economical than other means of relief.", "disposition": {"value": "dismissal", "quote": "The re-appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "The requirement is satisfied if material facts among the grounds for the claims of all members are common, and the requirement cannot be regarded as deficient merely because slightly different facts exist in the claim of each member or because defenses exist against individual members."}, "factors": ["It must be clear enough that, based on the relevant materials, it can be determined whether a specific person is a member.", "That the method chosen by the representative party is particularly unreasonable, or", "That it is impossible to determine the scope of the class by that method,", "If material facts among the grounds for the claims of all members are common,", "In terms of litigation economy, the class action must be more economical than other means of relief"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "The party asserting it", "quote": "In the certification procedure for the action, the subject of the representative party's prima facie showing is the requirements for certification of the action, and"}, "openQuestion": "What are the specific criteria for finding that the method of identifying the class chosen by the representative party is particularly unreasonable?", "batch": "b05", "translatedFrom": "ko"}
{"caseNo": "2015Do12633", "issue": "How should it be determined whether a support transaction between affiliate companies of the same corporate group constitutes a reasonable business judgment for which intent, as an element of the offense of breach of trust, is difficult to recognize?", "answer": "Liability for breach of trust is not excluded merely on the ground that the transaction constitutes support for affiliate companies; the circumstances and motive of the business judgment, common interests, the reasonableness of the support decision, the lawfulness of the method, and the expectation of compensation, among others, must be sufficiently considered. If, upon comprehensive consideration, the act is recognized as falling within the scope of discretion of a reasonable business judgment, it is difficult to recognize it as an intentional act carried out under the awareness of causing damage to the principal.", "disposition": {"value": "partial reversal and remand", "quote": "The portion of the judgment of the court below finding guilt is reversed, and this part of the case is remanded to Busan High Court."}, "standard": {"value": "totality of circumstances", "quote": "If, upon comprehensively considering the above circumstances, it is recognized that the support transaction between the affiliate companies in question was carried out within the scope of discretion of a reasonable business judgment, such an act is difficult to recognize as an intentional act carried out under the awareness of causing damage to the principal."}, "factors": ["Whether the affiliate companies giving and receiving support are, in substantive aspects such as capital and operations, combined in a relationship pursuing common interests and synergy effects", "Whether the support transaction between such affiliate companies is intended to promote the common interests of the affiliate companies belonging to the corporate group, including the supporting affiliate company, and is not for the benefit of a specific person or a specific company alone", "Whether the selection of the supporting affiliate company and the scale of support, among others, were determined objectively and reasonably with sufficient consideration of the relevant affiliate company's intent or capacity to provide support, among others", "Whether the specific support transaction was carried out by normal and lawful means", "Whether it was a situation in which appropriate compensation commensurate with the burden or risk arising from the support transaction could objectively be expected for the affiliate company providing the support"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2002Do661 decided July 8, 2004"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What are the specific criteria for evaluating whether the compensation expected for the supporting affiliate company is commensurate with the burden or risk of the support transaction?", "batch": "b05", "translatedFrom": "ko"}
{"caseNo": "2014Du9349", "issue": "Even where the information is not subject to non-disclosure, if the request for information disclosure constitutes a clear abuse of rights, may the exercise of the claim be restricted?", "answer": "A request for information disclosure is in principle broadly permitted, but it is not permitted where, with no intention of acquiring or utilizing the information, one seeks to obtain unjust enrichment or solely to harass the public official in charge, amounting to a clear abuse of rights. The claim in this case was found to constitute an abuse of rights, as there is a considerable room to view it as aimed at monetary gain through litigation costs or at avoiding forced labor through appearing in court from prison while imprisoned.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed insofar as it ruled against the defendant, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Where it is clear that the matter constitutes an abuse of rights, it is right not to permit the exercise of the right to request information disclosure."}, "factors": ["having absolutely no intention of acquiring or utilizing the relevant information,", "seeking to obtain unjust enrichment that cannot be tolerated under commonly accepted social norms, or", "for the sole purpose of harassing the public official in charge of the public institution,", "obtaining monetary gain by receiving litigation costs in an amount greater than the costs actually expended, or", "avoiding forced labor by attending argument hearings while imprisoned."], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where there is both a purpose of actually utilizing the information and a purpose of obtaining unjust enrichment, may the claim still be restricted as an abuse of rights?", "batch": "b05", "translatedFrom": "ko"}
{"caseNo": "2014Da235080", "issue": "By what criteria is the unlawfulness of collecting, for profit and without separate consent, personal information disclosed by the data subject and providing it to a third party determined?", "answer": "It is determined by comparatively weighing, in light of various circumstances, the personal legal interest of the data subject and the legal interest obtained through the processing of information, and it does not become unlawful merely because the purpose is profit-making. Objectively, processing within the scope consented to by the data subject requires no separate consent, and the provision of information in this case cannot be regarded as unlawful or as violating Article 15 or Article 17 of the Personal Information Protection Act.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed insofar as it ruled against defendant Ron&Be Inc., and this part of the case is remanded to the collegiate panel of the Seoul Central District Court."}, "standard": {"value": "totality of circumstances", "quote": "comprehensively considering various circumstances such as the nature and content of the interests that may be infringed upon by the processing of personal information,"}, "factors": ["whether the data subject is a public figure,", "the public nature and public interest of the personal information,", "the scope of the subjects to whom it was originally disclosed,", "the nature of the disclosed personal information,", "whether the provision of information bears a considerable relationship to the data subject's original purpose of disclosure,"], "precedent": {"value": "follows existing precedent", "quote": "[1][2] Supreme Court Decision 2012Da49933 decided July 24, 2014 (2014Ha, 1646)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where, even after the data subject demanded that the processing of the disclosed personal information cease, the same method of paid provision continued, how is the unlawfulness thereof determined?", "batch": "b06", "translatedFrom": "ko"}
{"caseNo": "2013Do6962", "issue": "How are the establishment and the number of offenses of market-misleading acts and unfair trading under the Financial Investment Services and Capital Markets Act, and the liability of the corporation to which the representative who committed them belongs, determined?", "answer": "The purpose of inducing trading is recognized even with mere awareness of the possibility, and actual misunderstanding or the occurrence of loss is not required, while whether unfair means and deception are present is determined according to the dangerousness of the act and the relevant circumstances. The relevant acts repeatedly committed under a single and continuing criminal intent constitute a single comprehensive offense, and the liability of the corporation under the joint penalty provision for the representative's violation is direct liability even in a one-person company.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "The degree of awareness of that purpose need not be an active desire or a definitive awareness, and awareness of the possibility suffices."}, "factors": ["whether the act is prohibited by statutes, regulations, or the like,", "the position of the actor,", "the motive and circumstances under which the actor came to make a particular statement or indication,", "whether it was done in good faith on the basis of reasonable grounds,", "the conduct taken by the actor after making such statement and the trend of the stock price,"], "precedent": {"value": "follows existing precedent", "quote": "[2][4] Supreme Court Decision 2011Do8109 decided October 27, 2011 (2011Ha, 2504)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What degree of temporal interval or change of purpose between repeated trading acts is required to deny a single and continuing criminal intent?", "batch": "b06", "translatedFrom": "ko"}
{"caseNo": "2008Do8137", "issue": "Where, in the absence of objective physical evidence, a substantial portion of the statements of the person who provided money has been rejected, what is required to find the receipt of money guilty on the basis of the remaining statements?", "answer": "Where the credibility of a substantial portion has been rejected, the credibility of the statements as a whole is also considerably undermined, so guilt cannot be found rashly on the basis of the remaining statements alone. Sufficient grounds to rely on the remaining portion, or special circumstances that dispel reasonable doubt such as corroborative evidence, are required, and in this case the determination finding credible the remaining portion concerning a small amount was unlawful.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed in its entirety insofar as it found Defendant 1, Defendant 2, Defendant 3, Defendant 5, Defendant 7, and Defendant 8 guilty, insofar as it found Defendant 2 not guilty of violation of the Act on the Aggravated Punishment of Specific Crimes (bribery), and insofar as it found Defendant 1 and Defendant 5 not guilty, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "There must exist special circumstances sufficient to dispel reasonable doubt."}, "factors": ["the reasonableness of the content of the statement itself,", "Objective reasonableness", "Consistency before and after", "whether there is an interest to be gained from that statement,", "whether efforts to escape from the state of distress thereby could have affected the statement,"], "precedent": {"value": "follows existing precedent", "quote": "[1] Supreme Court Decision 2000Do5701 decided June 11, 2002 (2002Ha, 1720), Supreme Court Decision 2005Do4202 decided February 14, 2008 (2008Sang, 407)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specific corroborative evidence must exist in order to dispel reasonable doubt as to the remaining statements of the person who provided money, whose credibility has been considerably undermined?", "batch": "b06", "translatedFrom": "ko"}
{"caseNo": "2007Do3061", "issue": "May seized items collected through an unlawful search and seizure, and secondary evidence obtained on the basis thereof, be used as evidence for a finding of guilt?", "answer": "The majority opinion held that, in principle, they cannot be used as evidence, but that in exceptional cases where, upon comprehensively considering the relevant circumstances, the substantive content of due process is not infringed and the exclusion of the evidence would run counter to the purpose of realizing criminal justice, they may be used. Secondary evidence, too, must be determined upon comprehensively considering factors such as the attenuation or severance of causation; accordingly, the judgment of the court below, which recognized the admissibility of the seized items without sufficiently examining the grounds of unlawfulness, was unlawful.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed in its entirety insofar as it found Defendant 1, Defendant 2, Defendant 4, Defendant 6, Defendant 7, and Defendant 9 guilty, insofar as it concerned, with respect to Defendant 1, the portion relating to the telephone records of 30 influential figures concerning Defendant 6, and, with respect to Defendant 2 and Defendant 9, the portion relating to the recommendation of the Jungmun-dong regional head, and this part of the case is remanded to the Gwangju High Court."}, "standard": {"value": "totality of circumstances", "quote": "all circumstances relating to procedural violations committed in the course of evidence collection by the investigative authorities"}, "factors": ["the purpose of the procedural provision and the content and degree of its violation,", "the specific circumstances of the violation and the possibility of avoiding it,", "the nature of the right or legal interest sought to be protected by the procedural provision, the degree of its infringement, and its relation to the defendant,", "the degree of relatedness, such as causation between the procedural violation and the evidence collection,", "the knowledge and intent of the investigative authorities,"], "precedent": {"value": "change of precedent", "quote": "Supreme Court Decision 68Do932 decided September 17, 1968 (change of precedent)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the specific circumstances of the search and seizure are revealed upon remand, may the respective evidence in this case exceptionally be granted admissibility of evidence?", "batch": "b06", "translatedFrom": "ko"}
{"caseNo": "2000Da46184", "issue": "If the judgment against the enforcement creditor in the action on the merits becomes final, is intent or negligence presumed with respect to the damage caused by the enforcement, and did the utility model right holder in this case rebut that presumption?", "answer": "If the judgment against the enforcement creditor in the action on the merits becomes final, unless there is special rebuttal evidence to the contrary, intent or negligence as to the damage caused by the enforcement of the preservative measure is presumed, and liability for compensation is borne. The presumption of negligence against the utility model right holder in this case cannot be said to have been rebutted.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "Application to the facts", "quote": "A case holding that the presumption of negligence of the utility model right holder as to damage caused by the enforcement of a provisional disposition cannot be said to have been rebutted."}, "factors": ["since it is executed at the creditor's responsibility merely upon a prima facie showing,", "if the enforcement creditor has suffered a final defeat in the action on the merits,", "the damage suffered by the debtor as a result of the enforcement of the preservative measure,", "unless there is special rebuttal evidence to the contrary,"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 98Da52513 decided April 13, 1999 (1999Sang, 874)"}, "burden": {"value": "the opposing party", "quote": "Unless there is special rebuttal evidence to the contrary, intent or negligence is presumed on the part of the enforcement creditor, and"}, "openQuestion": "What specific evidence to the contrary must the enforcement creditor who lost in the action on the merits present in order to rebut the presumption of intent or negligence?", "batch": "b06", "translatedFrom": "ko"}
{"caseNo": "99Du5870", "issue": "Where advance notice by administrative guidance and the party's promise of voluntary abandonment of the borehole preceded an infringing administrative disposition, may the statutory prior notice and the opportunity to state one's opinion be omitted?", "answer": "Unless it falls within an exception in which prior notice or the opportunity to state one's opinion may be omitted, an infringing disposition that did not undergo that Procedure is unlawful. Advance notice by administrative guidance and the promise of voluntary abandonment of the borehole alone do not constitute such an exception.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Unless it falls within an exceptional case in which prior notice need not be given or the opportunity to state one's opinion need not be afforded, the disposition is unlawful and cannot escape cancellation."}, "factors": ["Substantial grounds sufficient to recognize that the hearing of opinions is manifestly difficult or plainly unnecessary", "Advance notice by means of administrative guidance", "The party's promise of voluntary abandonment of the borehole"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Beyond advance notice by administrative guidance and the promise of voluntary abandonment of the borehole, what specific circumstances must be added before it falls within the exception where hearing opinions is plainly unnecessary?", "batch": "b07", "translatedFrom": "ko"}
{"caseNo": "90Do1815", "issue": "At what point in time is the amount of gain acquired through acts of blackmail calculated, and does it reflect subsequent change of circumstances and the realization or non-realization of the gain and its conditions and burdens?", "answer": "The amount of gain is calculated, based on the time of consummation of the crime, as the total value of the things or pecuniary benefits that became the object of unlawful acquisition. Even a subsequent change of circumstances that was foreseeable is not taken into account, and neither the ultimate realization or non-realization of such gain nor its conditions and burdens has any effect.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "it shall be calculated based on the time of consummation of the crime, and subsequent change of circumstances shall not be taken into account, and"}, "factors": ["The value of the things or pecuniary benefits that became the object of unlawful acquisition", "The time of consummation of the crime", "Subsequent change of circumstances", "Whether such gain will ultimately be realized", "Whether any conditions or burdens were attached thereto"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "By what method should the value of a pecuniary benefit for which there is no objective market price at the time of consummation be appraised?", "batch": "b07", "translatedFrom": "ko"}
{"caseNo": "2026Mu533", "issue": "Even where the party who received litigation support with respect to expert examination fees has lost and the ruling on bearing costs has become final, may the additional expert examination fees expended by the opposing party for a supplementary expert examination of the same purport be deleted in the procedure for determination of costs?", "answer": "Additional expert examination fees expended by the opposing party through applying for a supplementary expert examination of the same purport as the examination request matters of the supported party and the like may be deleted as an unjust cost item contrary to the purpose of litigation support. The necessity of costs is determined not solely by the outcome of victory or defeat, but in accordance with the concrete circumstances at the time of the act in question.", "disposition": {"value": "reversal and remand", "quote": "The order of the court below is reversed, and the Case is remanded to Seoul High Court."}, "standard": {"value": "states requirements", "quote": "In the procedure for determination of the amount of litigation costs, the said additional expert examination fees must be regarded as deletable as an unjust cost item contrary to the purpose of litigation support."}, "factors": ["Notwithstanding that litigation support was received with respect to expert examination fees,", "a supplementary expert examination of the same purport as the examination request matters of the supported party", "the concrete circumstances at the time of the act in question", "insofar as the examination matters and expert examination fees were determined by exercising discretion,", "the nature of administrative litigation concerning the right to receive social security benefits and the constitutional implications of the litigation support system"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision dated May 12, 2022, Case No. 2017Ma6274 (Gong2022Ha, 1099)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the additional expert examination includes, together with matters duplicating the existing expert examination request, matters that are independently necessary, how should the scope of deletion of the expert examination fees be determined?", "batch": "b07", "translatedFrom": "ko"}
{"caseNo": "2025Do4422", "issue": "May evidence seized beyond the scope of a warrant or in violation of the right to assistance of counsel, and the defendant's in-court statements based thereon, be used as evidence of guilt?", "answer": "A seizure outside the scope of a warrant is not cured by a subsequent warrant or consent to the evidence, and the seizure of documents prepared for legal advice in a criminal case is also unlawful absent consent or a grave public interest necessity. Illegally obtained evidence and in-court statements based thereon are excluded in principle, and the prosecutor must prove the concrete and special circumstances that exceptionally permit their use.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court."}, "standard": {"value": "totality of circumstances", "quote": "Whether a grave public interest necessity exists must be strictly determined by comprehensively considering various circumstances, such as the gravity of the criminal suspicion, the evidentiary value and importance of the seized items, and the degree of infringement of the right to assistance of counsel caused by the seizure."}, "factors": ["The gravity of the criminal suspicion", "The evidentiary value and importance of the seized items", "The degree of infringement of the right to assistance of counsel caused by the seizure", "the degree of relatedness, such as causation between the procedural violation and the evidence collection,", "If the defendant's in-court statement is evaluated as having been made independently of the primary evidence, such as where it originates from other independent evidence"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2007Do3061 decided November 15, 2007, en banc judgment (Supreme Court Gazette 2007ha, 1974)"}, "burden": {"value": "prosecutor", "quote": "The prosecutor must prove the existence of concrete and special circumstances sufficient to regard the case as falling under such an exceptional case."}, "openQuestion": "Where independent evidence and illegally obtained evidence have both influenced the defendant's in-court statement, what degree of independence is required to recognize a dilution or severance of causation?", "batch": "b07", "translatedFrom": "ko"}
{"caseNo": "2024Do19106", "issue": "In the course of seizure of electronic information, even where the person subject to seizure was asked to confirm whether he or she would participate, must a separate opportunity to participate be guaranteed to the attorney, and when may evidence collected in violation thereof be used?", "answer": "Because the attorney's right to participate is an independent right, separate from the person subject to seizure's intention to participate or intention not to participate, unless there are special circumstances, an opportunity to participate must be guaranteed to the attorney. Evidence collected in violation hereof and derivative evidence shall in principle be excluded; however, taking all circumstances of the procedural violation and the evidence collection into comprehensive consideration, admissibility of evidence may exceptionally be recognized.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "totality of circumstances", "quote": "Focusing on whether causation between evidence collection not following the procedure and secondary evidence collection has been diluted or severed"}, "factors": ["The nature and content of the process in which the procedural violation occurred", "the specific circumstances of the violation and the possibility of avoiding it,", "The nature of the right or legal interest protected by the procedure provision and the degree of its infringement", "The relatedness between the procedural violation and evidence collection", "the knowledge and intent of the investigative authorities,"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2020Do10729 decided November 26, 2020 (Gong 2021Sang, 171)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specific cases are included among the special circumstances in which a separate opportunity to participate need not be guaranteed to the attorney?", "batch": "b07", "translatedFrom": "ko"}
{"caseNo": "2024Do11686", "issue": "Under what circumstances does an act of an investment advisor recommending the purchase of securities without disclosing an interest concerning a third party's prior purchase and the possibility of a sale after recommendation constitute unfair trading?", "answer": "Just as with a recommendation concealing one's own interest, it may be so classified where there is a risk of harming the fairness, reliability, and efficiency of the capital market. The relationship with the third party, the circumstances of the investment and the party making the substantive investment judgment, the expected profits, and other matters are considered comprehensively, and the profits include personal profits such as the expectation of reputation or information exchange.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below, insofar as it concerns the guilty finding against Defendant 2 (including the portion acquitted on the merits), is reversed, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "Accordingly, it must be determined by comprehensively considering the circumstances, such as whether investment advisors, etc. obtain, or can objectively expect, any profit"}, "factors": ["The relationship between the investment advisors, etc. and the third party", "The circumstances under which the third party came to hold the securities in question", "Whether the investment advisors, etc. intended that the third party take profits in that process", "Who is the party making the substantive investment judgment", "Whether, thereby, the investment advisors, etc. obtain, or can objectively expect, any profit"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2014Do6910 decided March 30, 2017 (Case Report 2017 First Half, 930)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where there is only an expectation of reputation or information exchange, what degree of specific circumstances is required in order to recognize an objective expectation of profit and a risk of harming the fairness of the market?", "batch": "b08", "translatedFrom": "ko"}
{"caseNo": "2023Do8752", "issue": "After the execution of seizure and search has been completed, may copies remaining from a prior warrant, or copies containing unrelated information, be used again, and what procedures must be guaranteed in the execution of a warrant?", "answer": "A warrant whose execution has been completed cannot be reused even if its period of validity remains, and once selective seizure is completed, unrelated information must be deleted or discarded, and even in a new investigation, only the products derived from previously collected relevant information may be examined. Presentation of the warrant and service of a copy upon the suspect, advance notice of execution and guarantee of the right to participate, and service of the inventory of seized items must be complied with, and exceptions to notice must be strictly interpreted.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed as to the portion concerning the defendant's case (including the portion concerning the protective supervision order), and this portion of the case is remanded to Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Even if the period of validity of a search and seizure warrant previously issued remains, the warrant cannot be presented and a search and seizure conducted again thereby."}, "factors": ["The period of validity means the deadline by which execution may be commenced", "The warrant has already accomplished its purpose and thereby lost its effect", "Electronic information unrelated to the suspected facts", "On the premise that the possibility of destruction of evidence has been minimized", "Where the suspect or another person has expressly stated an intention not to participate, or where swiftness is required"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2018Do19782 decided June 1, 2023 (Supreme Court Gazette 2023Ha, 1162)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the selection of electronic information and its subsequent processing continue, at what point in time should the execution of the warrant be deemed terminated?", "batch": "b08", "translatedFrom": "ko"}
{"caseNo": "2023Do3626", "issue": "When a third party voluntarily submits electronic information that the third party copied onto its own storage medium, should the right to participate be recognized also for the holder of the power of management and disposition over the original electronic information?", "answer": "Taking into consideration comprehensively the circumstances of the copying and the state of possession and management, the circumstances of the submission, the possibility of securing the original, and the function of the right to participate, absent special circumstances there is no need to recognize the right to participate as far as the holder of the power of management and disposition over the original. The determination of the court below, which denied the admissibility of evidence on the ground that the defendant had had no opportunity to participate in respect of the copied electronic information submitted by the victims, is erroneous.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Busan High Court."}, "standard": {"value": "totality of circumstances", "quote": "comprehensively examining the meaning and function of the right to participate"}, "factors": ["The circumstances under which the copied electronic information was created and the state of possession and management thereof", "The circumstances under which the copied electronic information was voluntarily submitted", "The meaning and function of the right to participate", "The sole purpose of excluding the participation of the holder of the power of management and disposition over the original electronic information", "Special circumstances such that granting the opportunity to participate only to the person voluntarily submitting the copied electronic information is manifestly unfair"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Apart from the purpose of excluding the participation of the holder of the power of management and disposition over the original, under what circumstances would granting the opportunity to participate only to the submitter of the copied electronic information be manifestly unfair?", "batch": "b08", "translatedFrom": "ko"}
{"caseNo": "2023Do18971", "issue": "In the offense of fraud, where part of the consideration has been paid, how is the amount obtained by fraud calculated, and may aggravated punishment under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes be imposed even where the value of the pecuniary benefit cannot be specifically calculated?", "answer": "Even where part of the consideration has been paid, the amount of money obtained by fraud is not the difference remaining after deducting the consideration, but the entirety of the money delivered. However, the value serving as the standard for aggravated punishment must be calculated strictly and carefully, and where the value of the pecuniary benefit cannot be specifically calculated, Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes cannot be applied.", "disposition": {"value": "reversal and remand", "quote": "Reverses the judgment of the court below, and remands the case to the Suwon High Court."}, "standard": {"value": "states requirements", "quote": "Where the value of that benefit cannot be specifically calculated, Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which imposes aggravated punishment based on the value of the pecuniary benefit, cannot be applied."}, "factors": ["Delivery of money caused by deception", "The entirety of the money delivered", "Where the value of the property or pecuniary benefit obtained by fraud is 500 million won or more, or 5 billion won or more", "The principle of proportionality between crime and punishment, under which an appropriate balance must be achieved between crime and punishment", "The principle of culpability, under which punishment must be based on culpability and proportionate thereto"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court en banc Judgment 2005Do7288 decided April 19, 2007 (Supreme Court Gazette 2007, 923)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What evaluation methods and materials are required to recognize that the value of the pecuniary benefit can be specifically calculated?", "batch": "b08", "translatedFrom": "ko"}
{"caseNo": "2023Do13514", "issue": "Where married victims disposed of joint property and paid the investment funds into accounts in their respective names, may the offenses of fraud against them be regarded as a single comprehensive offense?", "answer": "Offenses of fraud against multiple victims are in principle separate crimes, but where the legal interest harmed is identical, they may constitute a single comprehensive offense. In this case, the identity of the legal interest harmed and a single comprehensive offense were recognized, considering, in addition to the attribution of rights under civil law, the commonality of the deception and the delivery of property, the process of property formation, and all other circumstances.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "Application to the facts", "quote": "A case in which the legal interest harmed by the offenses of fraud against the victims could be evaluated as identical, so that the offenses of fraud against them constituted a single comprehensive offense."}, "factors": ["The commonality of the defendant's act of deception against the victims", "The circumstances leading to the act of deception", "The commonality of the decision-making regarding the delivery of property", "The purpose and method of the delivery of property", "The circumstances following the act of deception"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2014Do16980 decided April 23, 2015"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where the victims delivered their own separate property, rather than joint property, pursuant to the same investment decision, can the identity of the legal interest harmed be recognized?", "batch": "b08", "translatedFrom": "ko"}
{"caseNo": "2023Do11395", "issue": "In a search and seizure concerning digital sex crimes, on the basis of what circumstances and as of what point in time should the objective relevance between electronic information relating to other digital sex crimes and the suspected facts be determined?", "answer": "An individualized connection must be examined in light of the content and nature of the suspected facts and the course of the search and seizure, and relevance may also be recognized in electronic information relating to crimes of the same type committed in temporal connection, crimes employing similar methods, or crimes standing in a relationship of end and means. Relevance is determined on the basis of circumstances that the investigative authority knew or could have known by the time of execution of a warrant.", "disposition": {"value": "reversal and remand", "quote": "Reverses the judgment of the court below, and remands the case to the Gwangju High Court."}, "standard": {"value": "totality of circumstances", "quote": "on the basis of the content and nature of the suspected facts, the course of the search and seizure, and the like"}, "factors": ["The content and nature of the suspected facts", "The course of the search and seizure", "Where the habitual nature of the act in question is suspected, or where it is suspected of having been committed as part of a series of offenses arising from the manifestation of sexual propensity or tendency", "Electronic information relating to digital sex crimes of the same type or employing similar methods, committed at the same time as or in close temporal proximity to the suspected facts, or without temporal interruption", "Circumstances that the investigative authority knew or could have known by the time of execution of a warrant"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2021Do8284 decided February 27, 2025 (Supreme Court Gazette 2025, 638)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What additional circumstances must exist for relevance to the suspected facts to be recognized in the case of electronic information relating to temporally remote digital sex crimes of the same type?", "batch": "b09", "translatedFrom": "ko"}
{"caseNo": "2022Mo1566", "issue": "Where the quasi-appellant fails to properly specify the disposition on seizure or the investigative authority that made the disposition, how should the court handle the matter?", "answer": "Where there are circumstances making it difficult to specify the disposition concretely, the court must provide an opportunity to specify it through the exercise of the power of elucidation and the like. Since a quasi-appeal does not require the involvement of two opposing parties, it must not readily be rejected merely on the ground, for example, that the investigative authority was incorrectly specified.", "disposition": {"value": "partial reversal and remand", "quote": "Cancels all parts except the portion, and remands this portion of the case to the Seoul Central District Court."}, "standard": {"value": "states requirements", "quote": "Where there are circumstances making it difficult for the quasi-appellant to specifically specify the disposition on seizure or the like that is the subject of the challenge, the court must provide the quasi-appellant with an opportunity to specify the disposition on seizure or the like being challenged, through the exercise of the power of elucidation and the like."}, "factors": ["Circumstances making it difficult to specifically specify the disposition on seizure or the like that is the subject of the challenge", "A type of appeal litigation", "Does not require the involvement of two opposing parties", "The ground that it is difficult to recognize that the investigative authority specified by the quasi-appellant made the disposition in question"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 91Mo24 decided March 28, 1991 (Supreme Court Gazette 1991, 1324)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "At what stage may a quasi-appeal be rejected where the disposition challenged remains unspecified even after the court has provided an opportunity to specify it?", "batch": "b09", "translatedFrom": "ko"}
{"caseNo": "2022Do8662", "issue": "Are the confiscation and additional collection of crime victim property under the Act on Special Cases concerning the Confiscation and Return of Property Acquired Through Corrupt Practices predicated on the criminal facts on which public prosecution has been instituted, the property of the victim thereof, and the difficulty of recovery from the harm?", "answer": "The criminal facts serving as the grounds for confiscation and additional collection are limited to the criminal facts on which public prosecution has been instituted, and the property subject thereto is limited to property acquired from that victim or property obtained by retaining or disposing of that property. It is permitted only where it is recognized that recovery from the harm of that victim is extremely difficult.", "disposition": {"value": "partial reversal and remand", "quote": "Reverses the portion of the judgment of the court below ordering the confiscation of seized Exhibits 1 and 2 as against Defendant 2, and remands this portion of the case to the Seoul Eastern District Court."}, "standard": {"value": "states requirements", "quote": "the requirements for confiscation must be related to the facts of the offense charged in the public prosecution that has been instituted, and"}, "factors": ["Limited to the criminal facts on which public prosecution has been instituted, and", "Property acquired from the victim of those criminal facts on which public prosecution has been instituted", "Where it is recognized that recovery from the harm of that victim is extremely difficult", "The legislative purpose of the Act on Special Cases concerning the Confiscation and Return of Property Acquired Through Corrupt Practices", "The intent behind providing a procedure for return to victims and others"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2012Do8964 decided January 16, 2013"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What circumstances, and to what extent, must specifically be recognized for the victim's recovery from harm to be regarded as extremely difficult?", "batch": "b09", "translatedFrom": "ko"}
{"caseNo": "2022Da253724", "issue": "Where an insider of a listed company has held the same securities since more than 6 months prior, must short-swing trading profits be returned if there are purchases and sales within 6 months?", "answer": "Even where the same securities were previously held, short-swing trading profits must be returned to the extent that the quantities of purchases and sales within 6 months correspond. The securities sold need not be identified as the securities purchased during that period.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Where within 6 months there are simply only sales, liability to return short-swing trading profits does not arise, and that liability to return can arise only where there are purchases together with sales."}, "factors": ["An insider of a listed company", "Acts of purchase and sale within 6 months", "The extent to which the quantities of those purchases and sales correspond", "Without inquiring whether the insider actually used undisclosed inside information or whether there was an intention to gain profit by using inside information", "It is not provided that liability to return is exempted to the extent of identical securities purchased more than 6 months prior"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2010Da84420 decided March 10, 2011 (Supreme Court Gazette 2011 (First Half), 724)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where purchases and sales are made several times within 6 months, in what order should each transaction be matched to calculate the profit to be returned?", "batch": "b09", "translatedFrom": "ko"}
{"caseNo": "2021Mo1586", "issue": "Where the entirety of electronic information was copied and retained without distinguishing relevance to the alleged facts, and no detailed list specifying individual files was provided, is the entire seizure unlawful and incapable of being cured by a subsequent warrant?", "answer": "If the entirety of the information was obtained and retained without selecting relevant information, providing a detailed list specifying individual files, and removing irrelevant information, the warrant requirement and due process are seriously violated, and the entire seizure must be cancelled. Even if a subsequent warrant is issued for electronic information already obtained and retained, this does not change.", "disposition": {"value": "reversal and remand", "quote": "The order of the court below is reversed, and the case is remanded to Gwangju District Court."}, "standard": {"value": "states requirements", "quote": "The detailed list of seized information must specify the file details of the information."}, "factors": ["Determine the scope of information related to the crime alleged", "Without distinguishing relevance to the alleged facts", "Without preparing a detailed list specifying the concrete details of individual files", "After entering only a comprehensive compressed file whose contents cannot be ascertained", "Seriously violating the principles of the warrant requirement and due process"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2017Do13263 decided February 8, 2018 (Supreme Court Gazette 2018, 595)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where relevant information was selected but the entirety of the files must be retained for technical reasons, what protective measures are needed beyond the specification of the detailed list and the notation of the circumstances?", "batch": "b09", "translatedFrom": "ko"}
{"caseNo": "2021Ma6702", "issue": "Where a creditor revocation action filed by a rehabilitation claim creditor is taken over by the trustee and converted into an action for avoidance, may that rehabilitation claim creditor file an auxiliary intervention to assist the trustee?", "answer": "Since the outcome of the lawsuit directly affects the increase or decrease of the debtor's property and thereby affects the legal status of the rehabilitation claim creditor, the rehabilitation claim creditor may file an auxiliary intervention unless there are special circumstances.", "disposition": {"value": "reversal and remand", "quote": "The order of the court below is reversed, and the case is remanded to the Seoul Eastern District Court."}, "standard": {"value": "states requirements", "quote": "Even where the effect of the judgment in the relevant lawsuit does not directly extend to the person, if the legal status of the person seeking to file an auxiliary intervention on the premise of that judgment stands in a relationship whereby it is determined accordingly, such interest is recognized."}, "factors": ["Interest in the outcome of the lawsuit", "A relationship whereby the legal status of the person seeking to file an auxiliary intervention on the premise of that judgment is determined", "It may be considered that the outcome of the lawsuit affects the legal status of the rehabilitation claim creditor, such as by directly affecting the increase or decrease of the debtor's property."], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2014Ma4009 decided May 29, 2014"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specific cases are included in the special circumstances that would not permit the auxiliary intervention of a rehabilitation claim creditor?", "batch": "b10", "translatedFrom": "ko"}
{"caseNo": "2021Do8284", "issue": "Under the former Military Court Act, within what scope are objective and personal relevance to the alleged facts stated in the warrant recognized for seizure and search by a military prosecutor?", "answer": "There must be at least some value in proving the alleged facts and objective and personal relevance. Objective relevance is recognized not only for directly related evidence but also for indirect evidence or circumstantial evidence and the like; however, there must be a concrete and individual nexus. It is insufficient that the acts are merely of the same or a similar kind, and personal relevance may also be recognized for cases involving accomplices such as joint principal offenders and instigators, indirect principal offenders, and necessary accomplices.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to Suwon District Court."}, "standard": {"value": "states requirements", "quote": "This refers to the case where objective and personal relevance to the alleged facts is recognized."}, "factors": ["Motive and circumstances of the offense", "Means and methods of the offense", "Time and place of the offense", "Content of the alleged facts, the subject of the investigation, and the course of the investigation", "Cases where the subject is an accomplice such as a joint principal offender or an instigator, an indirect principal offender, or a necessary accomplice"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2018Do18866 decided June 1, 2023 (Gong 2023Ha, 1159)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What additional circumstances must be combined with the circumstance that the acts are of the same or a similar kind before objective relevance can be recognized?", "batch": "b10", "translatedFrom": "ko"}
{"caseNo": "2021Do1181", "issue": "When a lost-and-found information storage medium, as to which the holder's right has been waived or may be deemed waived, is seized without a warrant, are the restriction of the scope of seizure to relevance to the case and the guarantee of the right to participate required?", "answer": "Where seizure of the information storage medium is necessary for a criminal investigation and the possessor has waived the right pertaining thereto or may be perceived to have waived it, the scope of seizure cannot be deemed limited by relevance to the case in question, nor can the participation of a holder of the right to participate be deemed indispensable. However, special circumstances are reserved, such as where the investigative authority knew or could have sufficiently known circumstances making it difficult to presume a waiver of the right, such as loss, yet seized the item as a found article.", "disposition": {"value": "partial reversal and remand", "quote": "The part of the judgment of the court below concerning items 6, 10, 17, 18, 19, and 22 of the list of crimes as stated by the court below is reversed, and this part of the case is remanded to Seoul High Court. The remainder of the final appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Where seizure of an information storage medium is necessary for a criminal investigation, and the person who possessed the information storage medium has waived the right pertaining thereto or may be perceived to have waived it"}, "factors": ["Seizure of the information storage medium is necessary for a criminal investigation, and", "The person who possessed the information storage medium has waived the right pertaining thereto or may be perceived to have waived it", "An article as to which ownership or the right of disposition through management never existed, or existed but was lawfully waived, or an article bearing such appearance", "Special circumstances, such as that the investigative authority seized it without a warrant as a found article, notwithstanding that it knew or could have sufficiently known of such circumstances"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2021Do11170 decided January 27, 2022 (Supreme Court Gazette 2022Sang, 486)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specific circumstances are required to assess that the investigative authority could have sufficiently known of the loss of the information storage medium?", "batch": "b10", "translatedFrom": "ko"}
{"caseNo": "2020Mo735", "issue": "Can a warrant that lists as the objects of seizure only the electronic information stored in an information processing device at the place of search extend to seizing electronic information stored on a remote server?", "answer": "To seize electronic information stored on a remote server, that electronic information must be separately specified in the items to be seized under the warrant. If only the electronic information stored in an information processing device is listed, the electronic information stored on a remote server cannot be seized by using that device.", "disposition": {"value": "dismissal", "quote": "The re-appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "The electronic information stored on a remote server must be separately specified in the 'items to be seized.'"}, "factors": ["The spirit of due process and the warrant requirement that the Constitution and the Criminal Procedure Act seek to realize", "The location, the administrator, and the capacity of the storage space", "The procedure of accessing a remote server through an information and communications network and downloading the electronic information stored there to a computer or other information processing device, or displaying it on a screen", "Because their content and nature are different", "The degree of infringement of fundamental rights is also different."], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2008Do763 decided March 12, 2009 (Gong 2009Sang, 503)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To specify the electronic information of a remote server in a warrant, how concretely must the server address, the account, and the scope of the information be stated?", "batch": "b10", "translatedFrom": "ko"}
{"caseNo": "2020Do1669", "issue": "Does a computer program file constitute an obscene object within the meaning of the crime of producing obscene matter, and what are the criteria for using, as lawful evidence, the electronic information contained in a storage medium voluntarily submitted by a third party and the secondary evidence obtained therefrom?", "answer": "A computer program file does not constitute an obscene object within the meaning of the crime of producing obscene matter, and where the suspect is the substantive subject of seizure with respect to a medium voluntarily submitted by a third party, procedural rights, including the right to participate and service of the list of electronic information, must be guaranteed absent special circumstances. Illegally obtained evidence and the secondary evidence based thereon are in principle devoid of admissibility of evidence, and the exception to the latter is determined by comprehensively assessing matters such as the attenuation or severance of causation; where, in the course of a lawful search, information pertaining to a separate crime is discovered incidentally, any further search must be suspended and a separate warrant must be obtained.", "disposition": {"value": "Other", "quote": "The guilty portion of the judgment of the court below is reversed, and this portion of the case is transferred to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "only where the investigative authority suspends any further search and obtains from the court a search and seizure warrant as to the separate criminal charge"}, "factors": ["if the person has not otherwise transferred it to a third party or abandoned it at his or her own discretion", "the purpose of the procedural provision and the content and degree of its violation,", "the specific circumstances of the violation and the possibility of avoiding it,", "the knowledge and intent of the investigative authorities,", "Whether causation has been attenuated or severed"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2016Do348, en banc judgment, decided November 18, 2021 (Supreme Court Official Gazette Gong 2022Sang, 57)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must causation between the unlawful primary gathering of evidence and the secondary evidence be attenuated before the admissibility of evidence of the secondary evidence may be recognized?", "batch": "b10", "translatedFrom": "ko"}
{"caseNo": "2020Do11223", "issue": "When a warrant is executed at a residence, to what degree must the participant possess capacity to participate, and by what circumstances is the satisfaction of that requirement determined?", "answer": "The participant must possess at least the capacity to understand the meaning of the search and seizure procedure, and if only a suspect lacking such capacity participated, the execution is in principle unlawful. Whether the requirements for legality are satisfied is determined on the basis of the external factual state that the investigative authorities recognized at the time of execution or could have recognized.", "disposition": {"value": "partial reversal and remand", "quote": "The guilty portion of the judgment of the court below is reversed, and this case is remanded to Incheon District Court."}, "standard": {"value": "states requirements", "quote": "Participation by that suspect alone is insufficient, and the investigative authorities must, pursuant to Article 123 paragraph (3) of the Criminal Procedure Act, have neighbors, etc. possessing capacity to participate join as well."}, "factors": ["Disabilities that cause difficulty in communication or expression of intent", "Circumstances recognized by the investigative authorities or which could have been recognized", "An actual state of affairs externally recognizable", "Neighbors, etc. possessing capacity to participate joining as well"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What assistance must be provided to a participant with a disability for it to be regarded that capacity to participate sufficient to understand the meaning of the procedure has been secured?", "batch": "b11", "translatedFrom": "ko"}
{"caseNo": "2020Do10729", "issue": "Even in a procedure for searching electronic information in which the person subject to seizure has waived participation, the attorney's opportunity to participate must be separately guaranteed; and when may evidence collected in violation of procedure and evidence based thereon exceptionally be used?", "answer": "Because the attorney's right to participate is an inherent right, unless there are special circumstances, an opportunity to participate must be separately guaranteed. Illegally obtained evidence and evidence based thereon are excluded as a rule, but admissibility of evidence may exceptionally be recognized by comprehensively considering relevant circumstances, such as the content and circumstances of the procedural violation and the dilution or severance of causation.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed in its not guilty portion, and this part of the case is remanded to Uijeongbu District Court."}, "standard": {"value": "totality of circumstances", "quote": "Whether this is the case is to be assessed in light of all circumstances related to the acts in violation of procedure carried out in the course of evidence collection by the investigative agency"}, "factors": ["Purpose of the procedural provision", "Content and degree of the violation", "the specific circumstances of the violation and the possibility of avoiding it,", "the knowledge and intent of the investigative authorities,", "Whether there is dilution or severance of causation between the evidence collected without following procedure and the secondary evidence collected"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2007Do3061 decided November 15, 2007, en banc judgment (Supreme Court Gazette 2007ha, 1974)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specific cases are included among the special circumstances in which a separate opportunity to participate need not be guaranteed to the attorney?", "batch": "b11", "translatedFrom": "ko"}
{"caseNo": "2020Da300893", "issue": "What requirements make lawful a lawsuit in which a creditor, with respect to unregistered land whose registered owner cannot be identified, subrogates the owner against the State, and can a declaratory judgment obtained thereby prove the ownership of a specific person?", "answer": "If the subrogated debtor does not exist in reality or has died, there is no party standing; a claim for confirmation of ownership against the State has an interest in confirmation only in limited circumstances, such as where there is no registered owner in the registry or the registered owner is unknown, and the court must investigate this ex officio. A declaratory judgment on subrogation obtained in a state where the owner cannot be identified cannot become a final and conclusive judgment proving the ownership of a specific person.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Daejeon District Court."}, "standard": {"value": "states requirements", "quote": "A claim for confirmation of land ownership against the State has an interest in confirmation only where the land is unregistered and there is no registered owner in the land register or forest register, or the identity of the registered owner cannot be ascertained, or where there are special circumstances, such as the State denying the ownership of a third party who is the registered owner while continuing to assert continued State ownership."}, "factors": ["Where the debtor being subrogated is not a person who actually exists or is a deceased person", "Where there is no registered owner in the land register or forest register, or the identity of the registered owner cannot be ascertained", "Special circumstances, such as the State denying the ownership of a third party who is the registered owner while continuing to assert continued State ownership", "Where the owner cannot be identified because there is no entry of a specific address or personal particulars"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 94Da14339 decided June 24, 1994 (Supreme Court Decision Gazette, Second Half of 1994, 2077)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "How much material is needed to identify, through other materials, an owner of record for whom no address or personal particulars appear in the register?", "batch": "b11", "translatedFrom": "ko"}
{"caseNo": "2020Da202616", "issue": "Where shares acquired through a debt-to-equity swap in the course of corporate restructuring are sold within 6 months, is liability to return short-swing profits excluded if the debt-to-equity swap is a type of transaction with no possibility of unfairly using inside information?", "answer": "For transactions of a type objectively devoid of any possibility of unfairly using inside information, the court may exclude application of the return provisions, and if at least one of the preceding transaction and the subsequent transaction falls within the exception, there is no liability to return in the absence of special circumstances. The debt-to-equity swap in this case was unavoidable for the purpose of business normalization and maintenance of listing, and matters such as whether to acquire the shares and the conditions thereof were not determined arbitrarily; accordingly, the appellate court's determination excluding application of the return provisions is proper.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "Application to the facts", "quote": "A case in which it was held that there was no error such as misapprehension of legal principles in the appellate court's determination that, objectively viewed, it is difficult to find that the type of transaction itself carried any possibility of unfairly using inside information, and therefore the short-swing profit return provisions of Article 172 (1) of the Financial Investment Services and Capital Markets Act could not apply to the debt-to-equity swap."}, "factors": ["Restructuring of an enterprise showing signs of insolvency, or business normalization through such restructuring", "A type of transaction in which, objectively viewed, there is no possibility of using inside information", "The debt-to-equity swap appears to have been unavoidable solely for the purpose of maintaining the listing necessary for business normalization of Company A", "The point that, considering the economic gains and losses of the creditor financial institutions, it cannot be found that matters such as whether and when to acquire the shares and the acquisition conditions were determined arbitrarily"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2003Da60396 decided May 28, 2004 (Supreme Court Gazette 2004Ha, 1061)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where one of the preceding transaction and the subsequent transaction falls within the exception to application, what are the special circumstances that would warrant recognizing liability to return?", "batch": "b11", "translatedFrom": "ko"}
{"caseNo": "2019Mo3526", "issue": "If, despite a party's specific request for confirmation at the time of seizure, the warrant's statement of the criminal facts was not shown, can the seizure disposition be deemed lawful on the ground that counsel later reviewed the warrant?", "answer": "If the contents of the warrant were not shown despite a specific request for confirmation at the time of seizure, it is difficult to recognize it as a lawful presentation of a warrant. The order of the court below was in error in holding that the seizure disposition was not unlawful solely on the basis that counsel later reviewed the warrant, without determining the lawfulness of the presentation of the warrant at that time.", "disposition": {"value": "reversal and remand", "quote": "The order of the court below is reversed, and the Case is remanded to the Incheon District Court, Bucheon Branch."}, "standard": {"value": "Application to the facts", "quote": "A case in which the order of the court below, holding that the seizure disposition was not unlawful on the basis of the circumstance that counsel reviewed the warrant while participating in the examination of the Reapplicant, was held to be erroneous for violating the relevant provisions of the Constitution and the Criminal Procedure Act."}, "factors": ["The Reapplicant requested specific confirmation of the warrant", "The investigative authority did not show the portion of the warrant stating the criminal facts, and", "Thereafter, the Reapplicant's counsel reviewed the warrant while participating in the examination of the Reapplicant", "The circumstance that counsel reviewed the warrant while participating in the examination"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the party does not request specific confirmation of the warrant, to what extent must the contents of the warrant be shown for the presentation to be lawful?", "batch": "b11", "translatedFrom": "ko"}
{"caseNo": "2019Mo2584", "issue": "When an investigative agency seeks to take a storage medium out to an office or the like and seize electronic information from it, what circumstances must it prove and what Procedure must it guarantee?", "answer": "The investigative agency must specifically prove the exceptional circumstance that it is impossible to print out or duplicate the information by defining the scope on site, or that achieving the purpose of the seizure is markedly difficult. Even after removal, it must guarantee measures to prevent the arbitrary duplication of information unrelated to the opportunity to participate, and if this is omitted, it is unlawful absent special circumstances under which the purpose of guaranteeing the right to participate was not substantially infringed.", "disposition": {"value": "dismissal", "quote": "The re-appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "exceptional circumstances in which the method of printing out or duplicating by defining the scope is impossible, or markedly difficult to achieve the purpose of the seizure"}, "factors": ["exceptional circumstances in which the method of printing out or duplicating by defining the scope is impossible, or markedly difficult to achieve the purpose of the seizure", "Guaranteeing the opportunity to participate, and", "Lawful measures to prevent the arbitrary duplication of electronic information unrelated to the alleged facts", "Special circumstances under which it can be said that the purpose of guaranteeing participation in the Procedure was not substantially infringed"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court En Banc Decision 2011Mo1839, decided July 16, 2015 (Supreme Court Gazette 2015Ha, 1274)"}, "burden": {"value": "prosecutor", "quote": "As to the existence of such exceptional circumstances, the investigative agency, as the executing agency of the warrant, must specifically prove them, and"}, "openQuestion": "Even where the opportunity to participate was not guaranteed, what specifically are the special circumstances sufficient to recognize that the purpose of guaranteeing the right to participate was not substantially infringed?", "batch": "b12", "translatedFrom": "ko"}
{"caseNo": "2019Ma6990", "issue": "Where, under a trust agreement, the settlor agrees to pay, as litigation costs to be reimbursed later, the attorney's fees for the trustee's lawsuit, may those fees be included in the litigation costs?", "answer": "Fees agreed to be paid after the fact are also included in the litigation costs, and a payment by a third party is also recognized where there are circumstances that warrant regarding it as the payment by a party. Since the fee agreement of the settlor in this case arises from the responsibility to conduct the lawsuit and the bearing of costs under the trust agreement, the fees determined in accordance with the rules must be included in the litigation costs to be reimbursed from the opposing party to the trustee.", "disposition": {"value": "reversal and remand", "quote": "The order of the court below is reversed, and the case is remanded to Seoul Northern District Court."}, "standard": {"value": "Application to the facts", "quote": "The attorney's fees that Company C agreed to pay Corporation D under the fee agreement may be regarded as identical to those paid by Company B, a party to the lawsuit, and should therefore be recognized as litigation costs, and"}, "factors": ["The fact that payment after the fact was agreed upon", "The circumstances permitting the payment to be regarded as identical to a payment by a party", "A trust agreement that internally provides for the responsibility to conduct litigation relating to the trust property and the bearing of costs, among other matters", "It was agreed that the fees, as attorney's fees to be reimbursed from the opposing party through a subsequent application for determination of the amount of litigation costs, would be substituted for their payment"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2004Ma1055 decided April 30, 2005"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where there is no internal cost-bearing agreement such as a trust agreement, may a third party's payment of fees be recognized as identical to a payment by a party?", "batch": "b12", "translatedFrom": "ko"}
{"caseNo": "2019Ma6102", "issue": "Where the bankruptcy trustee exercises the right of avoidance and brings an action for objection to distribution seeking restitution, which court has exclusive jurisdiction?", "answer": "Article 396 (3) of the Debtor Rehabilitation and Bankruptcy Act, which prescribes the exclusive jurisdiction of the court handling the pending bankruptcy proceeding, does not apply. Exclusive jurisdiction lies with the District Court to which the enforcement court that conducted the distribution under the Civil Execution Act belongs.", "disposition": {"value": "reversal and self-adjudication", "quote": "The order of the court below is reversed, and the first-instance order is vacated."}, "standard": {"value": "totality of circumstances", "quote": "Considering the wording and purport of the foregoing jurisdiction provisions of the Civil Execution Act and the Debtor Rehabilitation and Bankruptcy Act, the nature of and relationship between the action for objection to distribution and the action for avoidance, fairness or convenience between the parties, predictability, and the propriety and expedition of adjudication and the effectiveness of judgments that can be expected when the action for objection to distribution and the action for avoidance proceed before the District Court to which the enforcement court that conducted the distribution belongs or before the court handling the pending bankruptcy proceeding,"}, "factors": ["the wording and purport of the foregoing jurisdiction provisions", "the nature of and relationship between the action for objection to distribution and the action for avoidance", "fairness or convenience between the parties", "predictability", "the propriety and expedition of adjudication and the effectiveness of judgments that can be expected"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where the bankruptcy trustee claims restitution by means other than an objection to distribution, is exclusive jurisdiction recognized for the District Court to which the enforcement court belongs?", "batch": "b12", "translatedFrom": "ko"}
{"caseNo": "2019Do4938", "issue": "Is the admissibility of evidence of videos of other filming offenses found in a voluntarily surrendered mobile phone recognized even though a specific list of the seized electronic information was not served?", "answer": "Information relating to the suspected crime that motivated the voluntary submission and having at least minimal probative value is subject to seizure, and if procedural rights were not substantially infringed, the failure to serve a list alone does not render the seizure unlawful. In light of the relevance of the time and place of filming, the defendant's participation in the search, and the specific statements made, the admissibility of evidence for the video in this case is recognized.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Uijeongbu District Court."}, "standard": {"value": "Application to the facts", "quote": "on the ground that it was generated from electronic information lawfully seized by voluntary submission and the admissibility of evidence is recognized"}, "factors": ["the filming period is close in time to the date and time of Offense No. 8, and", "it was filmed at a public place such as a bus stop, as in Offense No. 8,", "it may be found that the defendant participated in the search", "the defendant readily recognized when and where the video was taken and made specific statements concerning it, and therefore", "it is difficult to find that procedural rights were substantially infringed"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2016Do348, en banc judgment decided November 18, 2021 (Supreme Court Gazette 2022 (Upper Half), 57); Supreme Court Decision 2021Do11170 decided January 27, 2022 (Supreme Court Gazette 2022 (Upper Half), 486)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must the time and place of the other filming offense differ from those of the offense that motivated the voluntary submission before relevance is denied?", "batch": "b12", "translatedFrom": "ko"}
{"caseNo": "2019Do13290", "issue": "Can a seizure report containing the statement of a police officer who directly witnessed the commission of the offense serve as evidence corroborating the defendant's confession, independently of the legality of the voluntary submission procedure for the mobile phone?", "answer": "The portion concerning the circumstances of seizure in the seizure report, which contains the testimony of a witness to the offense and bears the names and seals of the preparing police officers, constitutes independent evidence and, inasmuch as the defendant consented to its use as evidence, there is much room for it to serve as corroborating evidence of the confession. Even at the scene of the arrest of a flagrant offender, voluntarily submitted items may be seized without a warrant, and no separate subsequent warrant is required.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed insofar as it concerns the violation of the Act on Special Cases Concerning the Punishment of Sexual Crimes (Filming with Cameras, etc.) as to item 18 of the separate list of crimes as found by the court below, and this part of the case is remanded to the collegiate panel of the main court of Uijeongbu District Court. The remainder of the final appeal is dismissed."}, "standard": {"value": "Application to the facts", "quote": "on the ground that there is much room for it to serve as (i.e., it may well serve as) evidence corroborating the defendant's confession"}, "factors": ["the defendant confessed to the facts charged and consented to the use of all documents submitted by the prosecutor as evidence;", "the names and seals of the judicial police officer and judicial police who prepared the above seizure report while directly witnessing the defendant's commission of the offense;", "the statement of a person who directly witnessed the scene where the defendant committed the offense;", "separate and independent evidence that is not affected by whether the voluntary submission procedure for the mobile phone was lawful."], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2015Do13726 decided February 18, 2016"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "If the defendant had not consented to the use of the seizure report as evidence, what requirements would be necessary to use the portion concerning the circumstances of seizure as corroborating evidence of the confession?", "batch": "b12", "translatedFrom": "ko"}
{"caseNo": "2018Do7658", "issue": "By what criteria are the joint principal offender and the offender by aiding and abetting, mental or physical impairment, and the risk of recidivism in murder offenses determined, and can the fact of aiding and abetting be recognized without amending the indictment where the case was prosecuted on the basis of joint perpetration?", "answer": "Joint perpetration requires the subjective element of a shared intent to commit the crime jointly and the objective element of the commission of the crime through functional control of the act based on the joint intent, while aiding and abetting requires an act that facilitates the execution of the crime and the intent to aid and the intent required for the principal offense; where the identity of the alleged facts and the guarantee of the right of defense are satisfied, the fact of aiding and abetting may be recognized without amending the indictment. The risk of recidivism is assessed at the time of judgment on the basis of a substantial probability evaluated in light of various circumstances, and mental or physical impairment is determined independently by the court as the absence or diminution, arising from a mental disorder, of the ability to discern or the ability to control one's conduct.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "For joint perpetration to be established, there must be the subjective element of a shared intent to commit the crime jointly and the objective element of the fact that the crime was committed through functional control of the act based on the joint intent."}, "factors": ["The respective positions and roles", "The content of the inducement made to the accomplice", "Occupation and environment", "Substantial disadvantage to the defendant's defense", "The ability to discern matters and the resulting ability to control one's conduct"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2002Do5112 decided March 11, 2005 (Supreme Court Bulletin 2005, p. 618)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must involvement and the sharing of roles specifically exist in order to recognize a relationship of mutual exploitation among accomplices beyond a reasonable doubt?", "batch": "b13", "translatedFrom": "ko"}
{"caseNo": "2018Do20504", "issue": "When may illegally obtained evidence and the derivative (2nd-generation) evidence based thereon exceptionally be recognized as having admissibility of evidence, and how is a failure to guarantee the right to participate in the process of collecting electronic information assessed?", "answer": "Illegally obtained evidence and derivative (2nd-generation) evidence are excluded in principle, but where the substantive content of due process is not infringed and exclusion would run counter to criminal justice, they may be used by comprehensively considering the relevant circumstances. When collecting electronic information, necessary measures, such as guaranteeing opportunities to participate, must be taken, but where there is no explicit waiver of participation and no substantive impairment of the purpose of guaranteeing the right to participate, legality cannot be denied.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "all circumstances relating to procedural violations committed in the course of evidence collection by the investigative authorities"}, "factors": ["Purpose of the procedural provision", "Content and degree of the violation", "the specific circumstances of the violation and the possibility of avoiding it,", "the knowledge and intent of the investigative authorities,", "Whether there is dilution or severance of causation between the evidence collected without following procedure and the secondary evidence collected"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2007Do3061 decided November 15, 2007, en banc judgment (Supreme Court Gazette 2007ha, 1974)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What circumstances must exist between the initial unlawful collection of evidence and the collection of derivative (2nd-generation) evidence for causation to be regarded as sufficiently attenuated or severed?", "batch": "b13", "translatedFrom": "ko"}
{"caseNo": "2018Do13864", "issue": "Where a securities purchase recommendation does not disclose the recommender's prior purchase and the possibility of selling after the recommendation, such interests, it constitutes the use of unjust means and deception; how is whether a purchase recommendation was made determined?", "answer": "If an investment adviser or the like recommends a purchase without disclosing the recommender's own prior purchase and the possibility of selling after the recommendation, it constitutes the use of unjust means and deception. Whether a purchase recommendation was made is determined objectively by comprehensively considering the actor's position, the motive and basis for the statement, the risk of misleading the investor, subsequent conduct, stock price trends, and other relevant factors.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "It must be determined according to objective criteria by comprehensively considering the various circumstances before and after the conduct."}, "factors": ["the position of the actor,", "the motive and circumstances under which the actor came to make a particular statement or indication,", "Whether it was made in good faith on the basis of reasonable grounds", "The conduct taken by the actor after making the statement and the trend of the stock price", "The various circumstances before and after the conduct"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2014Do6910 decided March 30, 2017 (Case Report 2017 First Half, 930)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent, and by what specific content and method, must a personal interest be disclosed to be sufficient to prevent misunderstanding by investors?", "batch": "b13", "translatedFrom": "ko"}
{"caseNo": "2018Da301336", "issue": "Where liability for damages and the occurrence of harm are recognized, but the assertion and proof of the amount of damage are inadequate, or proof of the specific amount is extremely difficult, how should the court determine the amount of damage?", "answer": "The court should not readily dismiss the claim, but should actively exercise its power of elucidation to urge proof and examine the specific amount of damage, and if the amount still cannot be ascertained, it may recognize the amount of damage by taking into a totality of circumstances the relevant indirect facts. Such a provision on calculation applies, unless otherwise specially provided, to damages under special Acts as well.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court."}, "standard": {"value": "totality of circumstances", "quote": "If even thereafter the specific amount of damage cannot be ascertained, the amount of damage may be recognized by taking into a totality of circumstances the indirect facts that serve as the basis for calculating the amount of damage."}, "factors": ["The relationship between the parties", "The circumstances under which the non-performance of an obligation or the tort (unlawful act) and the resulting property damage arose", "The nature of the damage", "The various circumstances following the occurrence of the damage"], "precedent": {"value": "follows existing precedent", "quote": "Article 202-2 of the Civil Procedure Act, reflecting the precedent to date,"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "After the court has urged proof of the amount of damage, to what extent must it conduct examination before proceeding to the calculation of the amount of damage based on indirect facts?", "batch": "b13", "translatedFrom": "ko"}
{"caseNo": "2018Da271657", "issue": "Where both parties' appeals are dismissed in their entirety, if each party bearing its own costs becomes unreasonable due to a marked difference in the scope of dissatisfaction, how should the court allocate the appeal costs?", "answer": "It is desirable for the court to prevent unreasonable results by having each party bear the appeal costs arising from that party's dissatisfaction, or by appropriately apportioning the total appeal costs in proportion to the scope of dissatisfaction.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "Considering, together with the principles established by the Civil Procedure Act, such as the rule that the losing party bears the costs of the lawsuit, the form and progress of the lawsuit, the scope of dissatisfaction where it is an appellate court, and all other circumstances"}, "factors": ["The rule that the losing party bears the costs of the lawsuit", "The form and progress of the lawsuit", "A marked difference between the parties' respective scopes of dissatisfaction", "Where a party who in substance contested a narrower scope has prevailed on a far broader scope"], "precedent": {"value": "sets a new standard", "quote": "It is desirable that the court issue its order in a form whereby the appeal costs for the portions arising from each party's dissatisfaction are borne by the respective dissatisfied party, or whereby the appeal costs of both parties are combined and appropriately apportioned in proportion to the scope of dissatisfaction, so that an unreasonable result such as the above does not occur."}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What degree of difference between the parties' scopes of dissatisfaction is recognized as a marked difference such that each party bearing its own costs should be avoided?", "batch": "b13", "translatedFrom": "ko"}
{"caseNo": "2017Ma5883", "issue": "Where some of the representative parties lack qualification or fall outside the scope of the total number of class members as amended in the application, what examination must the court conduct before deciding whether to grant leave for a class action?", "answer": "The court must examine whether the representative parties can be composed of qualified parties after excluding unqualified persons, and the scope of application and the requirements for leave to sue. If those requirements are met, leave for the class action must be granted.", "disposition": {"value": "partial reversal and remand", "quote": "That part of the order of the court below concerning the defendant (opposing party) Yuanta Securities Co., Ltd. is reversed, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "If the application for leave to sue satisfies the above requirements, leave for the securities-related class action must be granted."}, "factors": ["The representative parties need not be plural, and a securities-related class action can be conducted with a single representative party alone", "The court may adjust the scope of the total number of class members and grant leave for the securities-related class action", "Whether the representative parties can be composed of persons who satisfy the requirements prescribed by the Act", "Whether the application for leave to sue in the securities-related class action satisfies the requirements of Article 3 (Scope of Application) and Article 12 (Requirements for Leave to Sue) of the Act"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where no qualified representative party remains at all after excluding unqualified persons, must the court provide an opportunity for additional appointment?", "batch": "b14", "translatedFrom": "ko"}
{"caseNo": "2017Du74320", "issue": "How is it determined whether the status of a road recognized under the transitional provision prior to the complete amendment is maintained, and whether acceptance of a building report for a de facto road may be refused on grounds of public interest?", "answer": "Taking into account the legislative purpose, the gap in the law, protection of legitimate expectations, and other considerations, the previous transitional provision remains in force even after the complete amendment. Even without an express limitation, acceptance may be refused where there is a grave necessity in the public interest, and the ground for disposition added in this Case involves the same basic facts and is justifiable, leaving room for the disposition to be lawful.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "comprehensively considering whether a gap in the law would arise if the previous transitional provision were deemed to have lapsed, and other circumstances in their entirety"}, "factors": ["The legislative purpose and overall structure of the completely amended statute", "Whether a gap in the law would arise if the previous transitional provision were deemed to have lapsed", "Protection of the legitimate expectations and legal stability of owners of neighboring land and buildings", "Identity of the basic facts", "A grave necessity in the public interest to ensure that the passage of neighboring residents is not obstructed"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2011Du27322 decided March 15, 2012"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Is a grave necessity in the public interest to refuse acceptance of a building report recognized even where an alternative passage is secured for neighboring residents?", "batch": "b14", "translatedFrom": "ko"}
{"caseNo": "2017Do9254", "issue": "How is it determined whether embezzlement is established upon the arbitrary consumption of property delivered for the purpose of concealing criminal proceeds, and whether such property, where it is crime victim property, may be subject to additional collection?", "answer": "The negotiable certificate of deposit in this case, being performance for an illicit cause, vests ownership in the recipient, and therefore even if the cash exchanged for it is arbitrarily consumed, embezzlement is not established. Property related to the concealment of criminal proceeds is in principle subject to additional collection, but where it is crime victim property, its value cannot be collected as additional collection.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed as to the guilty portion, and this portion of the case is remanded to the Daegu High Court."}, "standard": {"value": "states requirements", "quote": "it must fall under cases where, although the performance was made in violation of mandatory provisions of law, compelling its return would rather not accord with the purpose of the norm, etc."}, "factors": ["The content or nature, or the purpose or cause, of the act giving rise to the performance", "Contrary to good morals and other social order", "Where compelling its return would rather not accord with the purpose of the norm", "A bearer negotiable certificate of deposit received for the purpose of concealing criminal proceeds, etc.", "Where the property is crime victim property as provided in Article 8 (3) of the same Act"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2016Do18035 pronounced on April 26, 2017 (Gong 2017Sang, 1215)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where crime victim property and other property are commingled, how is the scope of exclusion from additional collection calculated?", "batch": "b14", "translatedFrom": "ko"}
{"caseNo": "2017Do13458", "issue": "How are the concurrence relationship between two penalty provisions concerning the provision of money or valuables in connection with elections, the prosecution of only some crimes, the scope of use of seized evidence, and the relevance to election campaign activities determined?", "answer": "The two provisions stand in a relationship of imaginary concurrence, and unless there are special circumstances, such as an exercise of prosecutorial discretion that is manifestly beyond its bounds, only some crimes may be prosecuted, and seized evidence may be used for crimes that have both objective relevance and personal relevance to the alleged facts stated in the warrant. The provision of money or valuables in connection with election campaign activities is not limited to the election campaign period, and a purpose to influence an election or quid pro quo is not necessarily required.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Where a single act satisfies the constituent elements of each provision, the two crimes stand in a relationship of imaginary concurrence."}, "factors": ["The target of the violation, the presence or absence of a quid pro quo relationship, and the presence or absence of a purpose to influence an election", "Special circumstances, such as that the power of prosecution was exercised arbitrarily and was manifestly beyond the bounds of prosecutorial discretion", "Objective relevance to the alleged facts", "Personal relevance between the subject and the suspect", "In connection with election campaign activities, with matters concerning election campaign activities as the motive"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2013Do11233 decided March 10, 2016 (Supreme Court Gazette, First Half of 2016, 587)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specific circumstances are recognized as making the choice to prosecute only some crimes manifestly beyond the bounds of prosecutorial discretion?", "batch": "b14", "translatedFrom": "ko"}
{"caseNo": "2017Do12649", "issue": "In fundraising using falsified financial statements, how are the amount defrauded and causation under the offense of fraud, and the unfair means and the profit gained from the violating act under the Financial Investment Services and Capital Markets Act, determined?", "answer": "The amount defrauded under the offense of fraud is the entire sum delivered without deducting any consideration or collateral, and as to causation with the credit decision, the adverse effect on the reliability assessment that would arise if the falsification were revealed must also be taken into account. Unfair means refers to all means that are unfair in light of social conventions, and the profit gained from the violating act is in principle the difference obtained by deducting total costs for the transaction from the total revenue of the transaction.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Where money is delivered as a result of deception, the victim's property is infringed thereby, and the offense of fraud is immediately established, and"}, "factors": ["The entirety of the money delivered", "Whether net income for the current period is a surplus or a deficit", "The adverse effect on the reliability assessment", "All means, schemes, or devices recognized as unfair in light of social conventions", "The difference obtained by deducting the total costs for the transaction from the total revenue arising from that transaction"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2004Do5163 decided April 27, 2007"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "When calculating the profit gained from the violating act, to what extent does the scope of specific costs included in the total costs for the transaction extend?", "batch": "b14", "translatedFrom": "ko"}
{"caseNo": "2017Da287648", "issue": "Can an assignment of a claim, in the amount of a contingency fee, made in exchange for the provision of services by an attorney while the debtor was in a state of insolvency, be avoided in bankruptcy proceedings?", "answer": "If the provision of services was made in substantial concurrent exchange and a reasonable balance between the performances is recognized, then absent special circumstances it cannot be avoided. The prejudicial effect of an assignment of a claim subject to a condition precedent is also, in principle, assessed on the basis of the time of the act of assignment rather than the time of fulfillment of the condition.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "if this was done in concurrent exchange together with a new supply of goods or provision of services, etc., and a reasonable balance can be recognized between the value of the performance received by the debtor and the amount of the obligation extinguished by the relevant act, then absent special circumstances such an act of extinguishment of an obligation cannot be regarded as an act prejudicial to holders of bankruptcy claims,"}, "factors": ["whether it was done in concurrent exchange together with a new supply of goods or provision of services, etc., and", "a reasonable balance between the value of the performance received by the debtor and the amount of the obligation extinguished by the relevant act", "the state of the debtor's property and business at the time of the act", "The source of the repayment funds", "the relationship between the debtor and the creditor"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2015Da240447 pronounced September 21, 2017 (Gong2017Ha, 1965)"}, "burden": {"value": "the opposing party", "quote": "The beneficiary himself or herself bears the burden of proof as to good faith."}, "openQuestion": "Even where a reasonable balance between the performances is recognized, what specifically are the special circumstances that permit avoidance of an act of concurrent exchange extinguishment of an obligation?", "batch": "b15", "translatedFrom": "ko"}
{"caseNo": "2017Da265129", "issue": "An unlawful creditor revocation action filed after a declaration of bankruptcy may be taken over by the bankruptcy trustee and amended into an action for avoidance; how is the jurisdiction of the amended action determined?", "answer": "The bankruptcy trustee may take over even an unlawful creditor revocation action and exercise the right of avoidance by amending the claim. An action for avoidance amended in the court of first instance falls under the exclusive jurisdiction of the court in which the bankruptcy proceeding is pending; however, where the trustee took over the lawsuit and exercised the right of avoidance in the appellate court, the appellate court continues to hold the authority to hear and decide the case.", "disposition": {"value": "reversal and self-adjudication", "quote": "The judgment of the court below is reversed, and the judgment of the first instance is vacated. The case is transferred to Gwangju District Court."}, "standard": {"value": "states requirements", "quote": "Even where a creditor revocation action filed by a bankruptcy claimant after a declaration of bankruptcy is unlawful, it should be held that the bankruptcy trustee may take over such lawsuit and then exercise the right of avoidance by way of amending the claim."}, "factors": ["A creditor revocation action filed by a bankruptcy claimant after a declaration of bankruptcy", "Where the court in which the creditor revocation action is pending is not the court in which the bankruptcy proceeding is pending", "After the creditor revocation action filed by the bankruptcy claimant became pending in the appellate court", "Where the bankruptcy trustee took over a creditor revocation action pending in the court of first instance and amended it into an action for avoidance"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2017Da205073 decided May 30, 2017 (Supreme Court Gazette 2017Ha, 1369)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the bankruptcy trustee, after taking over the lawsuit, amended it into an action for avoidance, as of what point in time is compliance with the period for exercising the right of avoidance determined?", "batch": "b15", "translatedFrom": "ko"}
{"caseNo": "2017Da249929", "issue": "Even where a wrongful act did not induce trading in a financial investment product, if it affects the exercise of rights or the fulfillment of conditions pertaining to the product and thereby causes loss to the investor, does liability for damages arise?", "answer": "Even where trading was not induced by a wrongful act, if loss is caused to the investor in accordance with the structure and content of the financial investment product in question, liability for damages is borne under the former Financial Investment Services and Capital Markets Act. Those subject to liability include not only the issuer or seller but also any person who, through the trading of the linked financial investment product, has acquired an interest in conflict with that of the investor.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "Determination must be made in consideration of the specific content of the act in violation of Article 178 of the former Financial Investment Services and Capital Markets Act, which constitutes the constituent elements of liability for damages, as well as the structure, content, and characteristics of the financial investment product in question, and various other circumstances."}, "factors": ["The structure and trading method of the financial investment product and the course of the transaction", "The characteristics of the market in which the financial investment product is traded", "The relationship between the investor and the actor", "All circumstances before and after the act", "The content and unlawfulness of the harmful act"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2013Da2740 decided March 24, 2016 (Gong2016Sang, 606)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where a wrongful act and ordinary market price fluctuations have together affected the investment loss, how is the amount of damages to be apportioned and calculated?", "batch": "b15", "translatedFrom": "ko"}
{"caseNo": "2016Mo587", "issue": "Where, in seizing electronic information from the server of an Internet service provider, there was a failure to present the original warrant, to segregate the relevant information, to guarantee the right to participate, and to deliver a list, can the seizure and search be quashed in its entirety?", "answer": "The judgment of the court below, holding that the acquisition of electronic information did not fall within the circumstances requiring speed that permit the omission of prior notice, was erroneous. Nevertheless, taking together the failure to present the original warrant, the seizure without segregating the relevant portions, the failure to guarantee the right to participate, and the failure to deliver a list, the conclusion quashing the procedure was justifiable, as these matters were serious enough to render the entire procedure unlawful.", "disposition": {"value": "dismissal", "quote": "The re-appeal is dismissed."}, "standard": {"value": "Application to the facts", "quote": "A case in which it was held that, where the illegality revealed in the search and seizure is so serious as to render the entire search and seizure procedure unlawful, the conclusion of the court below quashing the search and seizure can be affirmed."}, "factors": ["The failure to present the original warrant", "The illegality of printing out the whole of the information and seizing it as evidence without segregating the portions related to the facts constituting the suspected crime", "The illegality of failing to guarantee the right to participate to the quasi-appellant, who, as a service user, was the person actually subject to seizure and a suspect", "The illegality of failing to deliver a list of the seized electronic information"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where only one of the procedural illegalities recognized in this case exists, can it be assessed as an illegality serious enough to warrant quashing the seizure and search in its entirety?", "batch": "b15", "translatedFrom": "ko"}
{"caseNo": "2016Du47659", "issue": "Is a tax assessment based on tax data collected in a tax investigation conducted for an improper purpose, rather than for its inherent purpose, unlawful?", "answer": "A tax investigation conducted for an improper purpose constitutes a serious ground of illegality in violation of the prohibition against abuse of investigative authority. A tax assessment based on tax data collected in such an investigation is likewise unlawful.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "If a tax investigation was conducted not for its inherent purpose of collecting tax data or verifying the accuracy of reported contents, but for an improper purpose, this falls under a case in which the tax investigation has a serious ground of illegality, and a tax assessment based on tax data collected by such a tax investigation is likewise unlawful."}, "factors": ["Objective necessity", "Minimality", "Prohibition against abuse of authority", "Improper purpose", "A tax assessment based on tax data collected by such a tax investigation"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where a legitimate purpose of collecting tax data and an improper purpose coexist in a tax investigation, how should the unlawfulness of the tax assessment be determined?", "batch": "b15", "translatedFrom": "ko"}
{"caseNo": "2016Da277682", "issue": "In rehabilitation proceedings, on what criteria and by what method should the value of assets and the value of the object of a rehabilitation security right be appraised?", "answer": "A value appraised on the premise of the continuation of the enterprise must be taken as the standard. An appraisal method based on profitability is standard, but other appraisal methods are also permitted if, depending on the type and characteristics of the asset, they can express an objective value taking into consideration the continuity of the enterprise.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "It is sufficient if it can express an objective value taking into consideration the continuity of the enterprise."}, "factors": ["A value appraised on the premise of the continuation of the enterprise", "The type and characteristics of the asset", "An appraisal method based on the principle of profitability", "An objective value taking into consideration the continuity of the enterprise"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 90Ma954 decided May 28, 1991 (Gong1991, 1728)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "When various permitted appraisal methods produce different values, which appraisal result should take precedence?", "batch": "b16", "translatedFrom": "ko"}
{"caseNo": "2016Da257572", "issue": "What are the subjective requirements and reasonableness of the denial of intent with respect to a preferential act, and what are the criteria for determining the good faith of the transferee, and who bears the burden of proof?", "answer": "The denial of intent with respect to a preferential act requires the recognition that payment is being made to a specific creditor in evasion of the principle of equality among creditors, but an active intent to harm is not required; exceptional acts for which reasonableness is recognized are excluded from the scope of denial. The transferee must prove the absence of the unreasonableness requirement and good faith, and insolvency is not an essential requirement for the exercise of the right of avoidance, so the transferee's recognition thereof should not be made the principal ground for acknowledging good faith.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Where rehabilitation proceedings are commenced, the 'recognition that payment is being made to a specific creditor' is necessary in order to evade the principle of equality among creditors that applies in such cases, but it is not further necessary that there be an active intent or inclination to harm holders of rehabilitation claims or others."}, "factors": ["Recognition that payment is being made to a specific creditor", "The state of the rehabilitation company's property and business at the time of the act", "The source of the repayment funds", "The relationship between the rehabilitation company and the creditor", "Whether the creditor colluded with the rehabilitation company or exercised influence such as compelling the rehabilitation company to make payment"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2011Da56637, 56644 decided October 13, 2011 (Gong 2011Ha, 2351)"}, "burden": {"value": "the opposing party", "quote": "As the transferee's bad faith is presumed, the transferee itself bears the burden of proof as to good faith."}, "openQuestion": "Beyond recognition of insolvency, what specific circumstances must be proven to what degree before the transferee's good faith can be acknowledged?", "batch": "b16", "translatedFrom": "ko"}
{"caseNo": "2016Da247209", "issue": "Under what circumstances is an act extinguishing a specific debt with funds borrowed from a third party free of harmfulness and therefore excluded from the scope of avoidance, and may an agreement on the use of the funds be implied?", "answer": "Where the parties agreed to use the borrowed funds to extinguish a specific debt, in fact extinguished the debt with the borrowed funds in accordance with that agreement, and, in light of the loan terms, the relationship between the parties, and the like, the debtor's property is evaluated not to have decreased, the entire act is free of harmfulness and does not become subject to avoidance. An agreement on the use of the funds may be implied.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "If, compared with the state before the borrowing, it can be evaluated that the debtor's property did not decrease after the extinguishment of the debt through payment or otherwise, the act of extinguishing the debt through such payment or otherwise does not, viewed as a whole, harm holders of rehabilitation claims and others and therefore does not become subject to avoidance."}, "factors": ["An agreement between the third party and the debtor that the borrowed funds will be used to extinguish a specific debt", "Payment or the like on the specific debt was in fact made in accordance with such an agreement, and", "The timing, circumstances, and method of the borrowing and the payment or the like", "The loan terms, such as interest, the due date for repayment, and whether security was provided", "The relationship between the third party providing the borrowed funds and the debtor"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2001Da39473 decided September 24, 2002 (Supreme Court Gazette, Second Half of 2002, 2503)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specific circumstances must be present for an implied agreement on the use of the borrowed funds to be recognized?", "batch": "b16", "translatedFrom": "ko"}
{"caseNo": "2015Mo3243", "issue": "Whether a claim for retrial may be filed against a judgment dismissing the case, and whether a warrantless arrest and detention pursuant to unconstitutional statutes that exclude the warrant requirement constitutes grounds for retrial of a final and conclusive judgment of guilty?", "answer": "Because a judgment dismissing the case is not a final and conclusive judgment of guilty, a claim for retrial against it is improper. Although a warrantless arrest and detention pursuant to unconstitutional statutes cannot readily be evaluated directly as a crime of duty, it constitutes grounds for retrial under Article 420, subparagraph 7 of the Criminal Procedure Act in a manner analogous to cases in which the crime of duty of unlawful arrest and confinement is recognized.", "disposition": {"value": "dismissal", "quote": "All reappeals are dismissed."}, "standard": {"value": "states requirements", "quote": "pursuant to unconstitutional statutes that, through analogous application as described above, exclude the warrant requirement"}, "factors": ["The purpose and ideals of the retrial system", "The intent of Article 420, subparagraph 7 of the Criminal Procedure Act", "That the statute itself is unconstitutional", "The resulting infringement of the people's fundamental rights", "The constitutional right to receive a trial"], "precedent": {"value": "sets a new standard", "quote": "pursuant to unconstitutional statutes that, through analogous application as described above, exclude the warrant requirement"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Is the analogous application of the same grounds for retrial also permitted for infringements of fundamental rights arising from unconstitutional investigative statutes other than violations of the warrant requirement?", "batch": "b16", "translatedFrom": "ko"}
{"caseNo": "2015Mo2229", "issue": "Where the written judgment of the military court-martial in the Yeosun incident has not been discovered, can the existence of a final and conclusive judgment of guilty and grounds for retrial arising from unlawful arrest and confinement be recognized on the basis of other materials?", "answer": "The majority opinion regarded the appellate court's determination, which recognized warrantless unlawful arrest and confinement and the grounds for retrial arising therefrom on the basis of circumstantial evidence and the circumstances of the Records, as justifiable. Since the existence of a written judgment and the existence of a judgment are distinct, the pronouncement and finalization may be recognized by other materials, and a judgment that has been rendered may become the subject of retrial even if it is void by operation of law due to a grave unconstitutional or unlawful ground.", "disposition": {"value": "dismissal", "quote": "The re-appeal is dismissed."}, "standard": {"value": "Application to the facts", "quote": "A case holding justifiable the appellate court's determination that a judgment subject to retrial, being a final and conclusive judgment of guilty, exists."}, "factors": ["The point that in a criminal trial, formation of a conviction need not necessarily be based on direct evidence and may also be based on circumstantial evidence", "The point that it need not necessarily follow the strict method of examination of evidence applicable to trial proceedings", "Although the written judgment of the judgment subject to retrial has not been discovered, the existence of a judgment and the existence of a written judgment are distinct, and", "The document, Superior Court-Martial Order No. 3, prepared under the name of the Commander of the Martial Law District Command", "Insofar as the fact is recognized that the judgment was pronounced, finalized, and executed,"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the materials for specifying the facts charged are insufficient in the merits of the retrial, what final judgment should be rendered?", "batch": "b16", "translatedFrom": "ko"}
{"caseNo": "2015Do3260", "issue": "Under what circumstances should the appellate court respect or reverse the sentencing determination of the first-instance court, and is it unlawful to reverse on the ground that it differs from the appellate court's own sentencing determination?", "answer": "Where there has been no change in the sentencing conditions and the first-instance court's sentencing falls within a reasonable range of discretion, it is proper to respect it, but where it exceeds the limits of discretion or where, in light of new materials, its maintenance is unjust, it must be reversed. The majority opinion, recognizing the appellate court's independent sentencing discretion, took the view that a reversal based on a mere difference of opinion, or the mere failure to state individually the reasons for sentencing, cannot be deemed unlawful.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Where the first-instance court's sentencing determination is assessed as having exceeded the reasonable limits of discretion, or where, upon comprehending the materials newly produced in the course of the appellate court's sentencing hearing, it is recognized that maintaining the first-instance court's sentencing determination as it stands would be unjust, or in like circumstances, the appellate court shall reverse the first-instance judgment whose imposition of sentence is unjust."}, "factors": ["Where, compared with the first instance, there has been no change in the sentencing conditions, and", "Where the first-instance court's sentencing does not exceed a reasonable range of discretion", "The matters constituting sentencing conditions and the sentencing standards that appeared in the course of the first-instance sentencing hearing", "Materials newly produced in the course of the appellate court's sentencing hearing", "Where the sentencing materials on which the judgment of the court below was based and the determination made in respect thereof are set forth without contradiction"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 94Do2584 decided December 13, 1994 (Supreme Court Gazette, first half of 1995, 538)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What degree of importance must newly submitted sentencing materials on appeal have before maintaining the first-instance sentencing as it stands is recognized as unjust?", "batch": "b17", "translatedFrom": "ko"}
{"caseNo": "2015Do12400", "issue": "How should the presentation of a warrant and the guarantee of participation in the process of collecting electronic information be carried out, and in what cases are evidence collected in violation of procedure and secondary evidence based thereon recognized as having admissibility of evidence?", "answer": "The warrant shall be presented to each person subject to seizure so that the necessary particulars may be sufficiently known, and in the process of collecting electronic information, measures shall be guaranteed to prevent the arbitrary reproduction of information unrelated to the opportunity to participate. The exceptional admissibility of evidence of illegally obtained evidence requires the prosecutor to prove special circumstances, and secondary evidence is determined comprehensively, focusing on the dilution or severance of causation, upon consideration of all circumstances of the procedural violation and the subsequent collection.", "disposition": {"value": "reversal and self-adjudication", "quote": "Reverses the judgment of the court below as to the portion concerning violation of the Personal Information Protection Act, and dismisses the defendant's appeal as to this portion."}, "standard": {"value": "totality of circumstances", "quote": "In the process of collecting secondary evidence anew on the basis of primary evidence, all circumstances additionally arising in the course thereof shall be considered wholly and comprehensively in light of the particular case, focusing primarily on whether causation has been diluted or severed."}, "factors": ["the purpose of the procedural provision and the content and degree of its violation,", "the specific circumstances of the violation and the possibility of avoiding it,", "the nature of the right or legal interest sought to be protected by the procedural provision, the degree of its infringement, and its relation to the defendant,", "The degree of relatedness, such as causation between the act violating Procedure and the evidence collection", "the knowledge and intent of the investigative authorities,"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court En Banc Decision 2011Mo1839, decided July 16, 2015 (Supreme Court Gazette 2015Ha, 1274)"}, "burden": {"value": "prosecutor", "quote": "The prosecutor must prove the existence of concrete and special circumstances sufficient to regard the case as falling under such an exceptional case."}, "openQuestion": "What subsequent collection circumstances must exist for it to be recognized that causation between the primary illegally obtained evidence and the secondary evidence has been sufficiently diluted or severed?", "batch": "b17", "translatedFrom": "ko"}
{"caseNo": "2015Da240447", "issue": "Under what conditions does security provided by a debtor in a state of inability to pay at the same time as a new loan not become subject to the right of avoidance?", "answer": "If the provision of security is made concurrently and in exchange with the new loan, there is a reasonable balance between the loan amount and the value of the subject property of the security, and there arises no concern of a disposition prejudicing holders of bankruptcy claims, such as concealment of the loan proceeds or a gift, the act does not fall within an avoidable act.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "if it was made concurrently and in exchange with a new loan, a reasonable balance can be recognized between the loan amount and the value of the subject property of the security, and thereby it does not give rise to concern that the debtor may make a disposition prejudicing holders of bankruptcy claims, such as concealing the loan proceeds or making a gift,"}, "factors": ["if it was made concurrently and in exchange with a new loan,", "if a reasonable balance can be recognized between the loan amount and the value of the subject property of the security, and", "if it does not give rise to concern that the debtor may make a disposition prejudicing holders of bankruptcy claims, such as concealing the loan proceeds or making a gift,"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent may a difference between the loan amount and the value of the subject property of the security exist while a reasonable balance is still recognized?", "batch": "b17", "translatedFrom": "ko"}
{"caseNo": "2015Da204762", "issue": "Until when must a wage claimant file a claim for distribution and make a substantiation in order to receive preferential distribution, and how is the scope of wages and retirement pay subject to preferential distribution determined where the claimant has acquired a maximum amount mortgage?", "answer": "In principle, a wage claimant must properly file a claim for distribution by the deadline for filing claims for distribution; however, where the claimant holds a maximum amount mortgage that was registered before the registration of the commencement decision of the auction and is extinguished by the sale, the right to preferential payment of the secured claim may be substantiated until before the distribution table is confirmed. In this case, wages for the final three months are determined, where the employment relationship has ended by the deadline, as of the date of termination, and where it continues, by counting back from the deadline; and retirement pay for the final three years must likewise have a ground for payment arising before the deadline date.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Where, before the distribution table is confirmed, it is substantiated that the secured claim is a wage claim having a right to preferential payment, preferential distribution may be received over senior maximum amount mortgagees and others in respect of claims concerning wages for the final three months or retirement pay for the final three years, etc."}, "factors": ["A maximum amount mortgagee whose mortgage was registered before the registration of the commencement decision of the auction and is extinguished by the sale", "Where, before the distribution table is confirmed, it is substantiated that the secured claim is a wage claim having a right to preferential payment", "Where the employee's employment relationship has already ended by the deadline for filing claims for distribution", "Where the employee's employment relationship has not ended even as of the deadline for filing claims for distribution", "A ground for payment of retirement pay must have arisen before the deadline date for filing claims for distribution."], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 98Da47412 decided April 9, 1999, Supreme Court Decision 2006Da1930 decided June 26, 2008 (Supreme Court Gazette 2008Ha, 1044)"}, "burden": {"value": "The party asserting it", "quote": "Where a wage claimant having a right to preferential payment has acquired a maximum amount mortgage over the employer's property, with current and future wage or retirement pay claims as the secured claim, even if the claimant did not substantiate by the deadline for filing claims for distribution that these are wage claims having priority, if the claimant substantiates before the confirmation of the distribution table that the secured claim is a wage claim having a right to preferential payment,"}, "openQuestion": "What specific materials, and what degree of substantiation, are required to substantiate that the secured claim of the maximum amount mortgage is a wage claim having a right to preferential payment?", "batch": "b17", "translatedFrom": "ko"}
{"caseNo": "2013Ma1052", "issue": "In what circumstances does an act affecting the exercise of rights or the fulfillment of conditions of a financial investment product constitute an unfair practice under the Financial Investment Services and Capital Markets Act, thereby giving rise to liability for damages to investors?", "answer": "Whether an act constitutes an unfair practice is determined by comprehensively considering the structure and trading method of the product, the characteristics of the market, the relationship between the parties, and the circumstances before and after the act. In products linked to the price of an underlying asset at a particular point in time, where the exercise of rights or the fulfillment of conditions is affected by means or contrivances that are unfair in light of socially accepted notions, and damage has been caused to the investor by such violation, the investor may claim damages.", "disposition": {"value": "reversal and remand", "quote": "The order of the court below is reversed, and the Case is remanded to Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "The determination must be made by comprehensively considering the relationship between the investor and the actor, all circumstances before and after the act, and other related matters."}, "factors": ["The structure and trading method of the relevant financial investment product and the course of the transaction", "The characteristics of the market in which the financial investment product is traded", "Timing of termination", "The relationship between the investor and the actor", "All circumstances before and after the act"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where a transaction in the underlying asset has both an ordinary risk-management purpose and a purpose of affecting the fulfillment of conditions, what circumstances operate decisively in recognizing an unfair practice?", "batch": "b17", "translatedFrom": "ko"}
{"caseNo": "2013Do9605", "issue": "When Evidence obtained by the same scientific analytical technique, which is susceptible to error, yields conflicting results as to the charged facts, how should the probative value of each piece of Evidence be determined?", "answer": "The identity of the objects of analysis and the Procedure, the potential for error, the direction and reasons of the differences in results, and the like, must be examined closely. Unless the difference in results is explained beyond reasonable doubt and the potential for error in the result supporting guilt is verified to be so small as to be negligible, one should not rashly rely on that result alone or lightly dismiss contrary Evidence.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the main courthouse of Gwangju District Court."}, "standard": {"value": "totality of circumstances", "quote": "The court must determine the probative value of each method of Evidence through close examination of whether the object of analysis, the analyst, the analysis Procedure and method, etc. under each method of Evidence are identical, the degree of the inherent potential for error, whether the differing analysis results exhibit a certain directionality, and whether the reasons for which the conflicting analysis results arose are reasonable."}, "factors": ["Whether the object of analysis, the analyst, the analysis Procedure and method, etc. are identical", "The degree of the inherent potential for error", "Whether the differing analysis results exhibit a certain directionality", "Whether the reasons for which the conflicting analysis results arose are reasonable"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What level of verification is specifically required in order to find that the potential for error in the analysis results is extremely small to the point of being negligible?", "batch": "b18", "translatedFrom": "ko"}
{"caseNo": "2013Do7718", "issue": "In the customs clearance inspection procedure for postal articles, is an inspection lawful where a postal article is opened without a warrant and a sample is collected and its components analyzed?", "answer": "An inspection aimed at appropriate customs clearance and the like is an administrative investigation and does not constitute a compulsory measure by an investigative agency. Accordingly, even if it was conducted without a warrant, it is not unlawful unless there are special circumstances.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "being of the nature of an administrative investigation aimed at appropriate customs clearance and the like for import and export goods, it cannot be regarded as a compulsory measure by an investigative agency; therefore,"}, "factors": ["The fact that it is aimed at appropriate customs clearance of import and export goods", "The customs clearance inspection procedure for postal articles", "The nature of an administrative investigation", "As it cannot be regarded as a compulsory measure by an investigative agency,"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where the outward form of a customs clearance inspection is present, what special circumstances render an inspection without a warrant unlawful?", "batch": "b18", "translatedFrom": "ko"}
{"caseNo": "2013Do5214", "issue": "Whether indirect control of a transaction constitutes a matched-order purchase and sale, and by what standards are the elements of breach of trust in financial support to affiliate companies, intent, and the risk of loss from new support provided to repay existing guarantee obligations determined?", "answer": "Where a controlling entity of the seller and the buyer plans and controls the transaction so that an actual purchase and sale is concluded, this is also included in a matched-order purchase and sale; support to an affiliate company likewise constitutes an act of breach of trust if provided with sufficient awareness of the loss or recklessly without reasonable debt recovery measures, and intent is determined individually according to the various circumstances of business judgment. Where support caused new funds to be used for repayment of existing guarantee obligations of the guaranteed debtor lacking repayment capacity, it cannot be said that a new risk of loss, separate from the existing guarantee obligations, was created.", "disposition": {"value": "partial reversal and remand", "quote": "reverse the respective portions, and remand the cases in these portions to Seoul High Court."}, "standard": {"value": "states requirements", "quote": "where funds were lent recklessly without taking reasonable debt recovery measures, such as obtaining sufficient security, such lending of funds or payment guarantee is an act of obtaining a benefit for another person and causing loss to the company, and thus constitutes an act of breach of trust against the company, and"}, "factors": ["an act of purchasing or selling the same securities at the same time and at the same price after the two parties have colluded in advance", "reasonable debt recovery measures", "the background and motive leading to the business judgment in question", "the probability of the occurrence of a loss and the probability of the acquisition of a gain", "where the new funds were caused to be used for repayment of debts already guaranteed"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2009Do1149 decided October 28, 2010 (Supreme Court Gazette, Second Half of 2010, 2207)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where only a portion of the newly supported funds was used for repayment of existing guarantee obligations, how is the scope of the new risk of loss determined?", "batch": "b18", "translatedFrom": "ko"}
{"caseNo": "2011Du30687", "issue": "Do the prior notice and opinion submission procedures under the Administrative Procedures Act also apply to the ex officio dismissal of a public official in a special service position, and up to what scope may these be omitted?", "answer": "The application of the Administrative Procedures Act is not entirely excluded merely because a disposition is a personnel disposition of a public official; rather, application is excluded only for dispositions which, by their nature, are difficult or unnecessary to subject to procedure, or dispositions for which a procedure equivalent thereto is required to be followed. The same legal principle applies to the ex officio dismissal of a public official in a special service position, and where the case does not fall within the exceptions of exclusion of application or omission of procedure, a disposition rendered without giving prior notice or an opportunity to submit opinions is unlawful.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "It must be deemed that the application of the Administrative Procedures Act is excluded only in the case of dispositions which are recognized, by their nature, as being difficult or unnecessary to subject to administrative procedure, or dispositions for which a procedure equivalent to administrative procedure is required to be followed, and"}, "factors": ["Dispositions imposing obligations on a party or restricting rights and interests", "Substantial grounds sufficient to recognize that the hearing of opinions is manifestly difficult or plainly unnecessary", "Dispositions which are recognized, by their nature, as being difficult or unnecessary to subject to administrative procedure", "Dispositions for which a procedure equivalent to administrative procedure is required to be followed"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2006Du20631 decided September 21, 2007 (Supreme Court Gazette 2007, 1682)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "In order for procedures under statutes and regulations governing personnel affairs of public officials to be recognized as procedures equivalent to administrative procedure, what procedural safeguards must they possess?", "batch": "b18", "translatedFrom": "ko"}
{"caseNo": "2011Da56637", "issue": "Can a reservation-type collective claim transfer-security agreement concluded around the time of a dishonored bill and a creditor's exercise of the right to complete the reservation be avoided in bankruptcy proceedings, and who bears the burden of proving the beneficiary's good faith?", "answer": "An agreement providing security to only a specific creditor is a preferential act, and a declaration of intent to complete the reservation made by a creditor in collusion with the debtor is also subject to avoidance, since there are special circumstances warranting that it be treated as identical to the act of the debtor, and in this case no exception based on social propriety or inevitability is recognized. The beneficiary's bad faith is presumed, so the beneficiary must prove his or her own good faith.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "Application to the facts", "quote": "A case in which the Court affirmed the lower court's determination that Company B's declaration of intent to complete the reservation involved special circumstances warranting that the act be treated as substantially identical to Company A's act, and that the act therefore fell within the objects of avoidance provided in Article 391 subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act."}, "factors": ["A preferential act that evades the principle of equality of creditors in bankruptcy proceedings by providing security to only a specific creditor", "Company A was in a state in which its financial condition had rapidly deteriorated", "In collusion with Company A, receiving from Company A information relating to claims for price against C and others and exercising the right to complete the reservation and the option", "the state of the debtor's property and business at the time of the act", "The maturity date of the promissory note for which the payment date had been extended had not arrived"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2009Da75291 decided May 13, 2011 (Supreme Court Gazette 2011Sang, 1125)"}, "burden": {"value": "the opposing party", "quote": "The beneficiary himself or herself bears the burden of proof as to good faith."}, "openQuestion": "Where there is no collusion with the debtor, what other special circumstances would permit a creditor's exercise of the right to complete the reservation to be treated as identical to an act of the debtor?", "batch": "b18", "translatedFrom": "ko"}
{"caseNo": "2010Do14487", "issue": "What proof and credibility assessment are required to find the charged facts of receiving bribes established solely on the statement of the provider of money or goods, without objective physical evidence?", "answer": "All specific criminal facts, such as the date and time of the offense specified in the indictment, must be proven beyond reasonable doubt, and the statement of the provider of money or goods must possess admissibility of evidence and credibility of that degree. Because the content of the statement, the declarant's interests, and similar matters must be examined together, and the truth must be discerned among conflicting statements, the judgment of the court below, which selectively credited only some of the provider's statements and found the defendant guilty of all charges, is unlawful.", "disposition": {"value": "reversal and remand", "quote": "Reverse the judgment of the court below and remand the case to the collegiate panel of the principal Changwon District Court."}, "standard": {"value": "totality of circumstances", "quote": "In determining whether a statement is credible, one must consider not only the rationality of the content of the statement itself, its objective reasonableness, and its consistency before and after, but also the declarant's character and the presence or absence of any interest gained from making the statement."}, "factors": ["The rationality of the content of the statement itself", "Objective reasonableness", "Consistency before and after", "whether there is an interest to be gained from that statement,", "whether efforts to escape from the state of distress thereby could have affected the statement,"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2005Do4202 decided February 14, 2008 (Gong 2008Sang, 407)"}, "burden": {"value": "prosecutor", "quote": "Where the prosecution's proof does not sufficiently reach a degree that inspires such conviction, the court must decide to the benefit of the defendant, even though doubts of guilt arise from the fact that the defendant's assertion or excuse is contradictory or leaves something unexplained."}, "openQuestion": "What additional evidence, if secured at the remand trial, could exclude reasonable doubt as to each charged fact of receiving money or goods?", "batch": "b19", "translatedFrom": "ko"}
{"caseNo": "2010Da72076", "issue": "Even after the superior Act was amended so that the procedures for payment of construction supervision fees, etc. are prescribed by ministerial ordinance, can external binding force be recognized for the former public notice, the Payment Standards for Construction Supervision Fees?", "answer": "As administrative rules that deviate from the procedure or method of a particular exercise of authority prescribed in the superior Act or regulation are not recognized as possessing external binding force as delegated legislation, the effect of the former public notice is not maintained either. This public notice, which restricts the freedom of contract, etc. of the people, cannot be regarded as an enforcement order, and the supplementary provisions of the Housing Act do not sustain the effect of a public notice that exceeds the limits of delegation.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Even where the superior Act or regulation delegated the determination of details, etc. to an Enforcement Rule and such matters were nevertheless determined by a public notice or other administrative rule, they likewise cannot be recognized as effective as delegated legislation possessing external binding force."}, "factors": ["The 'procedure' or 'method' of exercising authority specifically prescribed in the delegating provision of the superior Act or regulation", "The 'public notice' form of the Minister of Construction and Transportation", "Content restricting the freedom of contract, etc. of the general public", "So long as it is not repugnant to the wholly amended Housing Act"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 97Nu13474 decided November 26, 1999 (Supreme Court Gazette 2000, 70)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the parties expressly incorporated the former Payment Standards for Construction Supervision Fees into the contract, can an obligation to pay in accordance with those standards be recognized?", "batch": "b19", "translatedFrom": "ko"}
{"caseNo": "2010Da58889", "issue": "Can lawful acquisition of land ownership be asserted, by virtue of res judicata, against a jongdong member who is merely a co-litigation party, on the basis of a final and conclusive judgment ordering exhumation of graves and delivery of land against the jongdong?", "answer": "Res judicata arises only as to the subject matter of suit, namely the claims for exhumation of graves and delivery of land, etc., and not as to the ownership determined in the reasons for the judgment. The jongdong and its members are separate entities, and therefore the res judicata of a final and conclusive judgment rendered against the jongdong does not extend to a jongdong member who is merely a co-litigation party.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the main court of Daejeon District Court."}, "standard": {"value": "Application to the facts", "quote": "its effect reaches only between the jongdong of A and the jongdong of B and does not extend to C, who is merely in the relationship of a co-litigation party as a member of the jongdong of B,"}, "factors": ["The claims for exhumation of graves and delivery of land, etc. constituting the subject matter of suit", "Ownership that was determined only in the reasons for the judgment", "An unincorporated association is an entity distinct from its representative or members", "C, who is merely in the relationship of a co-litigation party"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 96Da31406 decided November 15, 1996 (Supreme Court Gazette 1997, 14)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "When the matter is separately examined in the relationship with the jongdong member, is A's acquisition of ownership of the real estate valid under substantive law?", "batch": "b19", "translatedFrom": "ko"}
{"caseNo": "2009Do5824", "issue": "If an employee's violation of the Road Act is found, can the corporation be punished immediately under the dual punishment provision?", "answer": "The corporation can be punished only where it neglected to exercise due care or its duty of management and supervision in connection with the relevant work. Whether that duty was breached must be determined by comprehensively considering all circumstances, including the violation and harm, the possibility of supervision, and actual preventive measures; accordingly, the judgment of the court below, which punished the corporation solely on the basis of the employee's violation, is unlawful.", "disposition": {"value": "partial reversal and remand", "quote": "The portion of the judgment of the court below concerning Defendant 2 Co., Ltd. is reversed, and that portion of the case is remanded to the collegiate panel of the main court of Daejeon District Court."}, "standard": {"value": "totality of circumstances", "quote": "Whether the duty was breached must be determined by taking an overall, comprehensive view of the measures actually taken by the corporation to prevent the violation."}, "factors": ["The legislative purpose of the statute concerned", "The degree of infringement of legal interests anticipated from the violation of the penal provision", "The specific form of the violation and the degree of harm or consequences actually caused thereby", "The scale of the corporation's business and the possibility of supervising the actor, or the specific relationship of direction and supervision", "The measures actually taken by the corporation to prevent the violation"], "precedent": {"value": "follows existing precedent", "quote": "Constitutional Court Decision 2008Hun-Ka16 (full bench) decided July 30, 2009 (Constitutional Court Gazette 154, 1409)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Can the education and supervision measures actually taken by the corporation in this case be evaluated as having fulfilled the duty to exercise due care or the duty of management and supervision?", "batch": "b19", "translatedFrom": "ko"}
{"caseNo": "2009Do1374", "issue": "Under the former Securities and Exchange Act, how are the prohibited scope of dissemination of false information and the use of documents and the use of unpublished information, and the profits obtained from the violation, determined?", "answer": "Whether false information was disseminated and whether there was a purpose of improper gain are determined by comprehensively considering the relevant circumstances; gains include intangible benefits and avoidance of losses as well as future gains, and the active use of false documents may also constitute a prohibited act of use. Profits obtained from the violation are those connected to the risk by causation and must be proved by the prosecutor, and material information is created once it becomes sufficiently concrete to have significant value for investment judgment, and its use for the account of another person is likewise prohibited.", "disposition": {"value": "partial reversal and remand", "quote": "The portion of the judgment of the court below concerning the violation of the Securities and Exchange Act is reversed, and that portion of the case is remanded to Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "The actor's position, the business condition of the relevant enterprise and the trend of its share price, and the specific expressions and overall import of the interview and reporting content"}, "factors": ["the position of the actor,", "The business condition of the relevant enterprise and the trend of its share price", "The specific expressions and overall import of the interview and reporting content", "The motive, circumstances, manner, and duration of the violation, and whether a third party was involved", "The condition of the securities market and all other factors that may have a material effect on the share price"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2007Do6336 decided November 15, 2007"}, "burden": {"value": "prosecutor", "quote": "The burden of proof as to that lies with the prosecutor."}, "openQuestion": "In this case, once other factors affecting share price movements, such as market conditions or the intervention of third parties, are taken into account, what specifically is the amount of profits recognized as connected to the violation by causation?", "batch": "b19", "translatedFrom": "ko"}
{"caseNo": "2009Do11448", "issue": "Must the crediting of days of pre-trial detention be separately determined in the judgment, do the sentencing guidelines have binding legal force, and does reference to them in sentencing for a crime prosecuted before they took effect violate the principle against retroactive application?", "answer": "In accordance with the decision of unconstitutionality, the entire period of pre-trial detention before pronouncement of the judgment is automatically credited as a matter of law toward the principal sentence, and thus no separate determination is necessary. As the sentencing guidelines are reference standards without binding legal force, reference to them in sentencing for a crime prosecuted before they took effect does not amount to a retroactive application of an unfavorable law.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "The foregoing sentencing guidelines do not have binding legal force,"}, "factors": ["The entire days of pre-trial detention before pronouncement of the judgment are automatically credited as a matter of law toward the principal sentence", "They are designed to have general persuasive force by virtue of the soundness of their content", "A crime for which public prosecution was instituted before the 'sentencing guidelines' took effect", "Determining the sentence with reference to the 'sentencing guidelines'"], "precedent": {"value": "follows existing precedent", "quote": "The foregoing provision ceased to be effective by the decision of unconstitutionality rendered in Constitutional Court Case 2007Hun-Ba25 decided June 25, 2009."}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the content of the sentencing guidelines has been changed, what limitations apply to reference to the amended guidelines in sentencing for a crime prosecuted before the change?", "batch": "b20", "translatedFrom": "ko"}
{"caseNo": "2008Do9623", "issue": "To what degree of concreteness must unpublished material information be developed to be regarded as created, and does information contemplating the cancellation of shares against profits after acquisition of treasury shares fall within it?", "answer": "Material information is created when it has become concrete to such a degree that a reasonable investor, comparatively evaluating the materiality of the information and the probability of the fact occurring, would deem it to have significant value in making a trading decision. In this case, the information contemplating cancellation of shares against profits after acquisition of treasury shares is found to have the probability of materializing and materiality, and thus constitutes unpublished material information.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to Seoul High Court."}, "standard": {"value": "states requirements", "quote": "If the information has become concrete to such a degree that it is deemed to have significant value in making a decision concerning the trading of securities, material information should be regarded as created."}, "factors": ["The position of a reasonable investor", "The materiality of that information and the probability of the fact occurring", "Significant value in making a decision concerning the trading of securities", "There was already sufficient probability of its materializing, and"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2008Do6219 decided November 27, 2008 (Supreme Court Gazette 2008, 1840)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "At what specific stage does the contemplation of cancellation of shares against profits after acquisition of treasury shares satisfy the requirements for the creation of material information?", "batch": "b20", "translatedFrom": "ko"}
{"caseNo": "2008Do11437", "issue": "By what standard may secondary evidence obtained on the basis of a confession taken without advisement of the right to remain silent be used as evidence for a finding of guilt?", "answer": "Secondary evidence is also excluded in principle, but the admissibility of evidence may exceptionally be recognized by comprehensively weighing all circumstances of the initial procedural violation and the subsequent process of collection, with focus on the attenuation or severance of causation. The in-court statements of the defendant and the victim in this case may be used in light of such circumstances as the passage of time, the assistance of counsel, lawful summons, and voluntary statements.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "totality of circumstances", "quote": "Even all the circumstances that arose additionally in the course of collecting secondary evidence afresh on the basis of primary evidence"}, "factors": ["the purpose of the procedural provision and the content and degree of its violation,", "the specific circumstances of the violation and the possibility of avoiding it,", "the nature of the right or legal interest sought to be protected by the procedural provision, the degree of its infringement, and its relation to the defendant,", "the degree of relatedness, such as causation between the procedural violation and the evidence collection,", "the knowledge and intent of the investigative authorities,"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2007Do3061 decided November 15, 2007, en banc judgment (Supreme Court Gazette 2007ha, 1974)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "How much passage of time and what degree of assistance of counsel following the initial unlawful confession are required before attenuation or severance of causation can be recognized?", "batch": "b20", "translatedFrom": "ko"}
{"caseNo": "2008Da36930", "issue": "Must an auditor who failed to properly verify the address of the financial institution's inquiry recipient compensate even for the damages that expanded through the embezzlement that continued after the external audit was completed?", "answer": "The auditor has a duty to verify the accuracy of the address of the inquiry recipient; however, liability for damages requires adequate causation between that error and the damages. Absent special circumstances, that duty is not aimed at directly preventing future misconduct; accordingly, the court below, which denied adequate causation between the embezzlement losses that expanded after the completion of the audit in this case, is affirmed as just.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "In determining the existence of adequate causation, a comprehensive consideration must be given to the general probability of the occurrence of the result, the purpose of statutes and other norms of conduct imposing duties on the auditor, the manner of the tortious act, and the nature of the infringed interest and the extent of the harm, among others."}, "factors": ["The general probability of the occurrence of the result", "The purpose of statutes and other norms of conduct imposing duties on the auditor", "The manner of the tortious act", "The nature of the infringed interest", "The extent of the harm"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2005Da21821 decided July 13, 2007 (2007 Publicly Reported Supreme Court Decisions (Second Half), 1257)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Under what special circumstances could adequate causation be recognized between the breach of the duty to verify the address of the inquiry recipient and the embezzlement losses that continued after the completion of the audit?", "batch": "b20", "translatedFrom": "ko"}
{"caseNo": "2007Du6946", "issue": "How is it determined whether a disposition imposing a surcharge in lieu of a 15-day business suspension for an act of opening and selling pharmaceuticals, pursuant to the disposition criteria of the Ordinance, exceeded the scope of discretion or abused discretion?", "answer": "It is determined by comparing the content of the violation and the public interest purpose, the degree of infringement upon the public interest, and the disadvantage to the individual, among other matters; and although the Ordinance's disposition criteria have no external binding force, a violation of discretion must not be found absent reasonable grounds to recognize illegality in the criteria themselves or manifest impropriety in the disposition. The disposition for the imposition of a surcharge in this Case is difficult to view as having exceeded the scope of discretion or as having abused discretion.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "objectively examining the content of the violation constituting the grounds for the disposition, the public interest purpose sought to be achieved by the pertinent disposition, and the attendant circumstances following therefrom"}, "factors": ["The content of the violation constituting the grounds for the disposition", "The public interest purpose sought to be achieved by the pertinent disposition", "The degree of infringement upon the public interest", "The disadvantage to be suffered by the individual as a result of that disposition", "The content and purport of the provisions of the relevant statutes"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court en banc judgment 2003Du1684 rendered June 22, 2006 (Supreme Court Gazette 2006Ha, 1363)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even in the case of a surcharge under the disposition criteria, can it be recognized as manifestly improper in light of certain specific circumstances?", "batch": "b20", "translatedFrom": "ko"}
{"caseNo": "2006Do4994", "issue": "Under what circumstances may an appellate court overturn a first-instance determination denying credibility to a witness's statement?", "answer": "It is possible only in exceptional cases where there are special circumstances warranting the view that the first-instance credibility determination was clearly erroneous, or where, upon comprehensively considering even the additional evidence examination, maintaining that determination would be manifestly unjust. In particular, in order to recognize the credibility of a statement supporting the facts charged, there must be sufficient and persuasive manifest circumstances rendering the first-instance determination of rejection untenable.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and this case is remanded to the collegiate panel of the Seoul Western District Court."}, "standard": {"value": "states requirements", "quote": "It must be a case in which sufficient and persuasive manifest circumstances appear that render untenable the first-instance determination rejecting the credibility of the statement."}, "factors": ["The contents of the first-instance judgment and the evidence lawfully subjected to examination as evidence at first instance", "The results of the evidence examination additionally conducted up to the close of argument at the appellate instance", "The appearance and demeanor of the witness when making the statement"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2005Do130 decided May 26, 2005 (Supreme Court Gazette 2005ha, 1088)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Can manifest circumstances warranting reversal of the first-instance credibility determination be recognized solely on the basis of the result of re-examining the witness at the appellate instance?", "batch": "b21", "translatedFrom": "ko"}
{"caseNo": "2005Do4471", "issue": "Under what circumstances does a false statement in an external auditor's audit report constitute an offense, how is it proved, and is criminal liability under a provision for concurrent punishment of a corporation that has ceased to exist through a merger succeeded to by the surviving company?", "answer": "If an external auditor knowingly records untrue content that is inconsistent with the auditor's own recognition and judgment, this constitutes a false statement, and the same applies where the auditor, recognizing distortions caused by fraudulent accounting, records only an unqualified opinion without reflecting them; the falsity and intent may be proved through related indirect facts. Criminal liability under a provision for concurrent punishment of a corporation that has ceased to exist through a merger is not succeeded to by the surviving company.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "This refers to a case where, knowing that the auditor's own recognition and judgment is inconsistent with the content recorded in the audit report, the auditor deliberately records content that is untrue."}, "factors": ["Indirect facts having substantial relevance thereto", "Ordinary rules of experience", "The fact that there is a distortion in the balance carried forward from the preceding period in the balance sheet for the year in question", "The punishment of a corporation under a provision for concurrent punishment of a corporation is no more than a type of penalty", "The provision that stipulates 'where the defendant corporation ceases to exist' as grounds for a decision of dismissal of prosecution"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2002Du1946 decided July 8, 2004 (Supreme Court Gazette 2004 Second Half, 1342)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where an external auditor records some of the distortions in the audit report while maintaining an unqualified opinion, to what extent must the recording and the reflection in the opinion be made to avoid a false statement?", "batch": "b21", "translatedFrom": "ko"}
{"caseNo": "2005Da56865", "issue": "Under what requirements and by what method is the bankruptcy trustee's right of avoidance exercised against gratuitous provision of security for an affiliated company, and how is the scope of restitution determined?", "answer": "The provision of security for an affiliated company without direct and real economic consideration is a gratuitous act, and the statute of limitations may be interrupted by an action for performance or confirmation based on the avoidance, and where the creation of a pledge is avoided, there is no need to separately avoid the acts of enforcement. Restitution is limited to the amount of the claim lost by the creditor to the extent that the trustee has validly received payment by subrogation from the principal obligor, and a good-faith recipient of the gratuitous act bears liability to return within the limits of the existing benefit.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and this case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Insofar as the bankrupt does not obtain direct and real economic benefit as consideration for the guarantee or provision of security, the gratuitous nature of the act cannot be denied, and"}, "factors": ["Direct and real economic benefit", "Requirements for the exercise of the right of avoidance, such as the gratuitous nature, harmfulness, and impropriety", "The said payment by the principal obligor is valid as payment to a quasi-possessor of the claim", "A portion of the claim amount lost by the creditor", "The fact that the act harmed the bankruptcy claimants and the fact that a suspension of payment or a bankruptcy petition was made against the bankrupt"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 97Da20755 decided March 26, 1999 (Gong1999Sang, 760)"}, "burden": {"value": "The party asserting it", "quote": "Unless the original creditor, while proving that it has actually performed the obligation of restitution in response to the exercise of the right of avoidance by the bankruptcy claimant and that the original claim has been revived, demands to be treated as a bankruptcy claimant"}, "openQuestion": "Under what specific conditions can the indirect benefit obtained from support for an affiliated company be recognized as direct and real economic consideration for the provision of security?", "batch": "b21", "translatedFrom": "ko"}
{"caseNo": "2005Geu147", "issue": "Can the liquidation value of a reorganization security right holder be distributed in shares, or can repayment conditions be set differently in accordance with the liquidation value, and must the amended plan also guarantee the liquidation value for interest?", "answer": "Distribution of the liquidation value in shares is not permitted absent the security interest holder's consent or special circumstances such as value substantially equivalent to cash, liquidity, and stability; however, differences in repayment conditions based on the liquidation value of the subject property of the security interest do not violate the principle of equality. Where the existing reorganization plan provided for repayment with interest added to principal and the liquidation value equals or exceeds the principal and interest, the amended plan must also guarantee the liquidation value up to and including the interest.", "disposition": {"value": "partial reversal and remand", "quote": "The portion of the order of the court below concerning the special appellant Saneun First Securitization Specialized Co., Ltd. is reversed, and this part of the Case is remanded to Busan High Court."}, "standard": {"value": "states requirements", "quote": "Absent special circumstances such as the consent of the reorganization security right holder in question, or the shares of the reorganization company having a value substantially equivalent to cash and possessing qualities comparable to cash in terms of liquidity, stability, and the like, this impairs the substantive value of the reorganization security right and therefore cannot be permitted."}, "factors": ["Consent of the reorganization security right holder in question", "Value substantially equivalent to cash", "Liquidity and stability", "Type of the subject property of the security interest, ranking of the security interest", "Where the liquidation value of that subject property of the security interest equals or exceeds the principal and interest of the reorganization security right"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2005Da33138 decided October 27, 2005 (Supreme Court Gazette 2005Ha, 1843)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "By what valuation date and specific indicators should it be determined whether the shares of the reorganization company possess value comparable to cash and liquidity and stability?", "batch": "b21", "translatedFrom": "ko"}
{"caseNo": "2003Do4320", "issue": "By what criteria is it determined whether a transaction in which inside information was disclosed to the employee in charge of the counterparty corporation constitutes use of undisclosed information, and whether bribery for breach of trust, conspiracy, and market manipulation are established?", "answer": "If an employee who received important inside information, without reporting it to the person with decision-making authority of the corporation or receiving instructions from that person, received money for an improper solicitation and consummated the transaction with intent to breach trust, this cannot be regarded as a complete disclosure of information to the corporation. An improper solicitation is determined by factors such as the integrity of the transaction; conspiracy is established by the meeting of minds to accomplish the crime; and market manipulation is sufficiently established by awareness of the possibility as to the purpose of inducing trading and the possibility of an artificial change in market price, and an actual change in market price is not required.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "In order for information to become information subject to the regulation of insider trading, that information must not only be material information but also undisclosed information that is not yet known to the general public; and"}, "factors": ["The materiality of that information and the likelihood that the fact will occur", "Without formally reporting it to the person with decision-making authority of the corporation or receiving instructions concerning it", "The content of the solicitation and the amount and form of the property or pecuniary benefit obtained in connection therewith", "The meeting of minds to accomplish that crime", "The economic rationality and fairness of the transaction, whether it was a sham or fictitious sale, and the degree of market participation"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2003Do7112 decided March 26, 2004 (Supreme Court Report 2004Sang, 747)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "If the employee who received the inside information and received money for the improper solicitation was himself the ultimate decision-maker for transactions of the corporation, is complete disclosure of information to the corporation recognized?", "batch": "b21", "translatedFrom": "ko"}
{"caseNo": "2002Du12946", "issue": "Even after decision-making has concluded, may meeting materials and minutes remain undisclosed, and by what criteria do the personal details of speakers in the minutes of the School Environment Hygiene Improvement Committee become subject to non-disclosure?", "answer": "Meeting materials and minutes of meetings for which decision-making has concluded may also be included among matters subject to non-disclosure, on the footing of matters in the decision-making process. It is determined by a high likelihood that disclosure would cause a significant impediment to the fair performance of duties and by comparing the interests in disclosure and non-disclosure, and the personal details of the speaker in this case are subject to non-disclosure.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "This must be carefully determined according to the specific case."}, "factors": ["A high likelihood that the fair performance of duties will be objectively and significantly impeded", "The interests, such as fairness in the performance of duties, protected by non-disclosure", "Guarantee of the people's right to know", "The people's participation in state affairs and securing transparency in the operation of state affairs"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2000Du6114 decided March 14, 2003 (Supreme Court Report 2003Sang, 1003)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must the content of the remarks in the minutes, excluding the speaker's personal details, be disclosed?", "batch": "b22", "translatedFrom": "ko"}
{"caseNo": "2001Du8827", "issue": "May a public institution refuse disclosure of information on the basis of general grounds alone, or add grounds for non-disclosure that differ in basic facts in an action for revocation?", "answer": "Because a public institution must assert and prove which specific ground for non-disclosure the information falls under, it cannot refuse disclosure on the basis of general grounds alone. The addition or change of grounds for a disposition is permitted only within the scope where the basic facts are identical, and the ground for non-disclosure added in this case lacks that identity.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "The disposition authority may add or change other grounds only within the limits where they are recognized as identical in basic facts to the grounds relied upon as the basis of the original disposition, and"}, "factors": ["Which part conflicts with which legal interest or fundamental rights", "Concrete facts prior to the legal evaluation of the grounds for the disposition", "Whether the underlying social facts are identical in essential respects", "The right of defense of the recipient of the administrative disposition", "The trust of the recipient of the administrative disposition"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2000Du8684 decided September 28, 2001 (Supreme Court Report 2001Ha, 2371)"}, "burden": {"value": "The party asserting it", "quote": "This must be proved, and it is not permitted to refuse disclosure by citing only general grounds without reaching that point."}, "openQuestion": "To what extent must a public institution specifically present the content of the information in order to prove a ground for non-disclosure?", "batch": "b22", "translatedFrom": "ko"}
{"caseNo": "99Du5207", "issue": "Is the standard amount of the administrative fine under the Enforcement Decree of the Youth Protection Act a fixed amount or a maximum limit, and by what criteria is a departure from or abuse of discretion in a sanction determined?", "answer": "Although the criteria for disposition of administrative fine are delegated legislation, the amount thereof is not a fixed amount but a maximum limit, so an appropriate amount must be determined by comprehensively considering various circumstances. Whether there is a departure from or abuse of discretion is determined by examining all circumstances, such as the violation and the public interest purpose, and comparing the degree of infringement of the public interest with the disadvantage suffered by the individual.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "totality of circumstances", "quote": "An appropriate amount of the administrative fine must be determined according to the case by comprehensively considering various factors, and accordingly the amount thereof is not a fixed amount but a maximum limit."}, "factors": ["The degree of social condemnation", "Other circumstances of having been punished under other statutes by reason of the violation", "The actor's personal circumstances and the scale of the unlawful gains obtained through the violation", "The content of the violation constituting the grounds for the disposition", "The degree of infringement of the public interest and the disadvantage that the individual will suffer by reason of the disposition"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 98Du11779 decided April 7, 2000 (Supreme Court Report 2000Sang, 1204)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what weight should each consideration be given in reducing the administrative fine from the maximum limit?", "batch": "b22", "translatedFrom": "ko"}
{"caseNo": "99Do4305", "issue": "What criteria apply respectively to the establishment of joint perpetration, of injury and of justifiable act, to extortion under the pretext of exercising a claim, and to the calculation of the amount of gains from an interest in a limited partnership company and to a finding of guilty?", "answer": "Joint perpetration requires mutual recognition and use at the same place and opportunity, such as in an accomplice relationship; injury requires impairment of bodily integrity or physiological functional disturbance; a justifiable act requires five elements including the legitimacy of purpose; and even where a claim exists, obtaining pecuniary benefit by means of threatening beyond the level tolerated by social norms constitutes the crime of extortion. The amount of gains is the aggregate value of the object of unlawful acquisition, and for an interest in a limited partnership company, absent special circumstances, the agreed transfer price serves as the basis; and a finding of guilty requires proof that excludes reasonable doubt.", "disposition": {"value": "partial reversal and remand", "quote": "The guilty portion of the judgment of the court below as to Defendant 1 is reversed, and that part of the case is remanded to the Gwangju High Court."}, "standard": {"value": "states requirements", "quote": "In order to recognize a justifiable act, the following requirements must be met: first, the legitimacy of the motive or purpose of that act; second, the propriety of the means or method of the act; third, the balance of legal interests between the interest protected and the interest infringed; fourth, urgency; and fifth, subsidiarity, namely that there is no other means or method besides that act."}, "factors": ["Where several persons, at the same place and at the same opportunity, recognized each other's offense and used it to commit the offense", "The legitimacy of the motive or purpose of that act", "Threatening beyond the level tolerated by social norms", "Special circumstances such that it cannot be regarded as reflecting the objective pecuniary value", "The conviction that the facts alleged in the indictment are true to the degree that leaves no room for reasonable doubt"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 98Do1869 decided February 23, 1999 (Supreme Court Report 1999Sang, 599)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What, specifically, are the special circumstances such that the agreed transfer price cannot be regarded as reflecting the objective pecuniary value of the interest in the limited partnership company?", "batch": "b22", "translatedFrom": "ko"}
{"caseNo": "99Do2282", "issue": "By what criteria is it determined whether the accumulation of shares constitutes a market manipulation with the purpose of inducing trading transactions?", "answer": "The purpose of inducing trading transactions is the purpose of causing investors to mistake an artificially manipulated market price for a naturally formed market price and thereby to be drawn into trading. Whether a transaction constitutes market manipulation is determined by comprehensively considering the nature of the securities, the total number of securities issued, the motives and types of trading transactions, price trends, and trading circumstances, and the accumulation of shares in this case falls within this.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "totality of circumstances", "quote": "This must be determined by comprehensively considering the nature of such securities, the total number of securities issued, the motives and types of trading transactions, the price trend of such securities, and the previous and then-current trading circumstances, etc."}, "factors": ["The nature of such securities", "The total number of securities issued", "The motives and types of trading transactions", "The price trend of such securities", "The previous and then-current trading circumstances"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "By what criteria is an accumulation of shares where a normal investment purpose and the purpose of inducing trading transactions coexist distinguished?", "batch": "b22", "translatedFrom": "ko"}
{"caseNo": "99Geu90", "issue": "When granting a claim for payment of money joined with an avoidance action, may provisional execution be permitted with respect to the part ordering payment of money?", "answer": "Provisional execution may be permitted with respect to the part ordering payment of money. This follows from the purpose of the provisional execution system, which guarantees the prompt enforcement of rights, and from the fact that the right of avoidance may be exercised not only by an action but also by a claim or defense raised outside an action.", "disposition": {"value": "reversal and remand", "quote": "The order of the court below is reversed, and the case is remanded to the collegiate panel of the Seoul District Court main court."}, "standard": {"value": "states requirements", "quote": "Where a claim for payment of money is joined with an avoidance action, it is reasonable to interpret that, when granting such claim, provisional execution may be permitted with respect to the part ordering payment of money."}, "factors": ["A system designed to guarantee the people's property rights and the right to a speedy trial by suppressing abuse of the right to appeal and permitting prompt enforcement of rights", "The fact that the right of avoidance may be exercised not only by means of filing an action but also by a claim of avoidance, a defense, etc."], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "May provisional execution be permitted also where a claim for return of property other than money is joined with an avoidance action?", "batch": "b23", "translatedFrom": "ko"}
{"caseNo": "99Geu35", "issue": "What is the proper treatment where a reorganization plan exceeds the scope within which repayment terms may be differentiated according to the nature of claims and the order of rights, and its limits?", "answer": "A reorganization plan may make reasonable distinctions based on the order of rights and the nature of claims, but it may not discriminate among rights of the same nature without reasonable grounds. In this case, preserving in part the rights of general shareholders, paying in full the trade reorganization claim constituting the principal claim, while exempting in full the trade reorganization claim constituting a claim against a guarantor, violates the principles of fairness, equity, and equality; accordingly, rather than revoking the approval order, it is preferable to modify the unlawful portion and grant approval.", "disposition": {"value": "partial reversal and remand", "quote": "The portion of the order of the court below concerning the special appellant Daeju Junggong Co., Ltd. is reversed, and the case in that part is remanded to the Seoul High Court."}, "standard": {"value": "Application to the facts", "quote": "A reorganization plan exempting in full, together with the financial institution reorganization claim that constitutes a claim against a guarantor, the trade reorganization claim that constitutes a claim against a guarantor"}, "factors": ["Reasonable grounds such as a difference in the nature of reorganization claims or reorganization security rights", "The fact that there is separately a principal debtor who bears the liability for repayment, and that the surety does not necessarily obtain consideration corresponding to the guarantee", "Reducing to one-tenth the rights of general shareholders, which are junior in priority, and", "Providing that the trade reorganization claim constituting the principal claim shall be paid in full by the second year, while", "A reorganization plan exempting in full, together with the financial institution reorganization claim that constitutes a claim against a guarantor, the trade reorganization claim that constitutes a claim against a guarantor"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 98Geu11 decided August 28, 1998 (Supreme Court Gazette 1998Ha, 2493)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "On remand, to what extent must the repayment terms of the trade reorganization claim constituting a claim against a guarantor be modified in order to satisfy the principle of equality?", "batch": "b23", "translatedFrom": "ko"}
{"caseNo": "98Do3282", "issue": "What is the effect of the delegation and public notice concerning the maturity of bills subject to short-term financing business, and how are the establishment of the offense of fraud and the amount of gain determined in the course of discounting bills or checks and repaying preexisting debts?", "answer": "Delegating to the Minister of Finance the fixing of the maturity of bills within a range not exceeding one year is not unconstitutional; however, unless the maturity is fixed and publicly announced or publicly noticed to the general public, an unlicensed short-term financing business cannot be criminally punished. If a person foresees that payment will not be settled on the due date, or conceals the absence of confidence in payment, and thereby obtains a discount, the offense of fraud is established, and absent a special agreement for a loan for consumption, the amount of gain is the amount of cash actually received; absent a special agreement for extinction, a preexisting debt is not extinguished merely by the delivery of a bill or check; and a postponement of the performance of an obligation may constitute a pecuniary benefit of the offense of fraud, but since the amount of that benefit cannot be calculated, it cannot be added to the amount of gain for aggravated punishment.", "disposition": {"value": "partial reversal and remand", "quote": "The portions of the judgment of the court below concerning Defendant 1 and Defendant 2 are reversed, and those portions are remanded to the Daegu High Court."}, "standard": {"value": "states requirements", "quote": "If a person foresees that a check or bill will not be settled on its due date, or lacks confidence that it can be paid on the due date, and yet conceals this from the payee and, deceiving the payee in that regard, obtains a discount, the offense of fraud is established."}, "factors": ["So long as it has not been publicly announced or publicly noticed to the general public", "While foreseeing that it would not be settled on the due date, or lacking confidence that it could be paid on the due date, and yet", "Where the parties actually exchanged only the cash amount from which advance interest and expenses were deducted, but agreed, by way of a special agreement for a loan for consumption, to treat the sum of the advance interest and expenses as the principal of the loan and to fix the rate of interest", "Unless the parties made a special agreement to extinguish the preexisting debt", "Since the amount of pecuniary benefit obtained from the postponement of the performance of the obligation cannot be calculated,"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 97Do1095 decided July 25, 1997 (Supreme Court Gazette 1997Ha, 2758)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where there is a special agreement for a loan for consumption that includes advance interest and expenses in the principal of the loan, how is the amount of gain for the offense of fraud specifically calculated?", "batch": "b23", "translatedFrom": "ko"}
{"caseNo": "98Do3097", "issue": "Does the amendment to the Securities and Exchange Act that excluded from punishment insider trading by a corporation that is merely registered fall under a case where the punishment was abolished by a change in statutes and regulations after the commission of the crime?", "answer": "It does. Because the scope of punishment was narrowed out of a reflection that the former measure, which regulated even insider trading by a corporation that is merely registered, was unjust, this is a case where the punishment was abolished by a change in statutes and regulations after the commission of the crime.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "Application to the facts", "quote": "This must be regarded as a reflective measure proceeding from the view that the former measure, which made even such cases subject to insider trading regulation, was unjust; accordingly, this falls under a case where the punishment was abolished by a change in statutes and regulations after the commission of the crime."}, "factors": ["A company that has not yet completed registration with the Korea Securities Dealers Association and thus has not reached the status of an over-the-counter registered corporation or an association-registered corporation", "There is not much room for problems to arise in terms of securing the fairness of the issuance or trading of securities and their smooth circulation, or of protecting investors", "A reflective measure proceeding from the view that the former measure was unjust"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where an amendment to the law resulted from a reflective reason for narrowing the scope of punishment together with a change in market conditions, how is it determined whether the punishment has been abolished?", "batch": "b23", "translatedFrom": "ko"}
{"caseNo": "98Do3051", "issue": "What are the requirements for a third party who delivers the consideration for intercession to become a joint principal offender of the offense of acceptance of a bribe for mediation, and what are the requirements for the establishment of matched order transactions and for their exceptional permissibility?", "answer": "Mere delivery alone does not constitute the constituent elements of the offense of acceptance of a bribe for mediation; however, one who delivers the consideration with the intent of a joint scheme with the party to the act of intercession becomes a joint principal offender. A matched order transaction requires a purpose of causing others to make erroneous judgments, such as by falsely making it appear that the transaction is brisk, while trading the same securities at the same time and at the same price pursuant to a prior agreement; and market manipulation for the purpose of fixing or stabilizing the market price is exceptionally permitted under strict conditions as to period, price, and subject, together with the submission of statements and reports and the disclosure procedures of the relevant authorities.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Where such third party, with the intent of a joint scheme with the party to the act of intercession, delivers money, goods, or other benefits in an intermediary capacity, such delivery constitutes participation in the act of execution of the above offense of acceptance of a bribe for mediation, and the third party cannot escape criminal liability as a joint principal offender."}, "factors": ["With the intent of a joint scheme with the party to the act of intercession", "an act of purchasing or selling the same securities at the same time and at the same price after the two parties have colluded in advance", "A purpose of falsely making it appear that the transaction is brisk or otherwise causing others to make erroneous judgments", "A purpose of fixing or stabilizing the market price of securities", "The securities firm shall submit a statement and report on price stabilization operations or market making, and"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 97Do2609 decided December 26, 1997 (Supreme Court Gazette 1998Sang, 475)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the person who delivered the money or goods knew that it was consideration for intercession but the intent of a joint scheme is not recognized, is the offense of aiding established?", "batch": "b23", "translatedFrom": "ko"}
{"caseNo": "98Da23614", "issue": "Is the extinction of a debt by compulsory execution also subject to the exercise of the right of avoidance under Article 64, subparagraph 2 of the Bankruptcy Act?", "answer": "Acts concerning the extinction of a debt include those based on an act of execution; accordingly, not only acts of the bankrupt but also the extinction of a debt by compulsory execution may be avoided.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Since acts concerning the extinction of a debt include those based on an act of execution under Article 67 of the same Act,"}, "factors": ["Acts concerning the extinction of a debt", "Cases based on an act of execution under Article 67 of the same Act", "Cases based on compulsory execution"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "When the extinction of a debt by compulsory execution is avoided, by what standard is the knowledge of the creditor who received the benefit determined?", "batch": "b24", "translatedFrom": "ko"}
{"caseNo": "97Do2609", "issue": "By what standards are determined the number of offenses of repeated crimes, the applicability of intercession to a request, the bribery character of money received by a member of the National Assembly, mitigation for voluntary surrender, the specification of facts charged in an indictment for embezzlement, discount fraud on bills, and the punishment of a person without status as an accomplice to breach of trust?", "answer": "Absent unity and continuity of criminal intent, there are concurrent offenses; a request is also included in intercession; where the official duties of a public official and the receipt of money stand, on the whole, in a relationship of consideration, the bribery character is recognized irrespective of the specification of individual official acts or of designations such as political funds, and the decision not to grant mitigation for voluntary surrender in this case is also proper. Facts charged in an indictment for embezzlement, even where the amounts by victim are not specified, may be deemed specified if they are distinguishable from other facts and there is no impediment to the exercise of the right of defense; if a person foresees the non-payment of a bill or, lacking confidence in payment, conceals this and obtains a discount, the offense of fraud is established even on the basis of dolus eventualis (conditional intent); and the offense of violation of the Mutual Credit Association Act is established even against a person without the requisite status, but such person is punished by the statutory penalty for the general offense of breach of trust.", "disposition": {"value": "dismissal", "quote": "All the final appeals of the defendants and the final appeal of the prosecutor with respect to Defendant C are dismissed."}, "standard": {"value": "states requirements", "quote": "Where the official duties of a public official and the receipt of money stand, on the whole, in a relationship of consideration, the offense of accepting a bribe is established, and"}, "factors": ["Unity and continuity of criminal intent", "The official duties of a public official and the receipt of money standing, on the whole, in a relationship of consideration", "Where it appears that there is no impediment to the defendant's exercise of the right of defense", "The defendant's financial resources and circumstances before and after the crime, the content of the crime, and the course of performance of the transaction", "A person having no status relationship conspiring with a person having such status relationship"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 96Do3377 decided April 17, 1997 (Supreme Court Gazette 1997Sang, 1354)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where money in the name of political funds includes both consideration for official duties and pure support for political activities, how is the scope of the bribe determined?", "batch": "b24", "translatedFrom": "ko"}
{"caseNo": "97Da20755", "issue": "Does an act whereby a reorganization company guarantees the debt of an affiliated company or provides security without direct economic consideration constitute a gratuitous act subject to avoidance?", "answer": "Where a reorganization company guarantees or provides security for another person without any obligation and does not receive economic benefit as consideration therefor, the act constitutes a gratuitous act. The conclusion is not altered by the circumstance that the provision was a direct cause of the creditor's payment of funds, or that the principal debtor was an affiliated company or family company.", "disposition": {"value": "reversal and remand", "quote": "Reverses the judgment of the court below, and remands the case to the Gwangju High Court."}, "standard": {"value": "states requirements", "quote": "It is reasonable to interpret that, insofar as the reorganization company does not receive economic benefit as consideration therefor, it constitutes a gratuitous act, and"}, "factors": ["Any act whereby a company reduces its active assets or increases its passive assets, namely its liabilities, without receiving consideration", "Where the consideration contributed by the other party as a counter-performance is so extremely small that the act is in substance no different from a gratuitous act", "The provision of a guarantee or security by the reorganization company for another person without any obligation", "Insofar as the reorganization company does not receive economic benefit as consideration therefor", "That the principal debtor was a so-called affiliated company or family company"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "How minimal must the counter-performance for a guarantee or the provision of security be before it is deemed in substance no different from a gratuitous act?", "batch": "b24", "translatedFrom": "ko"}
{"caseNo": "96Do1167", "issue": "Even after the offense has been discovered or a wanted notice has been issued, does a voluntary surrender made before arrest fall within the mandatory exemption from punishment under Article 262 of the Public Official Election Act and the Prevention of Election Irregularities Act?", "answer": "The majority opinion held that, regardless of whether the offense had been discovered or a wanted notice had been issued, a voluntary surrender made before arrest is included in the voluntary surrender under the said provision. To restrict voluntary surrender to the period before discovery of the offense would expand the scope of punishment by restrictively analogizing grounds for exemption from punishment, and thus violates the principle prohibiting analogical interpretation.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Whether a voluntary surrender made before arrest, regardless of whether the offense has been discovered or a wanted notice has been issued, constitutes a voluntary surrender under Article 262 of the Public Official Election Act and the Prevention of Election Irregularities Act (affirmative)"}, "factors": ["In order to effectively punish the providers of money, goods, and the like", "Possible meanings of the text of the statutory provision", "The restrictive wording 'before discovery of the offense'", "Voluntarily appearing after the offense was discovered and a wanted notice was issued", "Expanding the scope of punishment beyond the written law through restrictive analogy of grounds for exemption from punishment"], "precedent": {"value": "follows existing precedent", "quote": "Since precedent has interpreted that the \"voluntary surrender\" under Article 52 of the Criminal Act or Article 16, subparagraph 1 of the National Security Act also includes voluntarily appearing after the offense has been discovered and a wanted notice has been issued,"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Can a person who voluntarily appeared before arrest but stated only part of the offense also receive mandatory exemption from punishment?", "batch": "b24", "translatedFrom": "ko"}
{"caseNo": "96Da50445", "issue": "Whether the company's awareness of harm is required for the avoidance of acts extinguishing obligations after a suspension of payments and the like, and whether the custodian's exercise of the right of avoidance against some creditors constitutes a violation of the principle of good faith or an abuse of rights?", "answer": "If the person who received the benefit knew, at the time of the act, that there had been a suspension of payments or the like, or that the act harmed reorganization claimants and others, the act may be avoided, and it is not necessary that the company knew that it would harm reorganization claimants and others. The company that made the payment (satisfied the obligation) and the custodian are separate entities, and the exercise of the right of avoidance is an exclusive authority of the custodian; accordingly, the custodian's exercise thereof does not constitute a violation of the principle of good faith or an abuse of rights.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "If the person who thereby received a benefit merely knew, at the time of the act, that there was a suspension of payments or the like, or that the act harmed reorganization claimants and others, the act may be avoided"}, "factors": ["After the company had a suspension of payments or filed for bankruptcy, commencement of composition, or commencement of reorganization proceedings", "An act concerning the extinguishment of an obligation", "The fact that there was a suspension of payments or the like, or that the act harmed reorganization claimants and others, at the time of the act", "The two (the company that paid and the custodian) are separate entities", "The exclusive authority of the custodian"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Who must prove that the person who received the benefit knew of the suspension of payments or of the fact that the act harmed reorganization claimants?", "batch": "b24", "translatedFrom": "ko"}
{"caseNo": "95Do825", "issue": "Where a maximum amount mortgage was additionally established to secure an extorted promissory note claim, may the value of that security be added to the amount of gain for purposes of aggravated punishment for specific economic crimes?", "answer": "The amount of gain means the actual amount of gain. Even where a maximum amount mortgage was established to reinforce the pre-existing promissory note claim, the actual amount of gain cannot exceed the amount of the promissory note claim, KRW 600 million.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "Application to the facts", "quote": "A case in which it was held that the maximum amount mortgage merely served to reinforce the pre-existing promissory note claim of KRW 600 million extorted by the defendant, and thus the defendant's actual amount of gain cannot exceed KRW 600 million."}, "factors": ["The aggregate amount of gain in cases where a simple single offense or a comprehensive single offense is established", "The actual amount of gain", "On the condition of withdrawing the compulsory auction", "Merely reinforcing the pre-existing promissory note claim of KRW 600 million"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the additionally established maximum amount mortgage provides an independent economic benefit beyond securing the pre-existing claim, how is the amount of gain calculated?", "batch": "b25", "translatedFrom": "ko"}
{"caseNo": "95Do467", "issue": "By what criteria are the scope of material information subject to insider trading regulation and its disclosure determined, and can such information be deemed disclosed merely on the basis of speculative newspaper reports on significantly improved estimated settlement results?", "answer": "Material information is not limited to statutory reporting matters and refers to information that has significant value for a reasonable investor's investment decision or that, if generally known, may have a serious impact on the price of securities. Significantly improved estimated settlement results also fall within this category, and unless the company has disclosed them in the prescribed manner, they cannot be deemed disclosed or to have lost their materiality merely on the basis of similar speculative newspaper reports.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Information that has significant value in a reasonable investor's decision whether to purchase or continue to hold the relevant securities or to dispose of them"}, "factors": ["A fact that may have a serious impact on the price of the relevant securities", "The fact that the estimated operating results of a listed company improved significantly compared to the previous year", "Disclosed as prescribed by the Ministry of Finance Order upon the decision of the relevant company", "The fact that content similar to the estimated settlement results was speculatively reported in a daily newspaper or the like"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 93Do695 decided April 26, 1994 (Gong 1994Sang, 1563)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the magnitude of the change in estimated settlement results is small or the likelihood of realization is uncertain, at what level is the materiality of the information recognized?", "batch": "b25", "translatedFrom": "ko"}
{"caseNo": "95Da30253", "issue": "If a decision to abolish the reorganization procedure becomes final and conclusive while an action for avoidance is pending, does the claim for return arising from the exercise of the right of avoidance survive or succeed to another person?", "answer": "If the reorganization procedure terminates before the property is restored to the company, not only the right of avoidance but also the claim for return of property or the claim for payment of value arising from its exercise is extinguished. If a decision to abolish the reorganization procedure becomes final and conclusive while an action for avoidance is pending, the custodian's qualification and the rights related to the lawsuit are extinguished at the same time, and no one may succeed to them.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Where a decision to abolish the reorganization procedure becomes final and conclusive while an action for avoidance or a claim based on the exercise of the right of avoidance is pending, the custodian's qualification is extinguished and, at the same time, the rights related to the lawsuit are absolutely extinguished, and no one may succeed to them."}, "factors": ["Rights that only the custodian may exercise on the premise that the reorganization procedure proceeds", "Where the reorganization procedure terminated before the property was restored to the company", "Where a decision to abolish the reorganization procedure becomes final and conclusive while an action for avoidance or a claim based on the exercise of the right of avoidance is pending"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 94Da13893 decided May 26, 1995 (Gong 1995Ha, 2248)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What effect does the termination of the reorganization procedure have on the ownership of property already recovered through the exercise of the right of avoidance before such termination?", "batch": "b25", "translatedFrom": "ko"}
{"caseNo": "95Nu11405", "issue": "Does a decision of limited unconstitutionality by the Constitutional Court bind the courts' interpretation of statutes so as to exclude the application of the delegated provision and the Enforcement Decree provision concerning taxation based on actual transaction value?", "answer": "The view expressed in a decision of limited unconstitutionality on statutory interpretation has no binding force on the courts' interpretive authority, and the courts determine whether the delegated provision, whose wording remains intact, and the Enforcement Decree thereunder are applied. The existing view that the relevant taxation provision does not violate the principle of taxation by statute and the principle prohibiting blanket delegation is maintained.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Such a decision of limited unconstitutionality cannot but be understood as statutory interpretation that determines the meaning and content of a statute or a statutory provision and the scope of its application."}, "factors": ["That the statute or statutory provision remains in existence without its wording being changed at all", "The fundamental principle of the separation of state powers prescribed in our Constitution and the spirit of the Constitution designating the Supreme Court as the highest court", "The scope or limits of the inherent delegation", "The legislative motive and history of the amendment adopting the standard price taxation principle", "The legislative purpose of prescribing cases in which taxation may be imposed based on the actual transaction value as an exception to the standard price taxation principle"], "precedent": {"value": "follows existing precedent", "quote": "The view held to date, interpreting the provision as a valid provision that does not violate the constitutional principle of taxation by statute and the principle prohibiting blanket delegation, need not be changed."}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "In the case of other taxation provisions from which the scope or limits of delegation cannot be sufficiently derived from the statute, how is a violation of the principle prohibiting blanket delegation determined?", "batch": "b25", "translatedFrom": "ko"}
{"caseNo": "94Mo51", "issue": "Where the person from whom an item was seized has waived ownership or the claim for return, or where prosecution has been suspended because it is unclear whether customs duties were evaded, may the investigative authority decline to return the seized item and instead have it vested in the National Treasury, or continue the seizure?", "answer": "The majority opinion held that a waiver of ownership or of the claim for return does not extinguish the investigative authority's mandatory duty of return, or the corresponding claim for return. A seized item with respect to which prosecution has been suspended because the circumstances of the customs evasion are unclear cannot be definitively described as goods smuggled through customs evasion, so vesting in the National Treasury is not permitted, nor is there any need to continue the seizure.", "disposition": {"value": "reversal and remand", "quote": "The order of the court below is reversed, and the case is remanded to the collegiate panel of the Seoul District Court main court."}, "standard": {"value": "states requirements", "quote": "When there is no longer any need to continue the seizure of a seized item, the investigative authority must return that seized item, except in cases where return is impossible and the item is vested in the National Treasury"}, "factors": ["merely lifting the seizure and restoring the state of affairs prior to the seizure", "being effected toward the possessor at the time of the seizure, irrespective of substantive-law rights", "the constitutional spirit of guaranteeing human rights and property rights through due process", "Article 133 of the Criminal Procedure Act, which provides that the return of seized items is mandatory and obligatory", "cases where a suspension of prosecution has been ordered because it cannot be known when, and by whom, the goods were smuggled in evasion of customs duties"], "precedent": {"value": "change of precedent", "quote": "Supreme Court Decision 67Mo70 decided February 27, 1968 (abrogated)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "After the seized item has been returned, by what criteria are the effect of the waiver of ownership and the question whether the State has acquired ownership determined in a civil action?", "batch": "b25", "translatedFrom": "ko"}
{"caseNo": "94Do2792", "issue": "What constitutes information that may have a material effect on investment judgment, and do the undisclosed fire loss of a subsidiary and the year-end deficit information fall within that category?", "answer": "Information that a reasonable investor, upon comparatively assessing the materiality of the information and the probability of the occurrence of the fact, would regard as having significant value in making a decision regarding securities transactions. The undisclosed fire loss and settlement deficit information in this Case fall within that category, and insider trading conducted before disclosure by use thereof is subject to regulation.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Information that a reasonable investor, when making a judgment through a comparative assessment of the materiality of that information and the probability that the fact will occur, would regard as possessing significant value in deciding on securities transactions"}, "factors": ["The materiality of that information and the likelihood that the fact will occur", "A company with capital of approximately KRW 10.1 billion", "The fact that a fire occurred, causing a loss of approximately KRW 2 billion", "The fact that the year-end settlement results produced a deficit of approximately KRW 3.5 billion", "If such content had still not been disclosed"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 93Do695 decided April 26, 1994 (Gong 1994Sang, 1563)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the scale of the loss or deficit is smaller than in this Case, at what level is the significance of the information recognized?", "batch": "b26", "translatedFrom": "ko"}
{"caseNo": "93Do695", "issue": "What is the meaning of information that may have a material effect on investment judgment, and is insider trading using information that was not disclosed at all prohibited even before the Order of the Ministry of Finance governing disclosure methods was enacted?", "answer": "It is information that a reasonable investor, by comparatively evaluating the materiality of the information and the probability of the occurrence of the facts, considers to have important value in making a trading decision, and it need not necessarily be objectively clear and certain. Because the matters delegated by the Order of the Ministry of Finance are the method of disclosure and the point at which disclosure is deemed to have occurred, insider trading using information that has not been disclosed to the general public at all is unlawful even before the enactment of the Order of the Ministry of Finance.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "The information does not necessarily need to be objectively clear and certain."}, "factors": ["The materiality of that information and the likelihood that the fact will occur", "Important value in making a decision on the trading of securities", "The method of disclosing information to the general public and the point at which, by that method, the information is deemed to have been disclosed", "If the information has not been disclosed at all to the general public by any method"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "If information was partially disclosed to the general public before the enactment of the Order of the Ministry of Finance, by what standard is the unlawfulness of insider trading determined?", "batch": "b26", "translatedFrom": "ko"}
{"caseNo": "93Do2516", "issue": "How is conduct that causes one to misperceive that trading is brisk to be determined, and does a transaction affecting the listing reference price of a newly listed stock also constitute an act of fluctuating the market price?", "answer": "The determination is made by comprehensively considering the nature of the securities, the total number of issued shares, the transaction circumstances, the market circumstances, and the like, and on the basis of the order size and the course of the transaction in this Case, the transaction is difficult to regard as conduct causing one to misperceive that trading was brisk. Because, in the case of a newly listed stock, no stock price has been formed, a transaction does not constitute an act of fluctuating the market price merely on the ground that it affects the listing reference price.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "The determination must be made by comprehensively considering the nature of the securities in question, the total number of issued shares, the previous and then-existing transaction circumstances, the circumstances of the securities market, and the like."}, "factors": ["The nature of the securities in question", "The total number of issued shares", "The previous and then-current trading circumstances", "The circumstances of the securities market", "In the case of a stock listed for the first time, because no stock price has been formed,"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "From when may additional transactions, occurring after the stock price is formed through transactions on the first day of listing, constitute an act of fluctuating the market price?", "batch": "b26", "translatedFrom": "ko"}
{"caseNo": "93Do1341", "issue": "How is the amount of gain from obtaining by fraud under a sequential conspiracy calculated, and can a person other than the person in whose name a check is issued or the direct issuer become a joint principal offender of a crime involving fraudulent checks?", "answer": "The amount of gain is calculated not by the profit actually obtained by one accomplice, but by aggregating the value of the property or pecuniary benefit obtained by fraud from the victim by the final joint principal offender of the sequential conspiracy. Even if a person is not the person in whose name the check is issued or the direct issuer, that person may become a joint principal offender of the applicable crime under the Illegal Check Control Act by virtue of a conspiracy.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "It must be calculated by aggregating the value of the property or pecuniary benefit obtained by fraud from the victim by the final joint principal offender of the sequential conspiracy."}, "factors": ["Sequential conspiracy with other accomplices", "Where the person habitually circulated demand checks and bills of exchange, etc., failed to settle them, and thereby obtained a pecuniary benefit by fraud", "The value of the property or pecuniary benefit obtained by fraud from the victim by the final joint principal offender of the sequential conspiracy", "Even where the person is not the person in whose name the check is issued or the direct issuer, by virtue of a conspiracy"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 91Do1911 decided October 8, 1991 (Gong 1991, 2757)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "How is the scope of the gain from obtaining by fraud attributed to a person who participated in only some stages of a sequential conspiracy determined?", "batch": "b26", "translatedFrom": "ko"}
{"caseNo": "93Da30402", "issue": "In the short extinctive prescription period for a right to claim damages arising from unfair trade practices, what point in time does the time of learning of the fact that the violation occurred mean?", "answer": "It means the time when the victim actually recognized the fact that an unfair trade practice had occurred. That recognition is sufficient at a level where an ordinary person would recognize the existence of the unfair practice.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "The degree of that recognition is sufficient at a level where an ordinary person would recognize the existence of the unfair practice."}, "factors": ["Promoting stability of the securities market by swiftly bringing disputes arising from securities transactions to a close", "The time when the fact that an unfair trade practice had occurred was actually recognized", "A level at which an ordinary person would recognize the existence of the unfair practice"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Can the victim's actual recognition be acknowledged merely from having encountered press reports or the fact that an investigation was commenced?", "batch": "b26", "translatedFrom": "ko"}
{"caseNo": "92Do1983", "issue": "Can the amount of gain from fraud involving negotiable securities be calculated on the basis of the face value, and can the defendant be found guilty by recognizing a victim other than the victim stated in the indictment, without amending the indictment?", "answer": "In this Case, the face value of the negotiable securities was recognized as the amount of gain from the fraud. If the identity of the facts charged in the indictment is not impaired and no substantial disadvantage is imposed on the defendant's exercise of the right of defense, recognizing a different victim without amending the indictment does not violate the principle of ne procedat iudex ex officio (no trial without indictment).", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "Application to the facts", "quote": "A case in which, although the victim of the fraud in the facts charged in the indictment and the victim of the fraud in the criminal facts recognized are partly different, there is no difference as to the basic facts, and accordingly the principle of ne procedat iudex ex officio (no trial without indictment) is not violated."}, "factors": ["Treating the face value as the amount of gain from the fraudulent act concerning negotiable securities,", "Without impairing the identity of the facts charged in the indictment, and", "So long as no substantial disadvantage is imposed on the defendant's exercise of the right of defense,", "Since there is no difference as to the basic facts,"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 90Do94 decided March 13, 1990 (Supreme Court Decision Gazette 1990, 921)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where the face value of the negotiable securities differs from their actual economic value, must the amount of gain from the fraud always be calculated on the basis of the face value?", "batch": "b27", "translatedFrom": "ko"}
{"caseNo": "91Do1911", "issue": "In determining the amount of gain that serves as the criterion for aggravated punishment for joint offense of fraud, which is the aggregate of the gains of all accomplices, which law applies if the severity of punishment before and after the amendment of the Act does not differ where the amount of gain is 500 million won?", "answer": "The amount of gain that determines whether aggravated punishment applies is the total sum of the amounts of gain received by all accomplices. Where the amount of gain is 500 million won, there is no difference in the severity of punishment before and after the amendment, so the pre-amendment law in force at the time of the act applies.", "disposition": {"value": "dismissal", "quote": "The final appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "In determining the amount of gain that determines whether Article 3, paragraph (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes applies, the total sum of the amounts of gain received by all accomplices of the act shall be taken as the criterion."}, "factors": ["Where the offense of fraud was committed jointly", "The total sum of the amounts of gain received by all accomplices of the act", "Where the gain acquired from the act is 500 million won", "As there is no difference in the severity of punishment before and after the amendment,"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where some accomplices joined or withdrew midway through the joint act, how is the scope of the aggregate amount of gain attributed to that accomplice determined?", "batch": "b27", "translatedFrom": "ko"}
{"caseNo": "89Do641", "issue": "Where a builder who received part of the sale price created a maximum amount mortgage over the building site and obtained a loan, is the offense of breach of trust established, and how are the amount of damage and the effect, under the aggravated punishment provision, of an error in its calculation determined?", "answer": "If, in breach of the obligation to register the transfer of ownership, a maximum amount mortgage was created over the building site and a loan was obtained, the offense of breach of trust is established even if there was an intention to cancel it later or there was an industry practice to that effect, and the buyer's damage is the amount of the secured obligation. The offense of breach of trust is established even by the mere risk of damage arising, and even if there is an error in the calculation of the amount, if the case falls under the aggravated punishment provision as applied with the correct amount, it does not affect the outcome of the judgment.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "Application to the facts", "quote": "If, despite having the duty arising from his office to register the transfer of ownership in favor of the victims, he, in breach thereof, created a maximum amount mortgage over the said land and obtained a loan,"}, "factors": ["since he received the down payment and the intermediate payments from the victims,", "the duty arising from his office to register the transfer of ownership in favor of the victims,", "if he created a maximum amount mortgage over the said land and obtained a loan,", "where it gives rise to the risk of actual damage occurring,", "the amount of the secured obligation secured by the maximum amount mortgage,"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 82Do2215 decided November 23, 1982"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where the amount of the secured obligation under the maximum amount mortgage exceeds the collateral value of the real estate, is the buyer's damage calculated as the entire amount of the secured obligation?", "batch": "b27", "translatedFrom": "ko"}
{"caseNo": "89Do582", "issue": "What is the scope of the aggregation of the amounts obtained and multiple offenses, the recognition of habitual fraud without an amendment of the indictment, and the application of the special rule regarding relatives in the aggravated punishment of the offense of fraud?", "answer": "The amount obtained is aggregated within the scope of a simple single offense or a single comprehensive offense, and where separate acts of deception were committed against each victim, independent offenses of fraud are established even if the intent and the method were the same, so that the amounts obtained from offenses punishable as concurrent offenses cannot be aggregated. A case prosecuted as simple fraud cannot be punished, without an amendment of the indictment, as a violation of the special Act on habitual fraud, and the special rule regarding relatives applies also to the aggravated punishment under the special Act.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "it means the aggregate amount of the proceeds of a simple single offense or, where a single comprehensive offense is established, the proceeds thereof, and cannot be said to mean the sum of the amounts obtained from offenses that may be punished as concurrent offenses."}, "factors": ["the aggregate amount of the proceeds of a simple single offense or, where a single comprehensive offense is established, the proceeds thereof", "where an act of deception was separately committed against each of a plurality of victims and property was obtained by fraud from each of them", "since the legal interest infringed as to each victim is independent", "in the absence of an amendment of the indictment", "since there is no express provision excluding the application of Articles 354 and 328 of the Criminal Act concerning the special rule regarding relatives"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where fraud against a plurality of victims has been lawfully prosecuted as habitual fraud, up to what scope can the amounts obtained be aggregated?", "batch": "b27", "translatedFrom": "ko"}
{"caseNo": "86Do1012", "issue": "In habitual fraud spanning the periods before and after the enforcement of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, where the amount obtained after the enforcement alone satisfies the constituent elements for aggravated punishment, can the acts committed before the enforcement be comprehensively included and punished as a violation of the special Act?", "answer": "The majority opinion held that Article 4 (1) of the Supplementary Provisions of the Criminal Act cannot be applied in relation to other statutes, nor applied by analogy. Where the value obtained from offenses committed after the enforcement of the special Act satisfies the relevant constituent elements, the remaining acts must be comprehensively included and punished as a violation of the special Act, which carries a heavier statutory penalty.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Where the value of property obtained from offenses committed after the enforcement of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes satisfies the constituent elements of Article 3 (1) 3 of the said Act,"}, "factors": ["a transitional statute which, upon the enforcement of the Criminal Act, prescribed the scope of its application in relation to the former Criminal Act", "nor is it a general provision prescribed in Article 8 of the Criminal Act", "where the criminal act of fraud was repeatedly committed as a habit", "the value of property obtained from offenses committed after the enforcement of the Act", "the one among them carrying the heavier statutory penalty"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the amount obtained after the enforcement of the Act alone does not satisfy the constituent elements for aggravated punishment and satisfaction occurs only by combining the amounts obtained before and after the enforcement, which law is applied?", "batch": "b27", "translatedFrom": "ko"}
{"caseNo": "86DaKa1858", "issue": "May a guarantor on a promissory note securing a future obligation refuse payment of the amount of the instrument on the ground of a defect in presentment for payment or the non-existence of the underlying obligation?", "answer": "A guarantor of the maker of the bill may exercise the claim for payment of the instrument even without presentment for payment, and the guarantor cannot raise the personal defense of non-existence of the underlying obligation. However, if it has become certain that the future obligation does not exist, the payee's claim constitutes an abuse of rights absent special circumstances, and the guarantor may raise that defense even against a holder in bad faith falling under the requirements of the proviso to Article 17 of the Bills of Exchange and Promissory Notes Act.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Where a holder of the bill who received it by endorsement and transfer from the said payee falls under the requirements of the proviso to Article 17 of the Bills of Exchange and Promissory Notes Act, the guarantor on the bill may raise the defense of abuse of rights even against such a holder in bad faith."}, "factors": ["an act of completion by a person entitled under the bill (exercise of the right to supplement a blank bill)", "the same liability as that of the person guaranteed", "where it has become certain that the obligation under the causal relationship in which the bill was issued does not exist", "the requirements of the proviso to Article 17 of the Bills of Exchange and Promissory Notes Act", "where the other party knew or could have known the true intention of the representative director"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 80Da2695 decided April 14, 1981"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even after it has become certain that the underlying obligation does not exist, what are the special circumstances that justify the payee's claim for payment of the instrument?", "batch": "b28", "translatedFrom": "ko"}
{"caseNo": "86Nu484", "issue": "Can the Rules on the Handling of Property Tax Affairs, a directive of the Commissioner of the National Tax Service, serve as a statutory basis for imposing capital gains tax on the basis of the actual transaction value?", "answer": "Where a statute grants authority to determine specific matters of its content without specifying the procedure or method for the exercise of that authority, an administrative rule enacted pursuant to such delegation, within the limits of the delegation, combines with the statute and has externally binding force. Absent special circumstances such as the designation of transactions under the relevant Rules exceeding the limits of the delegation, the Rules serve as the basis for taxation based on the actual transaction value.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to Seoul High Court."}, "standard": {"value": "states requirements", "quote": "provided that it does not go beyond the limits of the delegation of the relevant statute, it acquires the effect of delegated legislation having externally binding force in combination with them."}, "factors": ["the authority to determine specific matters of the content of that statute", "in circumstances where the procedure or method for the exercise of that authority is not specified", "provided that it does not go beyond the limits of the delegation of the relevant statute", "types of transactions deemed necessary to curb real estate speculation"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "By what specific criteria is it determined whether the content of a designation of transactions exceeds the limits of the delegation of the statute?", "batch": "b28", "translatedFrom": "ko"}
{"caseNo": "2021Du59908", "issue": "Where the technology that is the subject of a patent right registered only abroad is used in Korea, do the royalties therefor constitute domestic-source income under the Korea-U.S. tax treaty?", "answer": "The meaning of \"use,\" which the treaty does not define, is interpreted, pursuant to the latter part of the proviso to subparagraph 8 of Article 93 of the former Corporate Tax Act, as use of the patented technology rather than of the patent right itself. Accordingly, where the patented technology of a patent right not registered in Korea was used in Korea, the royalties, being the consideration therefor, constitute domestic-source income.", "disposition": {"value": "reversal and remand", "quote": "Reverses the judgment of the court below, and remands the case to the Suwon High Court."}, "standard": {"value": "states requirements", "quote": "Accordingly, where the patented technology of a patent right not registered in Korea was used in Korea, the royalty income, being the consideration therefor, constitutes domestic-source income."}, "factors": ["The Korea-U.S. tax treaty does not separately define the meaning of \"use.\"", "the law of Korea, the Contracting State where the taxation is determined", "the wording of the provisions of the Korea-U.S. tax treaty or treaty-related agreements, negotiating records, and the circumstances at the time of its conclusion", "the \"use\" of technology, information, or the like constituting the content of intangible assets", "the territoriality principle of patent rights"], "precedent": {"value": "change of precedent", "quote": "Supreme Court Decision 91Nu6887 decided May 12, 1992 (Gong 1992, 1905) (overruled/changed)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where consideration for the use, in Korea and abroad, of a plurality of patented technologies has been paid in a lump sum, how is the royalty attributable to the use in Korea calculated?", "batch": "b28", "translatedFrom": "ko"}
{"caseNo": "2018Da248855", "issue": "What is the criterion for distinguishing a stipulation of a penalty for breach of contract as a contractual penalty, and can the provision for reduction of liquidated damages be applied by analogy to a contractual penalty?", "answer": "The determination is made by comprehensively interpreting the content of the contract, the circumstances of its conclusion, the purpose of the stipulation, and the like; however, where there are special circumstances such as double recovery being effected because of a separate damages provision, it is regarded as a contractual penalty. As to a contractual penalty, the existing precedent is maintained that Article 398 (2) of the Civil Act concerning liquidated damages cannot be applied by analogy to reduce the amount.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "An agreement on a contractual penalty is stipulated in order to secure performance of an obligation and differs in content from liquidated damages, so the amount thereof cannot be reduced by applying by analogy Article 398 (2) of the Civil Act concerning liquidated damages."}, "factors": ["the content of the written contract or other dispositive document and the circumstances of the conclusion of the contract", "the principal purpose for which the parties stipulated the penalty for breach of contract", "circumstances such as double recovery being effected", "the independent function of a contractual penalty and the principle of private autonomy", "the fact that fairness is sought by establishing the legal principle of controlling contractual penalties under the legal principle of total or partial invalidity of contract"], "precedent": {"value": "follows existing precedent", "quote": "The foregoing current precedent is appropriate, and under its legal principle the realities of the business community have become settled, and therefore it should be maintained as it is."}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must a contractual penalty be excessive in order to be subject to control under the legal principle of total or partial invalidity of contract?", "batch": "b28", "translatedFrom": "ko"}
{"caseNo": "2017Da35588", "issue": "Under what circumstances is a disadvantageous amendment of the rules of employment made without the collective consent of the employees valid?", "answer": "Validity cannot be recognized merely on the ground that it is reasonable in light of generally accepted notions in society; there must be special circumstances from which it can be found that the labor union or the employees abused their collective right to consent. Abuse of the right to consent must be strictly determined, and the court may determine it ex officio even without a party's allegation.", "disposition": {"value": "partial reversal and remand", "quote": "The portion of the judgment of the court below in which the defendant lost is reversed, and this part of the case is remanded to the Seoul High Court. All appeals by the plaintiffs (selected parties) are dismissed."}, "standard": {"value": "states requirements", "quote": "Therefore, where there are special circumstances from which it can be found that the labor union or the employees abused their collective right to consent, the disadvantageous amendment of the rules of employment may be deemed valid even without such consent."}, "factors": ["Changes in relevant statutes and regulations or in the social environment surrounding the employment relationship", "The need to amend the rules of employment is objectively and manifestly recognized, and", "The employer's sincere persuasion and efforts", "Circumstances such as opposition to the amendment of the rules of employment without presenting reasonable grounds or reasons", "The importance of the right to consent as a procedural right"], "precedent": {"value": "change of precedent", "quote": "Supreme Court Decision 78Da1046 decided September 12, 1978 (Gong 1979, 11477) (modified)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "If, in this case, the employer's persuasion and efforts and the employees' reasons for opposing are examined, can an abuse of the collective right to consent be recognized?", "batch": "b28", "translatedFrom": "ko"}
{"caseNo": "2017Da205073", "issue": "When a bankruptcy trustee who has taken over the creditor revocation action in the second instance (appellate) court exercises the right of avoidance, how are the jurisdiction and the scope of the liable property of the disposed property over which a security interest is set determined?", "answer": "The appellate court retains the authority to hear and decide the lawsuit. The liable property is calculated by deducting the amount of the secured claim of the mortgage; a joint mortgage is in principle apportioned in proportion to value, and from the disposed share of a co-owned commercial building the entire amount of the lease deposit return claim for which a right to preferential payment exists is deducted.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Busan District Court."}, "standard": {"value": "states requirements", "quote": "Where the amount of the secured claim exceeds the value of the property transferred, the transfer of the property does not become the subject of a creditor revocation action or of an exercise of the right of avoidance."}, "factors": ["procedural benefits that may be expected according to the degree of progress of the lawsuit", "the value of each real property that is the object of the joint mortgage", "the amount of the secured claim of the mortgage", "the entire amount of the lease deposit return claim for which a right to preferential payment exists"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2003Da39989 decided November 13, 2003 (Gong2003Ha, 2320)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specifically are the particular circumstances for which the amount of the secured claim of the joint mortgage should not be apportioned in proportion to the value of the real property?", "batch": "b29", "translatedFrom": "ko"}
{"caseNo": "2016Ma5394", "issue": "When determining the purchase price of shares of a shareholder who opposes the merger of a listed company, if the market stock price has been affected by the merger since before the merger disclosure, as of what point in time and on what materials should the fair price be calculated?", "answer": "Courts in principle refer to the market stock price, but determine the reference date and valuation method reasonably in light of the specific circumstances, and in ex officio investigation must secure a high degree of probability based on reliable materials. If the stock price has been affected since before the merger disclosure, the day before the date of the board of directors' resolution cannot be insisted upon, and in this case the determination based on the day before the listing date of the counterparty to the merger is justifiable.", "disposition": {"value": "dismissal", "quote": "All reappeals are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "In consideration of the institutional purpose of a petition case for determination of a purchase price, which is to determine a fair purchase price, and the specific circumstances of the individual case,"}, "factors": ["The market stock price of the relevant corporation (juristic person)", "Other valuation elements such as net asset value or earnings value", "The circumstances of the relevant corporation (juristic person) or the characteristics of the industry", "The point in time affected by the fact of the merger", "Reliable materials"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court DECISION 2008Ma264 decided October 13, 2011 (Supreme Court Gazette 2011ha, 2296)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the market's expectations regarding the merger were formed gradually and the point in time when the effect began is difficult to identify, how should the reference date be determined?", "batch": "b29", "translatedFrom": "ko"}
{"caseNo": "2016Do11318", "issue": "How should the unity and continuity of the intent requisite for evaluating repeated property offenses against the same victim as a single comprehensive offense be determined?", "answer": "Where the same type of offense has been repeatedly committed against the same victim with a single and continuous intent, it may constitute a single comprehensive offense. A careful and reasonable determination must be made by closely examining the method and motive of the offenses, the time intervals, the continuation of the use of the same opportunity or relationship, and the circumstances of the interruption or renewal of the intent.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "A reasonable determination must be made based on logic and experience by closely examining whether there are circumstances from which an interruption or renewal of the intent may be found."}, "factors": ["The method and manner of the individual offenses", "The motive of the offenses", "The time interval between each offense", "Whether the subsequent offense occurred while the situation of using the same opportunity or relationship continued", "Whether there are circumstances from which an interruption or renewal of the intent may be found"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where the same transactional relationship is maintained, what degree of time interval or change in the method of the offense would permit a finding of an interruption or renewal of the intent?", "batch": "b29", "translatedFrom": "ko"}
{"caseNo": "2016Da239024", "issue": "Where a worker of an outsourcing contractor is in a dispatched worker relationship with a user company, under what conditions may the worker claim damages for direct employment, wage discrimination, and non-performance of the direct employment obligation?", "answer": "A dispatch relationship is determined according to the substance of the employment relationship, and when the statutory direct employment obligation arises, the employee may claim a judgment in lieu of the employer's declaration of intent to hire and damages in the amount equivalent to wages for non-performance of that obligation, and wage discrimination without reasonable grounds in which the user company was also involved constitutes a tort (unlawful act). Resignation from or dismissal by the dispatching business operator does not, in principle, affect the direct employment obligation, but in the exceptional case where the worker would not have provided labor even if directly employed, damages for non-performance of the obligation cannot be claimed.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Even though the user company has performed its direct employment obligation, in an exceptional case where it can be evaluated that the dispatched worker would not have provided labor, it cannot be regarded that damage was caused to the dispatched worker by reason of the user company's breach of obligation; therefore"}, "factors": ["Whether it can be regarded that the worker was substantially incorporated into the business of a third party", "Whether the original employer possesses an independent business organization or facilities necessary for achieving the object of the contract", "Whether the user company was involved in or exercised influence over the determination of the dispatched worker's wages, or the like", "The content and degree of the disadvantageous treatment", "An exceptional case where, even though the user company has performed its direct employment obligation, it can be evaluated that the dispatched worker would not have provided labor"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2013Da14965 decided November 26, 2015 (Gong 2016Sang, 4)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Who must prove the exceptional circumstance that, even had the direct employment obligation been performed, the worker would not have provided labor?", "batch": "b29", "translatedFrom": "ko"}
{"caseNo": "2015Da5170", "issue": "By what standards is plagiarism in a degree dissertation or other research misconduct determined, and under what circumstances is a dismissal on that ground justified?", "answer": "Whether conduct constitutes plagiarism is determined, in principle, by examining the appropriateness of source attribution and whether another person's writings were used as one's own, in accordance with the research ethics prevailing at the time the work was written, and where the matter has become subject to judicial review, the final authority to determine rests with the court. A dismissal on this ground is justified only where, taking into account the degree of the research misconduct and the circumstances before and after employment, there is a cause attributable to the employee of such a degree that, as generally accepted in society, the employment relationship cannot be continued.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "An act of unjustly using another person's work or original idea, which is not common knowledge in the relevant field, as one's own without appropriate source attribution constitutes research misconduct and falls within typical plagiarism."}, "factors": ["The nature of the writing or the academic field", "The research ethics prevailing at the time the work was written", "The degree of research misconduct measured against the degree dissertation as a whole", "The content and duration of the work performed by the employee from employment until dismissal", "Whether the defects in the degree dissertation impede the normal provision of work"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2009Du16763 decided July 5, 2012 (Supreme Court Gazette 2012Ha, 1429)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Under what conditions is the correction of minor typographical errors, made after the conferral of the degree and not affecting the content of the dissertation or its verification, permitted?", "batch": "b54", "translatedFrom": "ko"}
{"caseNo": "2015Da33656", "issue": "Where the bankruptcy trustee succeeded to a creditor revocation action and exercised the right of avoidance by amendment of claims within the scope of that succession, as of what time is compliance with the exclusion period determined?", "answer": "Where the bankruptcy trustee succeeded to a creditor revocation action properly filed before the declaration of bankruptcy, the procedural effects of that lawsuit are succeeded by the bankruptcy trustee. In the absence of special circumstances, compliance with the exclusion period is determined based on the time when the creditor revocation action prior to the interruption was first made pending before the court.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Where the bankruptcy trustee succeeded to a creditor revocation action and thereafter exercised the right of avoidance by way of amendment of claims to the extent of that succession, in the absence of special circumstances, whether the exclusion period has been observed must be determined based on the time when the creditor revocation action prior to the interruption was first made pending before the court."}, "factors": ["in that the outcome of the lawsuit may directly affect the increase or decrease of the bankruptcy estate, and", "individual exercise of rights is prohibited unless through bankruptcy proceedings,", "because it has the same purpose as the creditor's right of revocation.", "the procedural effects of a creditor revocation action filed by a bankruptcy claimant are succeeded by the bankruptcy trustee as they stand, and accordingly"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What kinds of special circumstances would prevent the time when the action was first made pending from being taken as the standard for compliance with the exclusion period?", "batch": "b30", "translatedFrom": "ko"}
{"caseNo": "2014Do8719", "issue": "Where import and export goods are opened and inspected and possession of their contents is obtained by a measure taken by the Commissioner of Customs at the request of a prosecutor, must a warrant be obtained?", "answer": "Unlike an inspection for proper customs clearance, such an act constitutes a seizure or search for criminal investigation purposes, and therefore a warrant must be obtained either in advance or afterwards. Unless it falls within an exception provided by law, the due process principle and the warrant requirement apply.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "An act of opening and inspecting specific import and export goods and obtaining possession of their contents, as part of a measure taken pursuant to Article 4 (1) of the Act on Special Cases concerning the Prevention of Illegal Trafficking in Narcotics, etc., differs from the case of conducting an investigation for the purpose of proper customs clearance, etc. of import and export goods as discussed above, in that it constitutes a seizure or search for criminal investigation purposes, for which a warrant must be obtained either in advance or afterwards."}, "factors": ["Unless it falls within an exception permitted by law", "being an investigation conducted for the purpose of proper customs clearance, etc. of import and export goods,", "provided that the investigative authority has not compulsorily obtained possession,", "an act of opening and inspecting specific import and export goods and obtaining possession of their contents"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2013Do7718 decided September 26, 2013 (Sup. Ct. Bull. 2013Ha, 2048)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where purposes of customs inspection and purposes of criminal investigation coexist, by what criteria is it determined whether a compulsory measure requiring a warrant is involved?", "batch": "b30", "translatedFrom": "ko"}
{"caseNo": "2014Do6992", "issue": "In a name trust of the intermediate-registration-omission type that violates the Act on the Registration of Real Estate Under Actual Titleholder’s Name, where the nominal trustee disposes of the real estate at his or her discretion, is the crime of embezzlement established against the name trustor?", "answer": "The name trustor does not hold ownership of the trusted real estate, and no fiduciary relationship protected under the Criminal Act is recognized between the name trustor and the nominal trustee. Accordingly, the nominal trustee is not a person who holds in custody the property of the name trustor, and the crime of embezzlement against the name trustor is not established.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the main court of Daejeon District Court."}, "standard": {"value": "states requirements", "quote": "It is reasonable to limit the fiduciary relationship to one arising from trust that is worthy of protection against the crime of embezzlement."}, "factors": ["Ownership of the trusted real estate remains held by the seller.", "The name trustor holds only a claim against the seller for transfer of ownership registration and does not hold ownership of the trusted real estate, and", "the name trust agreement or the mandate agreement incidental thereto is void,", "being no more than an illegal relationship constituting a crime, contrary to the Act on the Registration of Real Estate Under Actual Titleholder’s Name,"], "precedent": {"value": "change of precedent", "quote": "Supreme Court Decision 2000Do3463 decided November 27, 2001 (Sup. Ct. Bull. 2002Sang, 220) (abrogated)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "In relation to the seller who holds ownership, can the nominal trustee's disposal at his or her discretion constitute the crime of embezzlement?", "batch": "b30", "translatedFrom": "ko"}
{"caseNo": "2014Do6910", "issue": "Where an investment adviser, etc. recommends a purchase without disclosing his or her own interest in the possibility of purchasing securities in advance and selling them after the recommendation, does this constitute the use of unfair means and the use of deception under the Financial Investment Services and Capital Markets Act?", "answer": "Such a recommendation constitutes an act of using unfair means, schemes, or artifices under the Financial Investment Services and Capital Markets Act. By omitting the disclosure of a significant personal interest, it creates the impression of a recommendation made on an objective basis and induces transactions, and therefore it also constitutes the use of deception.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "An act whereby an investment adviser, etc., without disclosing his or her own interest in securities to the effect that he or she has purchased in advance and holds the securities recommended and may sell them after the recommendation, recommends the purchase of those securities constitutes, on the one hand, an 'act of using unfair means, schemes, or artifices' as used in Article 178 (1) 1 of the Financial Investment Services and Capital Markets Act, and"}, "factors": ["impairment of market participants' trust in fair competition in the capital market", "reduced incentives to produce and consume high-quality information", "the motive for the recommendation, which may affect the objectivity of the content of the recommendation", "a matter with a considerable likelihood of being given significant consideration by a reasonable investor", "the misunderstanding that the securities are recommended on an objective basis without any personal interest"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "How specifically must the interest relating to the advance purchase and the possibility of sale be disclosed in order for it to be regarded that the investor's misunderstanding has been prevented?", "batch": "b30", "translatedFrom": "ko"}
{"caseNo": "2014Do12619", "issue": "In a breach of trust in the course of business through a joint and several guarantee, where the principal debtor has substantial repayment ability and the amount of the benefit cannot be specifically calculated, may the entire principal and interest of the loan be deemed the amount of the benefit for aggravated punishment?", "answer": "Even where a pecuniary benefit is obtained through a breach of trust in the course of business, if its value cannot be specifically calculated, Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes cannot be applied. In this case, it can be found that the principal debtor had substantial ability to repay the debt voluntarily from its own resources, and thus the judgment of the court below, which calculated the entire principal and interest of the loan as the amount of the benefit, involves a misapprehension of legal principles.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below, insofar as it concerns the guilty findings against Defendant 1 and Defendant 2 (including the respective portions finding no crime notwithstanding the stated reasons) and the portions concerning Defendant 4, is reversed, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "Application to the facts", "quote": "Because Company A can be found to have had the ability to repay the loan obligations voluntarily from its own resources to a substantial extent, and thus even though this is a case in which the amount of the pecuniary benefit obtained by the act of breach of trust cannot be calculated,"}, "factors": ["because the penalty is also greatly aggravated depending on the amount of the benefit,", "The principle of proportionality between crime and punishment, under which an appropriate balance must be achieved between crime and punishment", "the principle of culpability (principle that punishment must be based on and proportionate to fault)", "the fact that rises in real estate prices and rents were anticipated at the time the loan was made", "can be found to have had the ability to repay the loan obligations voluntarily from its own resources to a substantial extent,"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court en banc Judgment 2005Do7288 decided April 19, 2007 (Supreme Court Gazette 2007, 923)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "In a joint and several guarantee case where the principal debtor has some ability to repay, what are the methods and conditions by which the amount of the benefit obtained through the guarantee can be specifically calculated?", "batch": "b30", "translatedFrom": "ko"}
{"caseNo": "2013Do9933", "issue": "By what criteria is it determined whether an act of a financial investment business operator providing an investment opportunity or means of trading only to a specific investor constitutes unfair means, etc.?", "answer": "Unfair means, etc. refer to all means, schemes, or artifices recognized as unfair in light of generally accepted social norms. Whether an act of provision to a specific investor is unfair is determined comprehensively in light of the characteristics of the market and the transaction, the motive and method of provision, the risk of loss to general investors, and the impairment of trust in fairness, etc.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "It must be determined through comprehensive consideration."}, "factors": ["the characteristics of that financial transaction market and the types and sizes of transaction participants", "the structure and method of the transaction", "the motive and method by which investment opportunities, etc. came to be provided only to a specific investor", "whether there is a risk of causing loss to other general investors by infringing upon the investment opportunities, etc. of other general investors thereby", "whether it can be found that investors' trust in the fairness of financial product transactions has been significantly impaired by such conduct"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2011Do8109 decided October 27, 2011 (Sup. Ct. Bull. 2011Ha, 2504), Supreme Court Decision 2012Do3782 decided June 28, 2012"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must the trading advantage provided to a specific investor reach before trust in the fairness of transactions can be found to have been significantly impaired?", "batch": "b31", "translatedFrom": "ko"}
{"caseNo": "2013Do7101", "issue": "Where a recording file containing suspicions of other persons unrelated to the suspect stated in the warrant is seized without a separate warrant, can its admissibility of evidence be recognized?", "answer": "The recording file is unrelated to the case that was the object of the seizure under the warrant, and therefore constitutes illegally obtained evidence. The procedural violation is a serious violation that infringes the substantive content of the warrant requirement and due process, and thus admissibility of evidence cannot be recognized even exceptionally.", "disposition": {"value": "dismissal", "quote": "The final appeals of Defendant 1, Defendant 2, Defendant 3, Defendant 4, and Defendant 5, and the final appeal of the prosecutor, are all dismissed."}, "standard": {"value": "Application to the facts", "quote": "A case in which it was held that the procedural illegality constituted a serious violation infringing the substantive content of the warrant requirement or due process under the Constitution, so that admissibility of evidence could not exceptionally be recognized either."}, "factors": ["insofar as A is unrelated to the suspected facts suspected on the basis of the recording file", "the recording file seized without having obtained a separate search and seizure warrant", "a procedural violation of the warrant requirement", "a serious violation infringing the substantive content of the warrant requirement or due process under the Constitution"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the suspect stated in the warrant is partially related to the separate suspicion appearing in the recording file, to what scope is the seizure permitted?", "batch": "b31", "translatedFrom": "ko"}
{"caseNo": "2013Do2857", "issue": "Where a maximum amount mortgage is arbitrarily created over real estate held in custody under a name trust, how is the amount of embezzlement benefit that determines whether aggravated punishment applies calculated?", "answer": "The amount of the benefit is not the balance remaining after deducting the existing secured debt from the market price of the real estate, but the amount of the secured debt for which security was provided arbitrarily, or the maximum amount of the secured claim. In this case, the amount of the benefit is less than 500 million won, so Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes cannot be applied.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "Application to the facts", "quote": "In this case, since the defendant's amount of the benefit is less than 500 million won,"}, "factors": ["the value of the embezzled property must be calculated strictly and carefully", "the principle of balance between crime and punishment", "the principle of culpability (principle that punishment must be based on fault)", "a maximum amount mortgage with a maximum amount of the secured claim of 266,000,000 won was created arbitrarily without A's consent", "the amount of the secured debt for which the above respective real estate was provided as security, or the maximum amount of the secured claim"], "precedent": {"value": "follows existing precedent", "quote": "[1] Supreme Court Decision 2005Do7288 decided April 19, 2007, en banc judgment (Sup. Ct. Bull. 2007Sang, 923), Supreme Court Decision 2009Do2880 decided June 11, 2009, Supreme Court Decision 2012Do6394 decided August 30, 2012"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the actual secured debt amount and the maximum amount of the secured claim differ, which amount should be adopted as the amount of the benefit?", "batch": "b31", "translatedFrom": "ko"}
{"caseNo": "2013Do11233", "issue": "Under what requirements may admissibility of evidence be recognized where Evidence unlawfully seized as unrelated to the criminal facts stated in the warrant was returned and then submitted again?", "answer": "Evidence seized in a manner unrelated to the criminal facts of the warrant may in principle not be used as evidence of guilt. If, after return, it is voluntarily submitted and seized again, it may be assessed that the causation with the initial illegality has been severed; however, the prosecutor must prove the voluntariness of the submission to a degree that excludes reasonable doubt, and where the submission cannot be regarded as voluntary, there is no admissibility of evidence.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "As to whether the submission was voluntary, the prosecutor must prove it to a degree that excludes reasonable doubt, and where it cannot be regarded as having been voluntarily submitted, admissibility of evidence cannot be recognized."}, "factors": ["Evidence related to the alleged criminal facts that constituted the grounds for issuance of the warrant", "Returning separate Evidence to the person subject to seizure, among others, and later receiving a voluntary submission thereof and seizing it again", "Causation between the initial Procedure violation and the ultimate collection of Evidence", "The superior position of the investigating agency", "That the submission was voluntary"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "prosecutor", "quote": "As to whether the submission was voluntary, the prosecutor must prove it to a degree that excludes reasonable doubt"}, "openQuestion": "In the course of re-submission after return, what specific circumstances must be confirmed before the voluntariness of the submission can be recognized without reasonable doubt?", "batch": "b31", "translatedFrom": "ko"}
{"caseNo": "2013Da64908", "issue": "As to wages of an employee arising before the declaration of bankruptcy, is a claim for delayed damages arising from the bankruptcy trustee's failure to perform after the declaration of bankruptcy an estate claim?", "answer": "The majority opinion held that the bankruptcy trustee's nonperformance of obligations borne in connection with the trustee's duties is also included in an act made with respect to the bankruptcy estate. Accordingly, a claim for delayed damages arising from the delay, after the declaration of bankruptcy, in performing the obligation to pay wages and the like from time to time is an estate claim under Article 473, subparagraph 4 of the Debtor Rehabilitation and Bankruptcy Act.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Nonperformance of obligations borne by the bankruptcy trustee in connection with the trustee's duties is also included."}, "factors": ["The right to manage and dispose of the bankruptcy estate", "Conducting the bankruptcy proceedings fairly and smoothly by protecting interested parties", "Nonperformance of obligations borne by the bankruptcy trustee in connection with the trustee's duties", "Obligation to pay from time to time", "The employee's right to claim damages arising from the bankruptcy trustee's delay in performing such obligations after the declaration of bankruptcy"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Does a claim for delayed damages on wages and the like that already arose before the declaration of bankruptcy also fall within estate claims?", "batch": "b31", "translatedFrom": "ko"}
{"caseNo": "2013Da2757", "issue": "Can a securities company that issued equity-linked securities and, through hedging transactions, interfered with the fulfillment of an early redemption condition be regarded as having breached its duty to protect investors under the principle of good faith?", "answer": "A securities company must conduct hedging transactions that conflict in interest with the investor in a reasonable manner in light of timing, method, and the like, and must not interfere with the fulfillment of the condition by impairing fair price formation. In this Case, where the early redemption condition was defeated by a large-volume sale near the close of the market on the valuation date, there is sufficient room to regard it as interference with fulfillment of the condition contrary to good faith.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Where interests conflict with the investor according to the price or index of the underlying asset on the agreed valuation reference date, the related hedging transaction shall be conducted reasonably in light of timing, method, and the like, and"}, "factors": ["Where interests conflict with the investor", "Timing, method", "Affecting fair price formation of the underlying asset and interfering with fulfillment of the condition", "A large-volume sell order at a price falling short of the reference price near the close of the market on the intermediate valuation date"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent of sell volume and price impact in hedging transactions on the valuation date is still permitted as a reasonable transaction?", "batch": "b32", "translatedFrom": "ko"}
{"caseNo": "2013Da2740", "issue": "Can a person who traded in linked products with the issuer and thereby came into a conflict of interest with investors also be deemed a person liable for unfair trading, and how are the purpose of price-fixing and the resulting liability for damages to be determined?", "answer": "A person who, through trading in linked products, came to hold interests conflicting with those of investors is also included among those who may be held liable for unfair trading. The purpose of price-fixing is determined by comprehensively considering circumstantial facts concerning the motive and form of the transaction, and where loss is caused by unlawful price-fixing, that person bears liability for tort within the scope of adequate causation even in the case of securities as the underlying asset.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "It is determined by comprehensively considering circumstantial facts such as the motive and manner of the transaction."}, "factors": ["The nature of the securities, etc. and the total number of securities, etc. issued", "Trends in price and trading volume", "The circumstances of the transaction before and after", "The economic rationality and fairness of the transaction", "The degree of the market participation ratio, continuous closing-price management"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2002Do3131 decided October 28, 2004 (Gong 2004, 1980)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the economic rationality of a legitimate hedging transaction and circumstantial facts suggesting a purpose of price-fixing are both recognized, what weight should be given to each circumstance?", "batch": "b32", "translatedFrom": "ko"}
{"caseNo": "2013Da26708", "issue": "By what standards are a manufacturer's liability for damages, causation, the amount of damages, and extinctive prescription determined in connection with viral infection through blood products?", "answer": "The manufacturer owes a heightened duty of care to eliminate the risk of infection, breach of the duty of care and labeling defects, etc. are determined by taking the relevant circumstances into consideration on a totality of circumstances basis, and where the victim proves the absence of symptoms before administration, confirmation of infection after administration, and a substantial possibility of contamination, causation is presumed. The rate of loss of earning capacity is determined normatively, and in the assessment of emotional distress damages there are limits of equitable discretion; in infections with a long incubation period or where progression is difficult to predict, damages arising from the manifestation of symptoms or the progression of the disease may be realized at that point in time.", "disposition": {"value": "partial reversal and remand", "quote": "The claims in the respective portions are reversed, and the cases in these portions are remanded to the Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "A determination shall be made in accordance with socially accepted notions by comprehensively considering the various circumstances, such as the characteristics of the product, the form in which it is ordinarily used, the content of the user's expectations regarding the product, the content of the foreseeable risk, the user's awareness of the risk, and the possibility of risk avoidance by the user."}, "factors": ["The general level of medicine at the time of the act in question", "The degree of probability of the occurrence of the result arising from that act", "The gravity of the legal interest invaded", "The user's awareness of the risk and the possibility of risk avoidance by the user", "The temporal proximity between the use of the blood product and the infection, and the statistical association"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2008Da16776 decided September 29, 2011 (Gazette 2011Ha, 2197)"}, "burden": {"value": "the opposing party", "quote": "The burden of proof as to whether the blood product manufacturer has fulfilled measures such as ensuring, through interviews and the like, that blood is not provided by persons at high risk of infection with HCV or the like in the course of supplying the blood needed for blood products through its own blood centers and the like lies, in the absence of special circumstances, with the blood product manufacturer."}, "openQuestion": "Where causation with the infection is presumed for each of the blood products of several companies, how is the scope of each company's liability determined?", "batch": "b32", "translatedFrom": "ko"}
{"caseNo": "2013Da11621", "issue": "How are the damages under the Civil Act of an investor who acquired shares at a price formed through the dissemination of false facts, etc., and the normal share price underlying them, calculated?", "answer": "The loss is the difference between the actual acquisition amount and the normal share price that would have prevailed had the unlawful act not occurred; if the shares were sold at or above the normal share price, it is the difference between the actual acquisition amount and the selling price. The normal share price may be estimated by reasonable methods, such as the financial-economics approach employing appropriate public indicators and regression equations through expert appraisal.", "disposition": {"value": "dismissal", "quote": "All final appeals and incidental final appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "It may be deemed the amount equivalent to the difference between the normal share price and the share price formed due to the unlawful act and the amount actually paid by the investor to acquire the shares (where the investor sold the shares at or above the normal share price, the amount equivalent to the difference between the amount actually paid and the selling price)."}, "factors": ["The amount actually paid by the investor to acquire the shares", "Where the investor sold the shares at or above the normal share price", "Share price trends during the period affected by the unlawful act (the event period)", "Share price trends that would have proceeded had the unlawful act not occurred", "Public indicators such as the composite stock price index, industry index, and share prices of companies in the same line of business"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2003Da69607, 69614 decided May 28, 2004 (Gong 2004Ha, 1067)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where different public indicators and regression models yield considerably different normal share prices, which model should be adopted?", "batch": "b32", "translatedFrom": "ko"}
{"caseNo": "2012Do7455", "issue": "How are the scope of applying the National Security Act to meetings and contacts during approved visits to and exchanges with North Korea, and the lawfulness of packet interception, extension of communication restriction measures, and omission of prior notice in the execution of a warrant, determined?", "answer": "Individual meetings during an approved visit may also be punished if they go beyond the scope of legitimate exchange and there is a clear risk of substantive harm, but if the travel itself is legitimate so that it cannot be punished as the offense of escape, the return cannot be punished as the offense of infiltration either. Packet interception is, in principle, permitted where the statutory requirements are met; the taking effect of the provisional application clause does not affect the validity of the preceding extension measure; and if, by reason of prior notice, there is concern over concealment of evidence or the like such that the effectiveness of the execution of the warrant would be difficult to achieve, notice may be omitted.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "where the requirements set forth in Article 5, paragraph (1) of the same Act are met, it may be permitted unless there are other special circumstances, and"}, "factors": ["The circumstances by which the person came to travel to North Korea", "Whether the person traveling to North Korea actually conducted the trade and cooperation projects", "Conduct before and after the travel to North Korea", "A clear risk of causing substantive harm to the free and democratic basic order", "The concern that evidence may be concealed"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court en banc Judgment 2003Do758 decided April 17, 2008 (Supreme Court Gazette 2008 Sang, 718)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What screening and destruction procedures are required for communications collected through packet interception that are unrelated to the purpose of the investigation, or for communications of third parties?", "batch": "b32", "translatedFrom": "ko"}
{"caseNo": "2012Da87751", "issue": "Where, after the closure of rehabilitation proceedings, the matter proceeds to a declaration of bankruptcy ex officio, can a right of avoidance lawsuit be continued, and under an agreement reserving the right of termination, in what kind of contract is termination recognized?", "answer": "Where the matter proceeds to bankruptcy proceedings by a declaration of bankruptcy ex officio, the bankruptcy trustee may continue the right of avoidance lawsuit, and the lawsuit is not terminated. Termination under an agreement is recognized only for contracts that give rise to a continuous creditor-debtor relationship, where the requirements set forth in the agreement are satisfied.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Termination as described above is recognized only for contracts that give rise to a continuous creditor-debtor relationship."}, "factors": ["The time when the matter proceeds to bankruptcy proceedings by a declaration of bankruptcy ex officio", "Litigation proceedings based on the exercise of the right of avoidance that the administrator had been conducting in the preceding rehabilitation proceedings", "Where one or both parties have made an agreement reserving the right of termination", "The requirements set forth in the agreement", "A contract that gives rise to a continuous creditor-debtor relationship"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2011Da101544, 101551 decided April 24, 2014"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where, after the closure of rehabilitation proceedings, a declaration of bankruptcy is made upon a separate application rather than ex officio, can the right of avoidance lawsuit be continued?", "batch": "b33", "translatedFrom": "ko"}
{"caseNo": "2012Da211", "issue": "Is an act of transferring one's de facto sole property without consideration for the purpose of evading compulsory execution a fraudulent act, and if the transferee pays the collection money to the debtor, is it deducted from the scope of restitution?", "answer": "That gratuitous transfer constitutes a fraudulent act in relation to the other creditors holding bankruptcy claims. Even if the transferee has paid the money collected by exercising the assigned claim to the debtor, it is not deducted from the scope of restoration to the original state or restitution of value.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Where a debtor, for the purpose of evading compulsory execution, transfers his de facto sole property to a third party without consideration, such act constitutes a fraudulent act in relation to the other creditors holding bankruptcy claims, and"}, "factors": ["Purpose of evading compulsory execution", "His de facto sole property", "An act of transferring it to a third party without consideration", "Even if that third party collected the assigned claim and paid that money to the debtor"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "If the transferee does not pay the collection money to the debtor but returns it directly to the bankruptcy estate, is it deducted from the scope of restitution?", "batch": "b33", "translatedFrom": "ko"}
{"caseNo": "2012Da1146", "issue": "How is the unfairness of the KIKO currency option contract and whether it constitutes standard terms determined, and what are the bank's duty to inform and duty to protect the customer, and the limits of comparative negligence (offsetting plaintiff's fault)?", "answer": "A contract does not become unfair merely on account of an imbalance in gains and losses arising from subsequent exchange rate fluctuations, the contract structure itself is not standard terms, and there is in principle no duty to inform of the price components. The bank bears the suitability principle and the duty to explain, and violated these in the additional contract at issue in this Case, but comparative negligence (offsetting plaintiff's fault) is exceptionally not applied only where it would be contrary to fairness or the principle of good faith, such as by leaving the wrongdoer in possession of unlawful gains.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Where a bank, in breach of such duty, actively recommends a currency option contract that entails excessive risk in light of the enterprise's business circumstances and causes it to be concluded, such act of recommendation is unlawful in that it violates the so-called suitability principle and abandons the duty to protect the customer, and constitutes a tort (unlawful act)."}, "factors": ["Having made the expected gains of both parties equal by taking into account the probability distribution of exchange rate fluctuations", "The counterparty's opportunity to adjust its own gains", "The financial condition of the enterprise, including its expected foreign currency inflows, assets, and sales scale", "The characteristics and level of risk of the financial product, the customer's trading purpose, investment experience, and ability", "The result of allowing the wrongdoer to ultimately retain gains arising from the tort (unlawful act), contrary to the ideal of fairness or the principle of good faith"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2010Da55699 decided November 11, 2010 (Gong 2010Ha, 2257)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specific comparative criteria and level would support a finding that the commissions included in the product structure are markedly high in comparison with market practice?", "batch": "b33", "translatedFrom": "ko"}
{"caseNo": "2011Ma201", "issue": "When are the commencement requirements determined in an immediate appeal against a ruling on an application for commencement of individual rehabilitation, and what circumstances are required to dismiss a repeated application on the ground of lack of good faith?", "answer": "The court of immediate appeal determines the commencement requirements as of the time it renders its decision on the appeal. To dismiss on the ground that the applicant acted in bad faith, procedural fault equivalent to the statutory grounds for dismissal or an improper purpose of application must be found; accordingly, a mere history of repeated applications cannot support dismissal.", "disposition": {"value": "reversal and remand", "quote": "The order of the court below is reversed, and the case is remanded to the collegiate panel of Jeju District Court."}, "standard": {"value": "states requirements", "quote": "It must be found that the debtor committed a procedural fault equivalent to subparagraphs 1 through 5 of the same Article, or that the debtor filed the application for commencement of individual rehabilitation proceedings for an improper purpose, such as solely for the purpose of obtaining the effects arising from the progress of the individual rehabilitation proceedings."}, "factors": ["The nature of the court of immediate appeal as a court of second instance", "A procedural fault equivalent to subparagraphs 1 through 5 of the same Article", "An improper purpose, such as solely for the purpose of obtaining the effects arising from the progress of the individual rehabilitation proceedings", "The fact that refiling is not expressly prohibited", "The fact that there is also room to regard the foregoing application for commencement of individual rehabilitation proceedings as involving a change of circumstances"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2009Ma1137 rendered December 24, 2009 (Supreme Court Gazette 2010Sang, 120)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Upon further examination after remand, is an improper purpose or procedural fault found in this debtor's application?", "batch": "b33", "translatedFrom": "ko"}
{"caseNo": "2011Do769", "issue": "Whether the offense of fraud can be established as to unpaid interest on loan funds obtained by deception only upon a separate act of disposition, and whether fraud against victims who are spouses may be regarded as a single comprehensive offense?", "answer": "The offense of fraud as to unpaid interest requires a separate act of disposition arising from deception, and therefore a guilty finding cannot be made without such materials. Fraud against multiple victims is, in principle, established separately for each victim, and the fact alone that the victims are spouses cannot be grounds for recognizing the identity of the legally protected interest and treating the matter as a single comprehensive offense.", "disposition": {"value": "partial reversal and remand", "quote": "The portion of the judgment of the court below finding guilt is reversed, and this part of the case is remanded to Busan High Court."}, "standard": {"value": "states requirements", "quote": "Subjectively, the deceived person must recognize the intent to dispose, that is, the result of disposition, and objectively there must be an act governed by such intent."}, "factors": ["The deceived person's recognition of the intent to dispose, that is, the result of disposition", "An act governed by such intent", "A separate act of disposition concerning the interest portion", "Circumstances under which the legally protected interest of the victims may be regarded as identical, such as the victims constituting a single joint enterprise, etc.", "The fact that the above victims are spouses"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2010Do2810 decided April 29, 2010"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "On the proceedings after remand, will a separate act of disposition concerning the interest, or the circumstance that the legally protected interest of the spouse victims is identical, be confirmed?", "batch": "b33", "translatedFrom": "ko"}
{"caseNo": "2011Do1651", "issue": "How should identity with a final and conclusive judgment and the limits of findings of fact without amendment of the indictment be determined, and how should the establishment of the offense of breach of trust and the amount of gain be determined with respect to the act of transferring to another company the provisional registration of a sold hotel?", "answer": "The final and conclusive judgment concerning the pre-sale is not a ground for a judgment terminating prosecution on statutory grounds (myeonso) with respect to the fraud charged in the indictment, and findings of fact without amendment of the indictment are also permitted to the extent that the identity of the basic facts and the guarantee of the right of defense are preserved. Because the transfer of the provisional registration gave rise to a risk that the victim's claim would fall into impossibility of performance, the offense of breach of trust is established, and although there was error in failing to deduct secured debts and the like in calculating the amount of gain, this did not affect the outcome of the judgment.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "Application to the facts", "quote": "A case in which, in light of all circumstances, the appellate determination finding the defendants guilty was affirmed on the ground that, by reason of the transfer of the provisional registration, there arose a risk that the victim's claim against the defendants for transfer registration of the provisional registration would fall into impossibility of performance."}, "factors": ["The defendant's act and the social facts serve as the basis, while normative elements are also considered", "Where there is no concern that a substantive disadvantage will be caused to the exercise of the defendant's right of defense", "To the extent that the facts charged in the indictment and the basic facts are identical", "The claim for registration of transfer of ownership held by the buyer has become impossible of performance, or there is a risk that it will fall into impossibility of performance", "The amount of the secured claim within the maximum amount of the claim under a maximum amount mortgage, the amount of the execution claim subject to attachment, and the amount of the claim to be preserved within the amount claimed subject to provisional attachment"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court en banc Judgment 2005Do7288 decided April 19, 2007 (Supreme Court Gazette 2007, 923)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the name under the provisional registration can be restored, what specific circumstances must exist before the risk of impossibility of performance of the claim for registration of transfer is negated?", "batch": "b34", "translatedFrom": "ko"}
{"caseNo": "2011Do15857", "issue": "Do the set-off of a fictitious claim that is void in law and the provision of the company's real property as security for a personal debt each constitute pecuniary damage under the offense of breach of trust?", "answer": "Because damage under the offense of breach of trust is determined from an economic perspective, even if a set-off based on a fictitious claim is void in law, the crime of occupational breach of trust is established where it creates for the company the risk of actual loss. By contrast, where the holder of the security interest knew of the abuse of representative authority, the company bears neither a debt nor an obligation of damages, and the maximum amount mortgage has also been registered out, neither damage nor the risk of actual loss can be recognized.", "disposition": {"value": "partial reversal and remand", "quote": "The remainder is reversed, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "Application to the facts", "quote": "A case in which the judgment of the court below was held to involve a misapprehension of legal principles in that, notwithstanding that no pecuniary damage to Company A arose from the defendant's act of establishing a maximum amount mortgage, nor was the risk of actual pecuniary loss created, it found the crime of occupational breach of trust established to the contrary."}, "factors": ["The relationship with the status of the principal's entire property", "The defendant's claim for the purchase price of the trees did not exist, so the set-off is void in law", "B was fully aware of the circumstance that the defendant was establishing a maximum amount mortgage to secure a personal debt", "and there is no room for it to bear even an obligation of damages arising from employer liability or the tort of the corporation, and", "the maximum amount mortgage was subsequently registered out on the ground of termination"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2003Do4890 decided September 29, 2005 (Gong 2005 Ha, 1739)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where the holder of the security interest knew of the abuse of representative authority, if the void maximum amount mortgage has not been registered out, in what circumstances is the risk of actual loss recognized?", "batch": "b34", "translatedFrom": "ko"}
{"caseNo": "2011Do15056", "issue": "Do transactions between accounts managed by the same person but to which profits and losses are attributed to different persons also constitute matched orders, and what are the scope and method of calculating the profits obtained through market manipulation?", "answer": "Even where accounts to which profits and losses are attributed to different persons are managed by the same person, if orders are placed at the same time and price for the purpose of inducing the mistaken belief that the market is active and flourishing, or of otherwise causing others to form erroneous judgments, this constitutes matched orders. This covers both realized and unrealized profits for which causation with the violating act is recognized, but such causation must be proved by the prosecutor, and, absent special circumstances, unrealized profits are calculated as of the time the act ended, without deducting anticipated future transaction costs.", "disposition": {"value": "partial reversal and remand", "quote": "The guilty portion of the judgment of the court below as to Defendant 1 and the portions as to the remaining defendants are reversed, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "The above 'profits obtained by the violating act' should be understood to mean those among the profits obtained from transactions related to the violating act for which causation with the risk arising from the violating act is recognized."}, "factors": ["Persons to whom profits and losses from the trading of securities are separately attributed", "The purpose of inducing the mistaken belief that the market is active and flourishing, or of otherwise causing others to form erroneous judgments", "The portion of the rise in stock price attributable to normal price movement factors", "The portion of the rise in stock price attributable to factors caused by a third party unrelated to the violator", "At the time the market manipulation ended"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2009Do1374 decided July 9, 2009 (Gong 2009 Ha, 1374)"}, "burden": {"value": "prosecutor", "quote": "Only the profits for which causation with the violating act is recognized must be separately distinguished and calculated, and the burden of proof for that lies with the prosecutor."}, "openQuestion": "In what special circumstances may the valuation reference date for unrealized profits be set differently from the time the market manipulation ended?", "batch": "b34", "translatedFrom": "ko"}
{"caseNo": "2011Da80203", "issue": "Is the liability to return short-swing trading profits premised on whether inside information was actually used, and must an action necessarily be filed within the period for exercising the right to claim return?", "answer": "The liability to return short-swing trading profits is strict liability that does not inquire into whether undisclosed inside information was actually used, or whether there was an intention to profit by its use. The period for exercising the right to claim return is an exclusion period (non-extendable statutory period), but not a period for bringing an action, so the right may also be exercised out of court.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "The period concerning the right to claim return of short-swing trading profits is an exclusion period (non-extendable statutory period), being a period for exercising the right in or out of court, and is not a period for bringing an action for a judicial claim."}, "factors": ["An insider of a listed company or a KOSDAQ-listed company", "Where the person buys and sells shares, etc. of the corporation within a short period of not more than 6 months", "Without inquiring into whether the insider actually used undisclosed inside information, or whether the insider had an intention to profit by using undisclosed inside information", "A period for exercising the right in or out of court"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2006Da73218 decided March 13, 2008 (Gong 2008 Sang, 517)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What content and degree of specificity must an out-of-court demand for return, deemed to have complied with the exclusion period (non-extendable statutory period), possess?", "batch": "b34", "translatedFrom": "ko"}
{"caseNo": "2011Da53683", "issue": "How are the unfairness of KIKO currency option contracts and whether they constitute standard terms determined, and how far do the bank's suitability principle and duty to explain extend?", "answer": "Because unfairness is determined on the basis of the relationship of rights and obligations at the time the contract was concluded, the contract cannot be said to be unfair or unsuitable for hedging merely because exchange rates rose sharply afterwards, or because it serves as risk hedging only in certain ranges; the contract structure itself is not standard terms, and clauses that have undergone individual negotiation are also excluded from the regulation of standard terms. A bank must recommend a contract suited to the company's business circumstances and explain matters so that the customer can understand the material structure and risks, but absent special circumstances, there is no duty to notify or explain price components such as the option theoretical value or commissions and fees, or matters relating to early termination.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "Taking into comprehensive consideration the characteristics of and level of risk of the financial product, the customer's purpose of the transaction, investment experience and capability, etc., the bank must explain sufficiently for the customer to fully understand the material transaction information examined above."}, "factors": ["The relationship of rights and obligations under the overall contract content as of the time the contract was concluded", "The possibility of changing the content after sufficient review and consideration of the relevant clause from a position of equal standing", "The financial condition of the enterprise, including its expected foreign currency inflows, assets, and sales scale", "The need for foreign exchange hedging, the purpose of the transaction, transaction experience, the degree of knowledge or understanding of the relevant contract, and whether other foreign exchange hedging contracts have been concluded", "The characteristics of and level of risk of the financial product, the customer's purpose of the transaction, investment experience and capability"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2010Da55699 decided November 11, 2010 (Gong 2010Ha, 2257)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "How is the specific limit determined at which commissions and fees included in the product structure are markedly high compared to market practice, so as to give rise to the duty to explain?", "batch": "b34", "translatedFrom": "ko"}
{"caseNo": "2010Do9927", "issue": "Where repeated stock market manipulation constitutes a single comprehensive offense, is a person who withdrew from the accomplice relationship after carrying out a portion also responsible for the subsequent offenses of the other accomplices?", "answer": "Market manipulation that is repeated under a single and continuing intent and whose protected legal interest is identical constitutes a single comprehensive offense. A defendant who carried out a portion bears responsibility as a joint principal offender for the subsequent offenses even if he withdrew from the accomplice relationship by reason of dismissal, unless he prevented the other accomplices from executing the crime.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the Seoul Central District Court."}, "standard": {"value": "states requirements", "quote": "Where the defendant carried out a portion of the offenses standing in the relationship of a single comprehensive offense and then withdrew from the accomplice relationship, but the remaining offenses were committed by other accomplices, the defendant bears criminal liability also for the parts in which he did not participate."}, "factors": ["Offenses repeatedly committed over a certain period under a single and continuing intent", "The identity of the protected legal interest of each of the above offenses", "After carrying out a portion of the market manipulation", "Unless the defendant prevented the other accomplices from executing the crime"], "precedent": {"value": "follows existing precedent", "quote": "[1][2] Supreme Court Decision 2005Do630 decided April 15, 2005"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specific measures must an accomplice who withdrew after carrying out a portion take in order to be released from responsibility for subsequent offenses?", "batch": "b35", "translatedFrom": "ko"}
{"caseNo": "2010Do7404", "issue": "In a case of violation of the Securities and Exchange Act in which imprisonment and a fine may be imposed concurrently, is the concurrent imposition of a fine within the court's discretion, and to what extent do profits arising from accounts in the names of others constitute profits obtained by the violating act, depending on to whom they are attributed?", "answer": "The court may, in its discretion and regardless of the statutory provisions cited in the indictment or the prosecutor's sentence demand, determine whether to impose a fine concurrently, and profits obtained by the violating act mean profits attributed to the actor. The court below, which found not guilty certain parts of the charged facts concerning profits from accounts of which the portion attributed to the defendant cannot be specified among funds attributed to the named holders or commingled funds, was affirmed.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "Application to the facts", "quote": "on the ground that the portion of the profits arising from the above account attributed to the defendant cannot be specified"}, "factors": ["Securities accounts in the names of others into which only the funds of the named holders were deposited", "They appear to be attributed to the above named holders and cannot be regarded as attributed to the defendant", "Securities accounts in the names of others into which the funds of the defendant and the named holders are commingled", "On the ground that the portion of the profits arising from the above accounts attributed to the defendant cannot be specified"], "precedent": {"value": "follows existing precedent", "quote": "[2] Supreme Court Decision 2004Do491 decided May 12, 2006, Supreme Court Decision 2007Do6336 decided November 15, 2007"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What materials and calculation methods are required to specify the profits attributed to the defendant from accounts in which the funds of the defendant and the named holder are commingled?", "batch": "b35", "translatedFrom": "ko"}
{"caseNo": "2010Do2094", "issue": "In what cases are the results of an alcohol test based on a blood draw requested by the suspect admissible as evidence, and may they be used merely on evidence consent?", "answer": "Admissibility of evidence is recognized only in exceptional cases where, upon an overall consideration of the content and circumstances of the violation of due process and the related circumstances, the causation between the unlawful act and the evidence-gathering has been severed. Unless there are other circumstances warranting a finding that the influence of the forcible transfer has been excluded and freedom of decision-making has been assured, the results cannot be used as Evidence of guilt, even if the suspect requested the blood draw or the defendant or defense counsel consented to their use as Evidence.", "disposition": {"value": "reversal and remand", "quote": "Reverse the judgment of the court below and remand the case to the collegiate panel of the main court of Jeonju District Court."}, "standard": {"value": "totality of circumstances", "quote": "Upon an overall consideration of the content and circumstances of the act violating due process committed in the course of evidence-gathering, and the related circumstances thereof,"}, "factors": ["The content and circumstances of the act violating due process, and the related circumstances thereof", "Other circumstances warranting a finding that the unlawful elements of that act have been removed or excluded", "A situation in which the suspect's mental state also cannot be regarded as having completely escaped from the state of forcible transfer", "Other circumstances warranting a finding that the influence of the unlawful arrest has been completely excluded and the suspect's freedom of decision-making has been assured with certainty"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2007Do3061 decided November 15, 2007, en banc judgment (Supreme Court Gazette 2007ha, 1974)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "After an unlawful forcible transfer, what specific circumstances must intervene for it to be recognized that the causation between the blood draw and the unlawful arrest has been severed?", "batch": "b35", "translatedFrom": "ko"}
{"caseNo": "2010Do13801", "issue": "What is required for the specification of the facts charged in the indictment to impose aggravated punishment for multiple acts of embezzlement, and for the establishment of joint principal offender liability of the beneficiary of the act of breach of trust; and does a final and conclusive judgment concerning a loan exceeding the single-borrower limit extend res judicata to the offense of breach of trust arising from the same loan?", "answer": "In order to impose aggravated punishment comprehensively for multiple acts of embezzlement, in principle the victim and the amount of damage for each victim must be specified, and the establishment of joint principal offender liability of a beneficiary of the act of breach of trust or of a third party having a close relationship with the beneficiary requires active participation in the act of breach of trust. The violation of the Mutual Savings Banks Act established by a loan exceeding the single-borrower limit and the crime of occupational breach of trust stand in a relation of imaginary concurrence, so a final and conclusive judgment on one offense extends res judicata to the other offense.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed as to the guilty finding against Defendant 1, and this part of the case is remanded to the Busan High Court. The final appeals of Defendant 2, Defendant 3, and the prosecutor are each dismissed."}, "standard": {"value": "states requirements", "quote": "It is necessary to instigate the principal offender's act of breach of trust, or to actively participate in the act of breach of trust by, for example, being involved in the entire process of the act of breach of trust."}, "factors": ["A series of acts attributable to the manifestation of a single criminal intent, where the protected legal interest is unitary and the form of the crime is identical", "Specification of the facts charged in the indictment concerning the victims and the amount of damage for each victim", "Instigating the principal offender's act of breach of trust, or actively participating in the act of breach of trust by, for example, being involved in the entire process of the act of breach of trust", "The two offenses stand in the relation of imaginary concurrence as provided in Article 40 of the Criminal Act"], "precedent": {"value": "follows existing precedent", "quote": "[2] Supreme Court Decision 2003Do4382 decided October 30, 2003 (Gong 2003Ha, 2384), Supreme Court Decision 2007Do1033 decided April 12, 2007"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Apart from cases of instigating the act of breach of trust or being involved in its entire process, what other forms of involvement constitute the active participation required for joint principal offender liability?", "batch": "b35", "translatedFrom": "ko"}
{"caseNo": "2010Do11394", "issue": "If a stock option grant agreement that is legally void is concluded and new shares are later issued accordingly, when is the crime of occupational breach of trust completed?", "answer": "The mere conclusion of a void agreement cannot be regarded as having reached the stage of consummation or as having been completed, absent special circumstances such as the company being held liable in tort. In this case, because new shares were issued for consideration below the actual value of the shares, creating the risk of damage or actual detriment, the offense is completed at the time the stock option is ultimately exercised and the new shares are issued.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "Application to the facts", "quote": "although the crime of occupational breach of trust against the defendant was completed at the time when the act of breach of trust intended by the defendant was entirely carried out, namely at the time when the stock option was ultimately exercised and new shares were issued accordingly,"}, "factors": ["Where it violates relevant statutes or regulations or the articles of incorporation and therefore has no effect in law", "Special circumstances such as the company incurring liability in tort under the Civil Act toward the counterparty to the contract", "Issuing new shares upon receiving only an amount below the actual value of the shares", "Actual loss occurring, or the risk of such actual detriment arising, having been created", "The time at which the stock option is ultimately exercised and new shares are issued accordingly"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2010Do6490 decided September 30, 2010 (Gong2010Ha, 2044)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Apart from bearing tort liability, what other special circumstances may warrant recognizing that the mere conclusion of a void agreement has created a risk of property detriment to the company?", "batch": "b35", "translatedFrom": "ko"}
{"caseNo": "2010Da84420", "issue": "Whether something constitutes short-term trading within six months, which is subject to the return of short-term trading profits, is determined by reference to what point in time, and can the date of preparation of the memorandum of agreement be regarded as the date of conclusion of the sale contract?", "answer": "Whether trading is short-term is determined by reference to the date of conclusion of the contract, and the time of contract conclusion is interpreted by comprehensively considering the text of the terms, the circumstances of the transaction, and the like. In this Case, the memorandum of agreement is a preliminary agreement preceding a definitive sales contract, and therefore the sale was deemed to have been made on the date the stock purchase and sale agreement was prepared.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "totality of circumstances", "quote": "by comprehensively considering the content of its text, the motive and circumstances under which the juristic act was carried out, the purpose the parties sought to achieve by the juristic act and their true intention, trade practices, and the like,"}, "factors": ["the content of its text", "the motive and circumstances under which the juristic act was carried out", "the purpose the parties sought to achieve by the juristic act and their true intention", "trade practices"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2006Da73218 decided March 13, 2008 (Gong 2008 Sang, 517)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the subject matter and price of the sale have been determined in the memorandum of agreement but only some performance conditions are left to be discussed at a later date, when is the sales contract formed?", "batch": "b36", "translatedFrom": "ko"}
{"caseNo": "2010Da63836", "issue": "Does the effect of an assignment of a claim by way of security over future claims extend to claims arising after the commencement of rehabilitation proceedings against the assignor of the claim?", "answer": "Claims arising after the commencement of rehabilitation proceedings arise from acts based on the position of the administrator, a public trustee, and therefore the effect of the preexisting assignment of claims by way of security does not extend to them. In this Case, since no claim constituting the security collateral remained as of the commencement, the bank's residual loan claim was treated as a rehabilitation claim.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Claims arising after rehabilitation proceedings have commenced arise from acts based on the position of the administrator, and not the debtor, and are therefore not included in the object of the assignment of claims by way of security, and"}, "factors": ["the authority to perform the debtor's Work and to manage and dispose of the debtor's property all becomes exclusively vested in the administrator, and", "as manager of the stakeholders' group, he constitutes a kind of public trustee", "inasmuch as Bank B has not obtained satisfaction of the entirety of the loan claim constituting the secured claim,", "no claim constituting the security collateral remained as of the time of the commencement of rehabilitation proceedings, and"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 87DaKa1559 decided October 11, 1988 (Gong 1988, 1403)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Does the effect of the assignment by way of security also fail to extend to claims whose grounds of occurrence had been formed before the commencement of rehabilitation proceedings but which arose concretely after the commencement?", "batch": "b36", "translatedFrom": "ko"}
{"caseNo": "2010Da49083", "issue": "In determining whether a debt omitted from the schedule of creditors constitutes a non-dischargeable debt, what does the debtor's malice mean and how should it be determined?", "answer": "If the debtor learned of the existence of the debt before the discharge order, it constitutes a non-dischargeable debt even where the omission from the schedule was negligent, but if the debtor did not know of its existence, it does not constitute such a debt even where there was negligence in failing to learn of it. Malice must be determined by comprehensively considering matters such as the details of the debt and its connection, and whether the debtor's explanation regarding the circumstances of the omission corresponds to objective materials, and the judgment of the court below, which lacked grounds for recognizing that the debtor did not know of the existence of the debt, was reversed.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the Seoul Central District Court."}, "standard": {"value": "totality of circumstances", "quote": "matters such as the details of the omitted debt and its connection to the debtor, the relationship between that creditor and the debtor, and whether the debtor's explanation regarding the circumstances of the omission corresponds to objective materials must be comprehensively considered in making the determination, and"}, "factors": ["The details of the omitted debt and its connection to the debtor", "The relationship between that creditor and the debtor", "Whether the debtor's explanation regarding the circumstances of the omission corresponds to objective materials"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2005Da76500 decided January 11, 2007 (Supreme Court Bulletin 2007, 284)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Does it also constitute a non-dischargeable debt omitted in bad faith where the debtor knew of the existence of the debt itself but erroneously believed that the debt had already been extinguished?", "batch": "b36", "translatedFrom": "ko"}
{"caseNo": "2010Da37141", "issue": "After the commencement decision for individual rehabilitation proceedings, may an individual rehabilitation creditor newly bring a creditor revocation action?", "answer": "After the commencement decision for individual rehabilitation proceedings, the debtor must exercise the right of avoidance for the purpose of equal repayment to all creditors. A creditor holding a claim entered in the list of individual rehabilitation creditors cannot bring a creditor revocation action premised on individual compulsory execution.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "After the commencement decision for individual rehabilitation proceedings has been rendered, the debtor must exercise the right of avoidance for the purpose of equal repayment to all creditors, and"}, "factors": ["the nature of individual rehabilitation proceedings as a collective debt-processing procedure", "the purpose of the right of avoidance", "the inability to perform any act of receiving repayment of, or demanding repayment of, a rehabilitation claim entered in the list of individual rehabilitation creditors", "aimed at preserving the estate with respect to each individual claim"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "May a creditor holding a claim not entered in the list of individual rehabilitation creditors also be barred from bringing a creditor revocation action after the commencement of individual rehabilitation proceedings?", "batch": "b36", "translatedFrom": "ko"}
{"caseNo": "2009Mo1190", "issue": "Under what requirements is the execution of a warrant lawful where storage media containing electronic information are taken outside the premises to be examined and copied?", "answer": "There must be unavoidable circumstances in which on-site execution is impossible or extremely difficult, together with grounds in the warrant permitting removal; and even after removal, the scope must be restricted to information related to the alleged offense and appropriate measures, such as guaranteeing the right to participate, must be taken. In this case, the reasons for removal and the protective measures were recognized, efforts had been made to limit the scope of copying, and the parties' tacit consent was present; accordingly, the reappeal was dismissed.", "disposition": {"value": "dismissal", "quote": "All reappeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Only where appropriate measures are taken to prevent the distortion or damage of electronic information within the storage media, misuse or abuse, and arbitrary replication or copying, does the execution procedure become lawful."}, "factors": ["Unavoidable circumstances in which execution is impossible or extremely difficult", "Where the warrant so states and such circumstances have actually arisen", "The subjects of document printing or file copying must likewise be limited to portions related to the alleged facts", "Continuous guarantee of the right to participate of the parties or their counsel", "It is reasonable to view the party as having tacitly consented to its appropriateness, and therefore"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where a party has expressly raised an objection to the scope of copying, can execution that copies all files accessed after a certain point in time be lawful?", "batch": "b36", "translatedFrom": "ko"}
{"caseNo": "2009Ma168", "issue": "After authorization of the establishment of a redevelopment association, in what type of lawsuit must defects in the resolution of establishment and the status of officers be contested, and under what circumstances is the interest in confirmation of a legal relationship involving a third party, and the qualification of the owner of an unauthorized building as a member, recognized?", "answer": "Defects in a resolution of establishment after the authorization of establishment are, in principle, contested through appeal litigation against the disposition of authorization, while the status of officers must be contested through a civil action; and a legal relationship involving a third party likewise has an interest in confirmation if it is effective and appropriate for removing anxiety or danger arising in the parties' legal relationship. Although the owner of an unauthorized building is in principle not a member, a lawfully established association may grant qualification within a certain scope by its articles of incorporation.", "disposition": {"value": "dismissal", "quote": "All reappeals are dismissed."}, "standard": {"value": "states requirements", "quote": "An interest in confirmation exists also with respect to the legal relationship between one party and a third party, or the legal relationships among third parties."}, "factors": ["After the disposition of the administrative agency authorizing the establishment of the association", "Anxiety or danger has arisen in the legal relationship of one party, and", "Nor can the provisions of the former Act on the Improvement of Urban Areas and Residential Environments be said to specially set the relationship between a redevelopment association and its chairperson and officers as a public-law service relationship, and therefore", "The not inconsiderable practical need to regulate the indiscriminate proliferation of unauthorized housing within the maintenance zone", "Providing in the articles of incorporation for granting membership qualification to owners of unauthorized buildings"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court en banc Judgment 2007Da2428 decided September 17, 2009 (Supreme Court Bulletin 2009Ha, 1648)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Up to what specific scope may a lawfully established association grant membership qualification to owners of unauthorized buildings through its articles of incorporation?", "batch": "b37", "translatedFrom": "ko"}
{"caseNo": "2009Du7967", "issue": "Does a disposition rejecting an application for recognition as a project operator on the ground that additional criteria not found in the publicly announced guidelines for the implementation of agricultural and forestry projects were not satisfied violate the principle of self-binding or the principle of protection of legitimate expectations?", "answer": "It cannot be said that the guidelines were repeatedly implemented so as to have formed an administrative practice, or that a reliance worthy of protection arose from their mere publication, and special circumstances justifying the imposition of additional requirements in light of a superior public interest are also recognized. Accordingly, the disposition of rejection does not violate the principle of self-binding or the principle of protection of legitimate expectations, nor does it constitute a departure from or abuse of discretion.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Daejeon High Court."}, "standard": {"value": "Application to the facts", "quote": "It cannot be said that the aforementioned guidelines were repeatedly implemented so as to have formed an administrative practice, or that the applicant acquired a reliance worthy of protection from their mere publication"}, "factors": ["The aforementioned guidelines were repeatedly implemented so as to have formed an administrative practice, or", "It cannot be said that the applicant acquired a reliance worthy of protection from their mere publication, and", "A superior public interest request, such as strengthening competitiveness in preparation for the opening of the rice market", "Special circumstances justifying the addition of requirements can be recognized"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2007Da88828, 88835 decided March 26, 2009"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must a published administrative rule be repeatedly implemented before an administrative practice that gives rise to self-binding is established?", "batch": "b37", "translatedFrom": "ko"}
{"caseNo": "2009Do8265", "issue": "May the embezzlement of several government project contribution funds granted under different agreements be bundled as a single comprehensive offense and punished more severely using the aggregated amount of gains?", "answer": "Absent special circumstances, such as a comprehensive legal relationship binding the individual agreements and entrustment relationships into one, the entrustment relationships for each project are separate, making it difficult to recognize the unity of the protected legal interest and of intent. Accordingly, the determination of the court below, which treated this as a single comprehensive offense, aggregated the embezzled amounts, and imposed a more severe punishment, is erroneous.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed insofar as it concerns Defendant 3 and Defendant 4, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "Application to the facts", "quote": "on the ground that the defendants' acts infringed separate fiduciary relationships for each project, so that the protected legal interest resulting therefrom cannot be said to be unitary, nor can the unity of intent readily be recognized"}, "factors": ["The protected legal interest is unitary, and", "The form of the crime is identical, and", "A series of acts arising from the manifestation of a single intent", "Agreements of differing contents entered into at different times", "A comprehensive legal relationship binding the individual agreements and the government contribution fund entrustment relationships into one"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2005Do3929 decided September 28, 2005 (Supreme Court Bulletin 2005Ha, 1731)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Under what circumstances is a comprehensive legal relationship binding the contribution fund entrustment relationships of different government projects into one recognized?", "batch": "b37", "translatedFrom": "ko"}
{"caseNo": "2009Do6411", "issue": "What are the requirements for stock trading in the name of a foreign corporation and failure to perform reporting obligations to constitute fraudulent unfair trading, and how are the gains obtained from the violating acts and the reporting obligation of the beneficial owner determined?", "answer": "Deception cannot be conclusively established merely from trades in the name of a foreign corporation that accord with the facts, and failure to perform the reporting obligation alone does not establish fraudulent unfair trading, which requires the use of a document; however, a beneficial owner bears the reporting obligation for large shareholdings irrespective of the name in which the shares are held. Gains obtained from the violating acts include those of an accomplice for which causation is recognized; in principle, total costs are deducted from total income, but where unfair circumstances exist, the amount is calculated by comprehensively considering all relevant factors, and the prosecutor must prove it.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed in its entirety insofar as it finds Defendant 1 and Defendant 4 guilty, and insofar as it concerns, with respect to Defendant 1, the violation of the Securities and Exchange Act arising from false disclosure of details of the funding for stock acquisition and the like, inducement of a decline in market price, and matched orders; and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "In order to fall under the violating act in subparagraph 2 above, the requirement of 'the use of a document' must be satisfied."}, "factors": ["Purpose of inducing a counterparty to the transaction or unspecified investors to take a certain act by deception", "Special circumstances that false facts were asserted, such as exaggerating the substance of the relevant foreign corporation or providing false information concerning it", "The requirement of 'the use of a document'", "Gains for which causation with the risk arising from the violating act is recognized", "A person who substantially owns the shares of a company for his or her own account"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2009Do1374 decided July 9, 2009 (Gong 2009 Ha, 1374)"}, "burden": {"value": "prosecutor", "quote": "The burden of proof thereon rests with the prosecutor."}, "openQuestion": "Where other causes, such as market fluctuations, have simultaneously affected the stock price, how specifically are the gains having causation with the violating act to be separated and calculated?", "batch": "b37", "translatedFrom": "ko"}
{"caseNo": "2009Do5655", "issue": "Where a director interposed a fictitious supplier into a transaction in which a discount could be obtained and thereby obtained a personal benefit, is the crime of occupational breach of trust established, and can the entire of that benefit be regarded as the amount of the company's loss?", "answer": "Where, although the goods could have been supplied at a discounted price, the director, in order to obtain a personal benefit, had them supplied at an undiscounted price through a fictitious company, the crime of occupational breach of trust is established. However, where special circumstances exist, such as the inability to identify the price at which a discount could have been obtained, the entire benefit obtained cannot be regarded as the amount of loss, and the company is deemed to have suffered a loss whose value cannot be calculated.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "Application to the facts", "quote": "A case in which it was held that the crime of occupational breach of trust was established, and that the company had thereby suffered 'a loss whose value cannot be calculated.'"}, "factors": ["Duty of care of a good manager, or duty of loyalty", "Although the supply price could have been set at a discounted price,", "Intent to obtain the benefit for himself", "After having the supplier create a fictitious supplier company", "Special circumstances such as the inability to identify the price at which a discount could have been obtained"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the price at which a discount could have been obtained can be identified, by what materials and methods should the company's amount of loss be calculated?", "batch": "b37", "translatedFrom": "ko"}
{"caseNo": "2009Do14268", "issue": "Who is the victim of the offense of breach of trust where land destined to become partnership property is registered in the name of a third party without the partner's knowledge, and can the full purchase price of the land be treated as the amount of loss?", "answer": "The victim is the partnership, a joint association, not the individual partner. Because the partnership lost the expectation of acquiring the land while at the same time being released from the obligation to pay the balance of the price, the full purchase price of the land cannot be recognized as the amount of loss.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "Application to the facts", "quote": "Although the victim partnership suffered a decrease in assets corresponding to the value of the land that it had been expected to acquire in the future, on the other hand it was released from the obligation to pay the balance of the price for the land, and therefore it cannot be said that an amount equivalent to the purchase price of the land corresponds to the amount of pecuniary loss suffered by the partnership as a result of the said act of breach of trust,"}, "factors": ["The partnership contract provided for in Article 703 of the Civil Act, having as its content that two or more persons invest together and jointly conduct a business", "The duty to handle affairs with the care of a good manager", "A decrease in the overall asset value of the principal", "Because it was released from the obligation to pay the balance of the price for the land"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2004Do7053 decided April 15, 2005 (Supreme Court Gazette 2005Sang, 791)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "If the benefit arising from release from the obligation to pay the balance of the price is taken into account, what are the partnership's actual amount of loss and the defendant's amount of gain, respectively?", "batch": "b38", "translatedFrom": "ko"}
{"caseNo": "2009Do10541", "issue": "Where a party violates an agreement to create a maximum amount mortgage and creates a joint maximum amount mortgage in favor of a third party, how is the amount of property gain from the act of breach of trust calculated?", "answer": "It should be based on the secured value lost out of the maximum amount of the maximum amount mortgage that was to be created, while reflecting a pro rata allocation according to the value ratios of the jointly secured real properties and a deduction of the remaining secured value. Whether the aggravated punishment provision applies should be determined according to whether the amount of gain, calculated through such examination, is 500 million won or more.", "disposition": {"value": "reversal and remand", "quote": "Reverses the judgment of the court below, and remands the case to the Gwangju High Court."}, "standard": {"value": "Application to the facts", "quote": "The court below, having further examined matters such as the secured value of Real Property A and the remaining secured value pertaining to Real Property A after the above offense, should have calculated the amount of property gain as described above and then determined whether the Act on the Aggravated Punishment, etc. of Specific Economic Crimes Article 3 applies according to whether that amount of gain is 500 million won or more; yet"}, "factors": ["The maximum amount of the maximum amount mortgage that the defendant agreed to create in favor of B", "The value ratios of the jointly secured real properties", "The remaining secured value of Real Property A", "Whether that amount of gain is 500 million won or more"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2008Do9213 decided September 24, 2009 (Supreme Court Decision Gazette 2009ha, 1803)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Is the amount of gain actually calculated through examination of the value ratios of the joint security and the remaining secured value 500 million won or more?", "batch": "b38", "translatedFrom": "ko"}
{"caseNo": "2009Do10092", "issue": "May items that were seized without a warrant upon submission by a person who is not the owner, possessor, or custodian, and photographs thereof, be used as evidence of guilt if the defense consents to their use as evidence?", "answer": "Such seized items and their photographs cannot be used as evidence to establish guilt. Even if the defendant or defense counsel consents to their use as evidence, their admissibility of evidence is not recognized.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Where an item submitted by a person who is not the owner, possessor, or custodian is seized without a warrant, such 'seized items' and 'photographs of the seized items' cannot be used as evidence to establish guilt, and"}, "factors": ["A person who is not the owner, possessor, or custodian", "Cases of seizure without a warrant", "The importance of the warrant requirement declared by the Constitution and the Criminal Procedure Act", "Even if the defendant or defense counsel consented to their use as evidence"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2007Do3061 decided November 15, 2007, en banc judgment (Supreme Court Gazette 2007ha, 1974)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Under what conditions is the admissibility of evidence recognized for separate subsequent evidence obtained as a result of such unlawful seizure?", "batch": "b38", "translatedFrom": "ko"}
{"caseNo": "2009Da84608", "issue": "In light of the appraisal results concerning damage from water pollution and the fact of discharge and arrival of pollutants and the like, can causation and unlawfulness between the construction company's act of discharge and the damage to the fishing ground be recognized?", "answer": "The discharge of harmful pollutants, their arrival at the fishing ground, and the occurrence of damage were proved, so causation was prima facie proved, and since the construction company failed to adduce rebuttal evidence to negate it, causation must be recognized. The appraisal results cannot be rejected in their entirety merely because of some errors therein, and the damage in this Case exceeds the tolerance limit, so unlawfulness is also recognized.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "Application to the facts", "quote": "Causation was prima facie proved between the construction company's discharge of pollutants and the damage consisting of the deterioration of the marine ecosystem and the decline in catch occurring at the fishing ground,"}, "factors": ["Grave error such as the appraisal method and the like contravening rules of experience or lacking reasonableness", "A certain proportion of the pollutants reached some of the sea areas within the fishing ground where A and others engage in fishing operations, and", "Damage such as the deterioration of fishing ground water quality and the destruction of the marine ecosystem resulting in a decline in catch", "The nature of the right or interest infringed and the degree of infringement", "The content and degree of the public character of the act of infringement"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2009Da42666 decided October 29, 2009 (Supreme Court Gazette, Second Half of 2009, 1987)"}, "burden": {"value": "the opposing party", "quote": "If a tortfeasor corporation discharged a certain harmful causal substance and it reached the damaged object and damage occurred, it is consistent with the concept of social equity that the tortfeasor side cannot be exempted from liability unless it proves that the substance was harmless."}, "openQuestion": "As for damage to fishing grounds for which causation and unlawfulness are recognized, how is the amount of compensation for each fisher calculated?", "batch": "b38", "translatedFrom": "ko"}
{"caseNo": "2009Da76362", "issue": "Is an act by which a pledgee acquired the pledged property without going through an act of execution by an enforcement agency and applied it toward the claim also subject to avoidance under the crisis provisions in rehabilitation proceedings, and what are the requirements therefor?", "answer": "Direct enforcement by a pledgee may also be avoided as akin to an act of execution, and no special circumstance rendering it to be regarded as an act of the debtor is required, but requirements such as harm to rehabilitation claim holders must be satisfied. In the absence of special circumstances, the acquisition of the equity securities in this case harms rehabilitation claim holders and may be avoided, and therefore the effect of the set-off based thereon cannot be maintained either.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "even where the right of avoidance is exercised with respect to an act of execution, requirements falling under any one of the subparagraphs of paragraph (1) of Article 100 of the Debtor Rehabilitation and Bankruptcy Act must be satisfied, except for the point concerning the person performing the act, and therefore"}, "factors": ["an act whose direct purpose is the actual satisfaction of a claim through enforcement of an enforceable title or a security interest", "unlike in bankruptcy proceedings, a holder of a security interest has no right of separate satisfaction, and", "the content of the act of execution", "the effect that the existence of the property subject to enforcement has on the maintenance and recovery of the debtor company's earning capacity", "principal assets necessary to continue the business"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 99Da73159 decided July 9, 2002 (Supreme Court Gazette 2002Ha, 1899)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What special circumstances are there under which, notwithstanding the acquisition of principal assets necessary for the business, rehabilitation claim holders are not harmed?", "batch": "b38", "translatedFrom": "ko"}
{"caseNo": "2009Da40547", "issue": "How should it be determined whether a profit guarantee agreement between private parties and the stock trading pursuant thereto amount to market manipulation, and can the principle of prohibition of guaranteed profits be applied mutatis mutandis to such agreement without further ado?", "answer": "The purpose of market manipulation and the requirements of trading are determined by comprehensively considering circumstantial facts such as the motive and form of the trading, and in this case it cannot be categorically asserted that the agreement was made with the intent to form the stock price unfairly. The principle of prohibition of guaranteed profits as applied to securities companies and their officers and employees cannot be applied mutatis mutandis without further ado to a profit guarantee agreement between private parties.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "This may be determined by comprehensively considering circumstantial facts such as the motive and manner of the trading."}, "factors": ["The nature of the securities and the total number of securities issued", "Trends in price and trading volume", "The economic rationality and fairness of the transaction", "The degree of market participation ratio", "A profit guarantee agreement entered into between private parties and not between a securities company and its officers and employees and a customer"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2001Do606 decided December 12, 2003 (Supreme Court Bulletin 2004, 192)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What are the specific limits of denying civil-law effect to a profit guarantee agreement between private parties on grounds other than market manipulation?", "batch": "b39", "translatedFrom": "ko"}
{"caseNo": "2009Da17417", "issue": "Under what requirements is the discontinuation of life-sustaining treatment for an unconscious patient permitted, and how may the patient's intent regarding discontinuation be recognized?", "answer": "The majority opinion permits discontinuation of life-sustaining treatment, absent special circumstances, where the patient has reached the stage of irreversible death and is recognized as having exercised the right to self-determination. The exercise of the right to self-determination may be recognized through a valid advance medical directive or through a presumption of intent based on objective circumstances, and for this patient, both the entry into the stage of death and the presumption of intent to discontinue are recognized.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Where, after reaching the stage of irreversible death, the patient is recognized as exercising the right to self-determination on the basis of human dignity and value and the right to pursue happiness, discontinuation of life-sustaining treatment may be permitted absent special circumstances."}, "factors": ["there is no possibility of recovery of consciousness,", "the loss of vital biological functions related to life cannot be restored, and", "in light of the patient's physical condition, it is evident that death may occur within a short period of time;", "the expressions of intent the patient made to family members, friends, and others in the course of daily life;", "the patient's age, the side effects of treatment, the possibility that the patient may suffer pain, the course of treatment up to reaching the stage of irreversible death, the severity of the disease, and the patient's current condition."], "precedent": {"value": "sets a new standard", "quote": "Where, after reaching the stage of irreversible death, the patient is recognized as exercising the right to self-determination on the basis of human dignity and value and the right to pursue happiness, discontinuation of life-sustaining treatment may be permitted absent special circumstances."}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where objective materials from which the patient's intent may be presumed are lacking, by what Procedure and standards should the decision whether to discontinue life-sustaining treatment be made?", "batch": "b39", "translatedFrom": "ko"}
{"caseNo": "2008Do9213", "issue": "How should the amount of pecuniary benefit or the amount of damage from an act of breach of trust, where a person under an obligation to create a maximum amount mortgage in favor of another person creates a maximum amount mortgage in favor of a third party, be calculated?", "answer": "It is calculated as the amount corresponding to the value, among the value of the security of the maximum amount mortgage that was to be created, that was lost by being used as security for a transaction with the third party. The security value that remains even after the creation of the maximum amount mortgage in favor of the third party is not included in the amount of benefit or damage.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "In calculating this, where the security value of the relevant real property remains even after the creation of the maximum amount mortgage in favor of the third party, that portion cannot be included in the pecuniary benefit or damage."}, "factors": ["The market price of the real property at that time", "The amount of the secured claim under the prior-ranking security interest", "The security value of the maximum amount mortgage that was to be created in favor of that other person", "The security value lost by being used as security for the transaction with the third party", "Where the security value of the relevant real property remains even after the creation of the maximum amount mortgage in favor of the third party"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2004Do5102 decided June 15, 2006"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the market price of the real property or the amount of the secured claim under the prior-ranking security interest is disputed, by what materials and valuation method must the lost security value be determined?", "batch": "b39", "translatedFrom": "ko"}
{"caseNo": "2008Do763", "issue": "What procedures are required for the interpretation and presentation of a search and seizure warrant and for the delivery of the inventory of seized items, and may evidence collected in violation of those procedures exceptionally be used as evidence of guilt?", "answer": "The wording of the warrant must be interpreted strictly and, in principle, the warrant must be presented to each person subject to the disposition, and the inventory of seized items must be drawn up and delivered at the scene immediately after the seizure. Illegally obtained evidence is excluded in principle, but it may be used in exceptional cases where it does not violate the substance of due process and where exclusion of the evidence would run contrary to the purpose of criminal justice, and the prosecutor bears the burden of proving such special circumstances.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "The wording entered by a judge in issuing a search and seizure warrant in order to specify the 'articles to be seized' must be interpreted strictly, and it must not be lightly extended or analogically interpreted to the disadvantage of the person subject to seizure and others."}, "factors": ["The principle is that the warrant must be presented individually to each and every one of those persons.", "The principle is that it must be drawn up and delivered at the scene immediately after the seizure.", "Where the procedural violation of the investigative authority does not amount to a case infringing the substantive content of due process, and", "an exceptional case in which excluding the admissibility of evidence for such evidence is evaluated as producing a result contrary to the purpose for which the Constitution and the Criminal Procedure Act prescribed the provisions of procedure concerning criminal proceedings, seeking harmony between the principle of due process and the ascertainment of the substantive truth and thereby realizing criminal justice"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "prosecutor", "quote": "The prosecutor must prove the existence of concrete and special circumstances warranting the conclusion that the case falls within such an exceptional case."}, "openQuestion": "Where individual presentation of the warrant or immediate delivery of the inventory of seized items has been violated, what concrete circumstances must exist for the admissibility of evidence to exceptionally be recognized?", "batch": "b39", "translatedFrom": "ko"}
{"caseNo": "2008Do7562", "issue": "Where, following a decision of nonconformity with the Constitution applying provisionally to the prohibitory and penal provisions on outdoor assemblies at night, no remedial legislation was enacted by the deadline for amendment, should not guilty or judgment terminating prosecution on statutory grounds (myeonso) be declared as to the relevant fact charged in public prosecution?", "answer": "The majority opinion held that a decision of nonconformity with the Constitution is also a decision of unconstitutionality with respect to a penal provision, and that the relevant provision therefore retroactively loses its force. Accordingly, the relevant fact charged in public prosecution falls under a case that does not constitute a crime, and not guilty must be declared.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below, insofar as it concerns Defendant 1, is reversed, and this part of the case is remanded to the collegiate panel of the main courthouse of Busan District Court. All appeals of Defendant 2 and Defendant 3 are dismissed."}, "standard": {"value": "states requirements", "quote": "Where a provision of law concerning punishment retroactively loses its force, a criminal case in which public prosecution has been filed by applying the relevant provision falls under a case that does not constitute a crime, and the court must declare not guilty as to it pursuant to the first part of Article 325 of the Criminal Procedure Act."}, "factors": ["It constitutes a decision of unconstitutionality with respect to a provision of law, and", "the main text of Article 10 of the Assembly and Demonstration Act, in conjunction with Article 23, subparagraph 1 of the Assembly and Demonstration Act, forms a provision of law concerning punishment, and therefore", "it is provided that where a decision of unconstitutionality is pronounced with respect to a provision of law concerning punishment, the provision retroactively loses its force, and therefore", "a case in which the law was not amended by the above deadline"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court en banc judgment 2010Do5986 decided December 16, 2010 (Supreme Court Gazette 2011Sang, 259)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where remedial legislation is enacted within the deadline for amendment set in the decision of nonconformity with the Constitution, how should the facts charged in public prosecution under the prior provision be handled?", "batch": "b39", "translatedFrom": "ko"}
{"caseNo": "2008Do6953", "issue": "May a secondary recipient of information who jointly participated in the act of directly using the undisclosed internal information received by the primary recipient of information in a transaction be punished as an accomplice?", "answer": "Merely receiving and using the information again does not permit punishment as an accomplice, but where the person jointly participated, at the stage where the primary recipient of information received the information, in the act of directly using it in a transaction, that person may be punished as an accomplice. In light of the agreement to distribute profits, the provision of funds, and the attribution of the trading gains, joint participation by the defendant in this case was recognized.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below, insofar as it concerns the defendant, is reversed, and this part of the case is remanded to Gwangju High Court."}, "standard": {"value": "states requirements", "quote": "If the secondary recipient of information jointly participated, at the stage where the primary recipient of information first received the information, in the act of directly using that information in a transaction, the secondary recipient of information may be punished as an accomplice of the primary recipient of information."}, "factors": ["The defendant proposed distributing those profits, and after the primary recipient of information consented thereto and they conspired to commit the crime,", "the fact that the defendant provided most of the funds for purchasing the shares", "the fact that approximately 60% of the trading gains obtained through the trading of shares was attributed to the defendant"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2000Do90 decided January 25, 2002 (Supreme Court Gazette 2002Sang, 616)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where there is a temporal gap between the receipt of the information by the primary recipient of information and the transaction, to what extent can the information be regarded as having been directly used in the transaction?", "batch": "b40", "translatedFrom": "ko"}
{"caseNo": "2008Do6219", "issue": "What is information that may have a material effect on investment judgment, and at what stage is it deemed to have been generated?", "answer": "It is information that a reasonable investor, when comparing and evaluating the materiality of the information and the probability of the occurrence of the fact, considers to be of value in making a transaction decision. Even if it has not been objectively and clearly completed with certainty, once it has been concretized to such a degree that it is considered to have such value, it is deemed to have been generated.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Once the information has been concretized to such a degree that it is considered to be of value in making a decision concerning a transaction in securities, the information has been generated."}, "factors": ["The position of a reasonable investor", "The materiality of the information", "The probability of the occurrence of the fact", "The degree to which it is considered to be of value in making a decision concerning a transaction in securities"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2003Do4320 decided May 11, 2006 (Supreme Court Gazette 2006Sang, 1079)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the materiality of the information is high but the probability of the occurrence of the fact is low, to what degree must the information have been concretized before material information can be deemed to have been generated?", "batch": "b40", "translatedFrom": "ko"}
{"caseNo": "2008Da48117", "issue": "Where the debtor's guarantee directly induced the creditor's participation, or where the principal obligor is a specially related person of the debtor, is the gratuitous nature of the guarantee denied or the period subject to avoidance extended?", "answer": "Even if the guarantee directly induced the creditor's participation, the gratuitous nature of the guarantee cannot be denied if the debtor did not receive direct and actual economic benefit as consideration for the guarantee. The extension of the period subject to avoidance in relation to specially related persons applies only where the creditor, as the direct counterparty of the guarantee, is a specially related person, and does not apply where only the principal obligor is a specially related person.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to Busan High Court."}, "standard": {"value": "states requirements", "quote": "Unless the debtor received direct and actual economic benefit as consideration for the guarantee, the gratuitous nature of the guarantee act cannot be denied."}, "factors": ["The right to reimbursement to be acquired by the debtor", "Direct and actual economic benefit as consideration for the guarantee", "Where the creditor, who as the direct counterparty of the joint and several guarantee act acquires rights concerning the guarantee and exercises them, is a specially related person of the debtor"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2003Da29128 decided September 26, 2003"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Under what circumstances can the right to reimbursement acquired by the debtor be recognized as direct and actual economic benefit constituting consideration for the guarantee?", "batch": "b40", "translatedFrom": "ko"}
{"caseNo": "2008Da45828", "issue": "Where, following identity verification, the person named in the deposit has been recorded as the depositor, can the person who supplied the funds be recognized as a party to the deposit contract?", "answer": "In principle, the person named in the deposit is a party to the deposit contract, and the same applies even where the person who supplied the funds concluded the contract as agent. To recognize the person who supplied the funds as a party, there must be a clear meeting of minds between the financial institution and that person to exclude the name holder's claim for return of the deposit and attribute it to that person, and this must be recognized very strictly on the basis of concrete and objective evidence.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the Seoul Central District Court."}, "standard": {"value": "states requirements", "quote": "It should be limited to truly exceptional cases in which there is a clear meeting of minds to exclude the depositor name holder's claim for return of the deposit and to conclude a deposit contract with the contributor or others, thereby attributing the claim for return of the deposit to the contributor or others."}, "factors": ["Where the fact of identity verification is clearly recorded in the deposit contract and other documents", "The intention of the person named in the deposit, who is the principal", "A clear meeting of minds", "Concrete and objective evidence with clear probative value", "The circumstances in which the funds were supplied"], "precedent": {"value": "change of precedent", "quote": "Supreme Court Decision 99Da67031 decided March 10, 2000 (Gong 2000Sang, 948) (modified)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What concrete evidence is sufficient to recognize a meeting of minds to exclude the name holder's claim for return of the deposit and attribute it to the person who supplied the funds?", "batch": "b54", "translatedFrom": "ko"}
{"caseNo": "2007Do2202", "issue": "Even where the author's real name or pen name of the cited work is not expressly stated, can this still be recognized as a reasonable indication of the source?", "answer": "Expressly stating the real name or pen name is an example of a method of indicating the source, and thus is not always required without exception; whether the indication of the source is reasonable is determined by comprehensively considering the circumstances of use, such as the kind and nature of the work and the purpose and form of its use. In this case, considering the exclusion of the possibility of confusion with one's own work and the concern over impairment of the author's rights and interests, it was held difficult to find a violation of the duty to indicate the source.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "totality of circumstances", "quote": "It must be determined by comprehensively considering the circumstances of use of the work, such as the kind and nature of the work and the purpose and form of its use."}, "factors": ["The kind and nature of the work", "The purpose and form of its use", "Given that the booklet made by B was promotional in nature and thus prone to exaggeration", "The concern of impairing the author's rights and interests such as reputation"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where no concern of impairing the author's rights and interests is recognized, can a method that states only the name of the academy and an unspecified textbook be recognized as a reasonable indication of the source?", "batch": "b40", "translatedFrom": "ko"}
{"caseNo": "2007Do10056", "issue": "How are the number of offenses and the amount of gain determined for letter of credit fraud committed through sham transactions and window-dressing accounting, and by what is the existence of a loan of money between a resident and a non-resident determined?", "answer": "Fraud through sham transactions and fraud through window-dressing accounting involve different methods of commission and therefore do not constitute a single comprehensive offense even where the victims are the same, and the amount of gain is the aggregate amount of the letter of credit payments for which a payment guarantee was obtained, without deducting the amounts subsequently settled. Whether there is a loan of money is determined not by the form of the contract but by the content of the contract under which the lending and return of money were agreed.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed insofar as it found the defendant guilty in part and insofar as it found the defendant not guilty of the violation of the Foreign Exchange Transactions Act, and this part of the case is remanded to the Gwangju High Court."}, "standard": {"value": "states requirements", "quote": "If the content of that contract is that one party lends money and the other party returns it, this falls under the 'loan agreement of money' under the above provision."}, "factors": ["Since the methods of commission were not identical", "By each of the victims, the letter of credit issuing banks", "The aggregate amount of the letter of credit payments", "Not the form of the contract but the content of the contract"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2002Do2029 decided July 12, 2002 (Gong 2002Ha, 2000)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where sham transactions and window-dressing accounting are simultaneously used for the issuance of a single letter of credit, how is the concurrence-of-offenses relationship between the two offenses of fraud determined?", "batch": "b41", "translatedFrom": "ko"}
{"caseNo": "2007Da71271", "issue": "Are board of directors' approval and the exercise of the right of avoidance required for a company's subscription to a retirement insurance and its consent to an intermediate settlement, and how is the obligation to return insurance proceeds exceeding the retirement allowance determined?", "answer": "Since insurance claim rights and the like under retirement insurance do not belong to the bankruptcy estate, the consent to an intermediate settlement is not an object for the exercise of the right of avoidance, and board of directors' approval is not required for subscription to retirement insurance where the interests of the directors and the company are not in conflict and there is no risk of causing disadvantage to the company. However, the amount by which the insurance proceeds or surrender refund amount received exceeds the retirement allowance payable by the company must be returned as unjust enrichment.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Where the interests of the two are not in conflict and there is no risk of causing disadvantage to the company, approval of the board of directors need not be obtained."}, "factors": ["Since the property that is the object of the bankrupt's act did not belong to the bankruptcy estate in the first place", "The interests of the two are not in conflict", "Since there is no risk of causing the company substantive disadvantage beyond the scope of ordinary fund management for the accumulation of retirement allowances", "The scope of the retirement allowance the company must pay"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 99Da54905 decided September 26, 2000"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "In what specific scope is it recognized that subscription to retirement insurance causes substantive disadvantage to the company beyond ordinary accumulation of retirement allowances?", "batch": "b41", "translatedFrom": "ko"}
{"caseNo": "2006Du330", "issue": "What are the standing to sue of residents challenging dispositions related to the Saemangeum project and the requirements for revocation based on the disposition being void by operation of law or on a change of circumstances, and are those requirements met in this case?", "answer": "Residents within the area subject to environmental impact assessment are recognized as having standing to sue absent special circumstances, while residents outside that area must prove an infringement of, or a threat of infringement to, environmental interests exceeding the threshold of tolerability. The majority opinion held that neither a serious and evident defect rendering the disposition void by operation of law nor a change of circumstances making the maintenance of the disposition markedly contrary to the public interest was recognized, and affirmed the judgment of the court below.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "It must be recognized that, due to such change of circumstances, maintaining that disposition is markedly contrary to the public interest"}, "factors": ["Where a person suffers, or is likely to suffer, environmental harm exceeding the threshold of tolerability", "Where the benefits and costs have manifestly fallen out of balance", "Whether water quality measures are feasible", "Whether the cost of water quality measures has reached a level unbearable in light of generally accepted social notions", "Where maintaining that disposition is markedly contrary to the public interest"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 97Nu19571 decided September 22, 1998 (Gong 1998Ha, 2589)"}, "burden": {"value": "The party asserting it", "quote": "As to whether such a change of circumstances has occurred, the burden of proof rests on the party asserting such a change of circumstances."}, "openQuestion": "To what extent must future water quality problems or changes in the marine environment be confirmed in order for a serious change of circumstances requiring the suspension of the project and a special need in the public interest to be recognized?", "batch": "b41", "translatedFrom": "ko"}
{"caseNo": "2006Do4876", "issue": "Is a property loss recognized for the crime of occupational breach of trust merely by exceeding the lending limit to a single person at a community credit cooperative, and does an executive who has not passed the qualifying examination also fall within the meaning of an employee under the Community Credit Cooperatives Act?", "answer": "The majority opinion held that a property loss cannot be recognized merely by exceeding the lending limit, and that the crime of occupational breach of trust is constituted where there is a problem in recovering the loan receivable in light of debt repayment capacity, collateral value, and the like. An executive appointed by the chairperson falls within the meaning of an employee under the Community Credit Cooperatives Act regardless of whether he or she has passed the qualifying examination.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed as to the portions concerning Defendant 1 and Defendant 2 and as to the guilty portion concerning Defendant 6, and this part is remanded to the Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "When viewed in light of the borrower's financial condition at the time of the loan, the overall financial transaction situation including borrowings from other financial institutions and other debts, the status and prospects of the business, the purpose of the loan funds and the period required, and the like"}, "factors": ["The borrower's financial condition at the time of the loan", "The overall financial transaction situation including other debts", "The status and prospects of the business, the purpose of the loan funds, and the period required", "The economic value of the collateral provided", "Inasmuch as the person was appointed by the chairperson, who holds the power of appointment"], "precedent": {"value": "change of precedent", "quote": "Supreme Court Decision 2002Do2030 decided May 16, 2003 (modified)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what degree must a lack of debt repayment capacity or collateral value reach in order for it to be recognized that there is a problem in recovering the loan receivable?", "batch": "b41", "translatedFrom": "ko"}
{"caseNo": "2006Do2718", "issue": "How are the purpose of market manipulation and the trading acts in futures transactions determined, and must there be an actual price movement or realization of profit for the crime to be constituted?", "answer": "The purpose of market manipulation and the trading acts are determined by comprehensively considering indirect facts such as the motive for the transaction, the trends in price and trading volume, and economic rationality, and for the crime that punishes the market manipulation itself, proof of the possibility of price movement suffices, and an actual price movement or realization of profit is not required. The acts in this case, which repeatedly and continuously placed and cancelled large volumes of fictitious orders within the disclosed quoted price range, constitute market manipulation.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "It can be determined by comprehensively considering indirect facts such as the nature of the relevant futures and its relationship with the underlying asset, the motive and manner of the transaction, the trends in the prices and trading volumes of futures and the underlying asset, the transaction situation before and after, and the economic rationality and fairness of the transaction."}, "factors": ["The nature of the relevant futures and its relationship with the underlying asset", "The motive and manner of the transaction", "The trends in the prices and trading volumes of futures and the underlying asset", "The circumstances of the transaction before and after", "The economic rationality and fairness of the transaction"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 99Do2282 decided June 26, 2001 (Gong 2001Ha, 1781)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "In aggravated punishment based on the profit or the amount of loss avoided, how must the causation between the market manipulation and the profit and the amount of the profit be proven?", "batch": "b41", "translatedFrom": "ko"}
{"caseNo": "2006Do1813", "issue": "Where financial statements in which a net loss was concealed by applying an accounting standard whose effective date had not yet arrived were submitted and credit was thereby obtained from a financial institution, under what requirements are the act of deception and causation for the offense of fraud recognized?", "answer": "Submitting financial statements without explicitly stating the fact that the amended standard was applied in advance and the net loss was treated as net income constitutes an act of deception. If the person with authority to decide the credit extension was deceived thereby and decided on the credit extension, and if the circumstance is recognized that the credit extension would have been impossible or difficult had the truth been known, causation is recognized, and the burden of proof as to that mistake lies with the prosecutor.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "In order for the offense of breach of trust to be established, a property loss to the principal must occur or be threatened to occur by reason of the actor's breach of duty,"}, "factors": ["without explicitly stating it by, for example, clearly annotating it,", "the circumstance that the credit extension would have been impossible or difficult", "the adverse effect on the reliability assessment", "whether the person with authority to decide on the credit extension fell into a mistake and decided on the credit extension", "with no change in actual collateral value"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2002Do7262 decided April 29, 2005 (Supreme Court Gazette 2005, First Half, 871)"}, "burden": {"value": "prosecutor", "quote": "Whether the credit extension granted by the financial institution originated from a mistake caused by the act of deception must be determined on the basis of whether the person with authority to decide on the credit extension fell into a mistake and decided on the credit extension, and the burden of proof as to that matter lies with the prosecutor."}, "openQuestion": "To what extent must the fact that the amended accounting standard was applied in advance be disclosed in the notes for the act of deception against the financial institution to be negated?", "batch": "b42", "translatedFrom": "ko"}
{"caseNo": "2006Do1614", "issue": "Where investment funds that had been returned were obtained by fraud again, how is the amount of gain calculated, and does an act of similar receipt of funds also arise where investment was directly solicited from acquaintances?", "answer": "The total amount of the investment funds delivered in connection with each act of obtaining by fraud constitutes the amount of gain, and the principal and returns that were returned are not deducted. Even where investment was directly solicited from acquaintances, if, given the structure or nature of the fund-raising act, the opportunity to participate is open to anyone who wishes to do so, it constitutes an act of similar receipt of funds as a raising of funds from an unspecified multitude of persons.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "If, given the structure or nature of that fund-raising act, the opportunity to participate in the investment is open to anyone who so wishes, it is reasonable to regard this as an act of raising funds from an unspecified multitude of persons and thus as an act of similar receipt of funds."}, "factors": ["without the intention or ability to properly pay the principal and returns,", "the total amount of the investment funds delivered in connection with each act of obtaining by fraud", "the structure or nature of that fund-raising act", "the opportunity to participate in the investment is open to anyone who so wishes"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 99Do4305 decided February 25, 2000 (Supreme Court Gazette 2000, First Half, 896)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where participation in the investment depends on the introduction of existing investors or on the operator's individual approval, to what extent can the opportunity to participate be regarded as open to anyone?", "batch": "b42", "translatedFrom": "ko"}
{"caseNo": "2006Da80636", "issue": "Where, after the composition approval order became final and conclusive, the composition was revoked due to a new crisis and a declaration of bankruptcy was rendered, can the suspension of payment that had been the cause of the commencement of the composition serve as the temporal standard for avoidance of a gratuitous act?", "answer": "Once the composition approval order becomes final and conclusive, the previous state of suspension of payment or a crisis state equivalent thereto is deemed to have been resolved for the time being. Where the debtor goes bankrupt due to a new crisis thereafter, the suspension of payment serving as the standard of avoidance is limited to the scope having adequate causation with the relevant declaration of bankruptcy or bankruptcy proceedings, and therefore the previous suspension of payment cannot be taken as the standard without any restriction.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "it is reasonable to interpret it as limited to the state of suspension of payment or a crisis state equivalent thereto that is directly connected to, that is, within the scope of adequate causation with, the declaration of bankruptcy or the bankruptcy proceedings, and"}, "factors": ["the act of explicitly or implicitly indicating to the outside that the debtor is generally and continuously unable to perform obligations that are due owing to a lack of financial resources", "while repayment under the terms of the composition, etc. was being made,", "the occurrence of new circumstances or a crisis situation", "the state of suspension of payment or a crisis state equivalent thereto within the scope of adequate causation", "whether the preceding composition proceedings have been terminated, or the period of their progress or lapse"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2000Da63554 decided June 29, 2001 (Supreme Court Gazette 2001, Second Half, 1727)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even after the composition approval order becomes final and conclusive, what specific circumstances could exceptionally permit recognition of adequate causation between the previous state of suspension of payment and the subsequent bankruptcy?", "batch": "b42", "translatedFrom": "ko"}
{"caseNo": "2006Da73218", "issue": "Under what requirements is the stock trading of officers and employees under suspension from office subject to the liability to return short-swing trading profits, or excluded from such application?", "answer": "Officers and employees bear the obligation to return even if they hold that status at only one of the points in time of purchase or sale, and, except for the exceptions under the Enforcement Decree, the application may be excluded only for a type of transaction in which there is objectively no possibility whatsoever of unfair use of inside information. Even where one is under suspension from office, if one traded voluntarily and the mere disposition of suspension does not completely eliminate the possibility of access to inside information, one bears the liability to return.", "disposition": {"value": "partial reversal and remand", "quote": "The part of the judgment of the court below in which the plaintiff lost is reversed, and this part of the case is remanded to the Busan High Court."}, "standard": {"value": "states requirements", "quote": "If the transaction is not of an involuntary type, or is of a type in which the possibility of access to inside information cannot be completely excluded, there is a possibility of unfair use of inside information, and therefore"}, "factors": ["whether the insider traded voluntarily", "whether he or she had the possibility of accessing inside information", "if he or she held that status at only one of the points in time of purchase or sale,", "the mere appearance of the disposition of suspension cannot be regarded as completely excluding the possibility of access to inside information, and therefore"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2001Da36580 decided February 13, 2004 (Supreme Court Gazette 2004, First Half, 451)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Apart from suspension from office, what information-barrier measures must be in place for a transaction type to be recognized as one in which the possibility of access to inside information has been completely excluded?", "batch": "b42", "translatedFrom": "ko"}
{"caseNo": "2006Da50444", "issue": "When does a guarantee given by a company in reorganization for an affiliated company constitute a gratuitous act, and what must be considered when the exercise of the right of avoidance is restricted on the ground of the propriety of that act?", "answer": "Even where the guarantee was the direct cause of the creditor's advance of funds, the gratuitous nature cannot be negated if the company in reorganization did not receive direct and concrete economic benefit in return for the guarantee. In exceptional cases where the act is socially necessary and proper or unavoidable such that the creditor must bear the disadvantage, avoidance is restricted, and propriety is determined by comprehensively considering objective elements such as the state of property and business at the time of the act, the socioeconomic necessity, the content and amount, and the economic benefit, rather than the subjective state.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "It must be determined by comprehensively considering objective elements, such as the state of property and business of the company in reorganization at the time of the act, the socioeconomic necessity of the act, the content and amount of the act, and the economic benefit of the company in reorganization resulting therefrom."}, "factors": ["Direct and real economic benefit", "the state of property and business of the company in reorganization at the time of the act", "the socioeconomic necessity of the act", "the content and amount of the act", "the economic benefit of the company in reorganization resulting therefrom"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2001Da78898 decided August 23, 2002 (Supreme Court Gazette 2002, Second Half, 2199)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what degree must the socioeconomic necessity of a guarantee for an affiliated company exist for propriety to be recognized such that reorganization claimants must bear a decrease in assets or unfairness?", "batch": "b42", "translatedFrom": "ko"}
{"caseNo": "2006Da47677", "issue": "Under what circumstances is a loss guarantee agreement concluded by a representative director without a board resolution valid, and does the company bear liability for damages even where the agreement is void?", "answer": "Unless the counterparty knew or could have known of the nonexistence of the board resolution, the agreement is valid, and the company must prove that circumstance. Even where the agreement is void, if, by reason of the representative director's negligence, the creditor believed the guarantee to be valid and continued the transaction and thereby suffered loss, the company bears liability for compensation jointly and severally with the representative director.", "disposition": {"value": "partial reversal and remand", "quote": "The part of the judgment of the court below concerning defendant Hynix Semiconductor Inc. is reversed in its entirety, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Unless that counterparty knew or could have known that no such board resolution existed, that transaction is valid, and"}, "factors": ["having the same economic purpose, and", "cases where that counterparty knew or could have known that no such board resolution existed", "the role of arranging or brokering the conclusion of the contract", "cases where a creditor who mistakenly believed the guarantee to be valid was thereby induced to continue the transaction and suffered loss", "the content of that contract and the necessity or relevance of the measures required"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2005Da3649 decided July 28, 2005 (Supreme Court Gazette 2005, Second Half, 1415)"}, "burden": {"value": "The party asserting it", "quote": "The party bearing the burden of proof as to the circumstance that the counterparty knew or could have known of the nonexistence of a board resolution (=the company)"}, "openQuestion": "In other types of transactions where a duty on the counterparty to confirm the existence of a board resolution is recognized, what degree of confirmation is required?", "batch": "b43", "translatedFrom": "ko"}
{"caseNo": "2005Do9858", "issue": "If, on the basis of a false claim of ownership, a final and conclusive judgment is obtained in an action for cancellation of an ownership preservation registration, litigation fraud is established; when is the time of consummation of the offense?", "answer": "The majority opinion, treating as a pecuniary benefit the position of being able to cancel the opposing party's ownership preservation registration and to complete a preservation registration in one's own name, recognized the establishment of litigation fraud. The time of consummation of the offense is when the winning judgment becomes final and conclusive.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "This is a case in which, by deceiving the court and obtaining a favorable judgment, the offender acquired the pecuniary benefit of 'the position of being able to remove interference with the ownership of the land in question and to obtain the ownership title,' and in such a case the time of consummation of the offense is when the said judgment becomes final and conclusive."}, "factors": ["While falsely asserting that one is the owner of the land,", "a final and conclusive winning judgment ordering the cancellation of the preservation registration,", "the offender thereby becomes able to apply for an ownership preservation registration in one's own name and to complete that registration,", "it is sufficient that commencement of execution occurs within the 3-year period, and", "the intent to receive money or valuables in return for an introduction"], "precedent": {"value": "change of precedent", "quote": "Supreme Court Decision 83Do1566 decided October 25, 1983 (Gongbo 1983, 1784) (modified)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even if a final and conclusive winning judgment of cancellation is obtained, can the acquisition of the same pecuniary benefit be recognized also in a case where one cannot apply for an ownership preservation registration in one's own name by virtue of that judgment?", "batch": "b43", "translatedFrom": "ko"}
{"caseNo": "2005Do7911", "issue": "Does an act of selling the company's unlisted shares or treasury shares on terms favorable to the representative director, etc. constitute breach of trust?", "answer": "A sale at a markedly low price that forgoes the profit potential of the business and the intrinsic value of the shares, leaving only credit risk with the company, constitutes breach of trust. In a sale of treasury shares carried out, without an appropriate sale procedure, for the personal benefit of the major shareholder who is the representative director rather than for the benefit of the company, both the intent for breach of trust and pecuniary damage to the company were also found.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "Application to the facts", "quote": "A case finding both (1) the intent for the offense of breach of trust — that the sale of treasury shares in question was not based on a managerial judgment made in the interest of the company but was carried out for B's personal benefit — and (2) that a result occurred causing damage to the property status of the company, the principal."}, "factors": ["An example of a normal transaction in which objective exchange value is properly reflected", "The circumstances of the unlisted company in question and of the transaction parties at the time of the transaction", "Given that there is sufficient possibility of generating profits and also raising the value of the enterprise by carrying out the future golf course business plan,", "Without making efforts such as going through the procedure of selecting an appropriate buyer and determining the terms of sale,", "Terms of sale that were unilaterally favorable to B, while conferring no particular benefit on the company"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2005Do856 decided April 29, 2005 (Gong 2005Sang, 902)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where there is no instance of a normal transaction for unlisted shares and multiple valuation methods present differing values, how should the weight given to each method be determined?", "batch": "b43", "translatedFrom": "ko"}
{"caseNo": "2005Do5567", "issue": "Where a person bearing the appearance of an employee of an organization receives money or valuables, for his own gain, under the guise of making a request to a public official concerning a Case of that organization, are the offense of violating the former Attorney-at-Law Act and the offense of delivering a bribe established?", "answer": "If the appearance of being an employee is nothing more than a means to facilitate the making of a request, the organization's Case is not the actor's own Case, and the offense of violating the former Attorney-at-Law Act is established at the very moment money or valuables are received under the guise of a request, irrespective of whether an actual request was made. In such a case where money or valuables are received for the actor's own gain, the offense of delivering a bribe is not established.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Where money or valuables are received under the guise of making a request concerning a Case or official business handled by a public official, the offense of violating the aforesaid provision is established at that very moment, and whether the person who received the money or valuables actually made the request does not affect the establishment of the offense."}, "factors": ["The value of the property or pecuniary benefit that was the object of the unlawful acquisition", "The limit amount guaranteed for the obligation to repay the advance", "If it is nothing more than a means to facilitate the act of making a request to the public official in charge", "The title of Director of the Church Secretariat, a position that does not itself exist in the church's formal organizational structure", "For the purpose of obtaining his own gain"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 86Do436 decided March 25, 1986 (Supreme Court Bulletin 1986, 728)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the money or valuables received include both the actor's own compensation and the money to be delivered to the public official, how is the relationship between the establishment of the two offenses determined?", "batch": "b43", "translatedFrom": "ko"}
{"caseNo": "2005Do4915", "issue": "Does the mere fact that the counterparty to the transaction, knowing of a shareholder's act of breach of trust, demanded and received the grant of security over the company's real estate make the counterparty an abettor of the offense of breach of trust?", "answer": "Even where a transaction is conducted with knowledge of the breach of trust so that conduct apparently constituting assistance exists, if it does not rise to active participation and possesses social appropriateness from the standpoint of the legal order as a whole, there is no unlawfulness sufficient to constitute a crime. The portion of the judgment of the court below recognizing the counterparty to the transaction in this case as bearing liability as an abettor was reversed.", "disposition": {"value": "partial reversal and remand", "quote": "The portion of the judgment of the court below concerning Defendant 2 is reversed, and this part of the case is remanded to the Busan High Court."}, "standard": {"value": "states requirements", "quote": "Where the degree of involvement has not reached that point and, viewed from the standpoint of the legal order as a whole, social appropriateness is present, even if the person, knowing that the principal offender's act constitutes an act of breach of trust, engaged in the transaction and there was conduct that could be evaluated on its face as conduct assisting the act, it is appropriate to hold that there is no unlawfulness sufficient to constitute a crime."}, "factors": ["Where the content of that resolution has an unlawful purpose of harming the company's creditors", "The remaining value of the security after deducting the value of the security covered by the prior-ranking maximum amount mortgage", "The fact of holding a separate interest and independently engaging in the transaction on the opposing side", "By actively participating in the act of breach of trust, such as by instigating the act of breach of trust or being involved in the entire process of that act of breach of trust", "Where, viewed from the standpoint of the legal order as a whole, social appropriateness is present"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 74Do2455 decided June 10, 1975"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What is the specific boundary at which the counterparty's demand for security passes beyond an independent transaction possessing social appropriateness and becomes active participation in the act of breach of trust?", "batch": "b43", "translatedFrom": "ko"}
{"caseNo": "2005Da76500", "issue": "Even where the bankrupt, through negligence, was unaware of the existence of a claim and therefore did not enter it in the list of creditors, does it still qualify as a claim that was not entered in bad faith?", "answer": "A claim that was not entered in bad faith means a case in which the bankrupt, before the discharge order, knew of the existence of the claim yet did not enter it. If the bankrupt did not know of the existence of the claim, it does not qualify as such, even though the omission to enter it was negligent.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "a case in which the bankrupt, before the discharge order, knew of the fact that the claim existed yet did not enter it in the list of creditors"}, "factors": ["Before the discharge order", "knew of the fact that the claim existed yet", "did not enter it in the list of creditors", "regardless of whether there was negligence in failing to enter it in the list of creditors"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "By what Evidence can the fact that the bankrupt knew of the existence of the claim before the discharge order be recognized?", "batch": "b44", "translatedFrom": "ko"}
{"caseNo": "2005Da72348", "issue": "What is the legal ground on which an act that fulfills the requirements for the effectiveness of a change of rights may be avoided, and does fleeing overseas while in a state of insolvency constitute a suspension of payment?", "answer": "An act satisfying the requirements for the effectiveness of a change of rights may be avoided only when it meets the strict requirements of Article 66 of the former Bankruptcy Act, and it cannot be separately avoided under Article 64. Fleeing overseas in a situation where the company had fallen into insolvency and even its normal business had become impossible constitutes a suspension of payment, being an implied expression of the intention not to pay debts generally and continuously.", "disposition": {"value": "dismissal", "quote": "The final appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "An act satisfying the requirements for the effectiveness of a change of rights may become subject to avoidance only when it meets the strict requirements prescribed in Article 66 of the former Bankruptcy Act, and it cannot separately become subject to avoidance under Article 64 of the former Bankruptcy Act."}, "factors": ["The strict requirements prescribed in Article 66 of the former Bankruptcy Act", "The inability to pay debts that are due generally and continuously owing to a lack of means", "Expressing it explicitly or implicitly to the outside", "A state of insolvency", "A situation in which even the normal business of the said company had become impossible"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Can a suspension of payment be recognized even where a debtor who fled overseas continued to pay some of the debts?", "batch": "b44", "translatedFrom": "ko"}
{"caseNo": "2005Da71710", "issue": "In connection with the corporate reorganization procedure, how are, respectively, an assignment of claims to a specific security interest holder, debts discharged due to failure to report, and claims remaining unreturned after the exercise of the right of avoidance treated in avoidance, unjust enrichment, and set-off?", "answer": "An act of assigning claims to a specific security interest holder for the purpose of repayment, after a suspension of payments or the filing of an application for commencement of the reorganization procedure or the like, is a preferential act subject to avoidance; and where a claim equivalent to the distribution received in the stayed distribution procedure was not reported and was accordingly exempted, even if the distribution becomes void, the amount so exempted does not become unjust enrichment of the reorganized company. The claim of the counterparty against whom the right of avoidance is exercised is revived only after the counterparty restores to the original state the performance received or reimburses its value, and until then it cannot be set off against such claim as a counterclaim.", "disposition": {"value": "partial reversal and remand", "quote": "Reversing the portion of the judgment of the court below in which the plaintiff lost, and remanding this portion of the case to Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Where the right of avoidance is exercised, the claim of the counterparty is revived only after the counterparty restores to the original state the performance received by reason of the act subject to the avoidance or reimburses the value thereof"}, "factors": ["A preferential act prejudicing fairness among the company's creditors", "After a suspension of payments or the filing of a petition for bankruptcy, commencement of composition, or commencement of the reorganization procedure", "Exclusion of the claim amount equivalent to such distribution from the filing of the reorganization security right", "After restoring to the original state the performance received or reimbursing the value thereof", "Where the party contests the existence of such debt and is not performing it"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the counterparty against whom the right of avoidance is exercised has restored or reimbursed only a part of the performance received, is the claim revived to the corresponding extent?", "batch": "b44", "translatedFrom": "ko"}
{"caseNo": "2005Da59307", "issue": "If a decision terminating the reorganization procedure becomes final and conclusive while a lawsuit seeking revocation or a claim based on the exercise of the right of avoidance is pending, is the lawsuit terminated and succession thereto also impossible?", "answer": "When the reorganization procedure is terminated, the trustee's qualification, the right of avoidance, and the right to claim return based on its exercise are extinguished, and accordingly any pending lawsuit is also terminated. Because no one can succeed to such rights, succession in the lawsuit is not permitted.", "disposition": {"value": "Other", "quote": "This lawsuit between the plaintiff and the defendant was terminated by the decision on termination of the corporate reorganization procedure dated September 27, 2005 in Seoul Central District Court Corporate Reorganization Case 2003Hoe9."}, "standard": {"value": "states requirements", "quote": "Where a decision terminating the reorganization procedure becomes final and conclusive while a lawsuit seeking revocation or a claim based on the exercise of the right of avoidance is pending, the trustee's qualification is extinguished and, at the same time, the rights related to the relevant lawsuit are absolutely extinguished, and no one can succeed thereto."}, "factors": ["Rights that only the custodian may exercise on the premise that the reorganization procedure proceeds", "Where the reorganization procedure was terminated before any property was restored to the company", "Where the decision terminating the reorganization procedure becomes final and conclusive", "The rights related to the relevant lawsuit are also absolutely extinguished"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 95Da30253 decided October 13, 1995 (Gong 1995Ha, 3775); Supreme Court Decision 2002Da46058 decided July 22, 2004"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "How are the opposing party's rights to property already recovered through the exercise of the right of avoidance before the termination of the reorganization procedure treated after the termination?", "batch": "b44", "translatedFrom": "ko"}
{"caseNo": "2005Da22701", "issue": "In a merger of financial institutions, by what standards are the scope of application of the Special Act, the exercise of voting rights by shareholders and the notice of convocation, the merger ratio, and the legality of the public notice substituting for the inaugural general meeting determined?", "answer": "To a merger between financial institutions, the special provisions apply irrespective of whether the institutions are insolvent or not; restrictions on the exercise of voting rights by proxy, sub-delegation, and exercises based on applications made after the deadline are determined according to the purport of the respective provisions and any special circumstances; and the company is released from liability by giving notice of convocation to the overseas depository institution entered in the register of actual shareholders. A manifestly unfair merger ratio constitutes grounds for invalidity of the merger, but where it has been calculated in accordance with the relevant statutes and regulations, absent special circumstances it is not invalid, and in a merger creating a new company, the inaugural general meeting may be substituted by a notice of the board of directors given in the ordinary manner of public notice prescribed in the articles of incorporation.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Where there are special circumstances such that the holding of the general meeting of shareholders is unfairly obstructed or the interests of the company are likely to be unfairly infringed by reason of the proxy exercise of the voting right, the company may refuse it."}, "factors": ["Where all merging party companies are financial institutions", "The holding of the general meeting of shareholders is unfairly obstructed or the interests of the company are likely to be unfairly infringed", "It was arbitrarily effected in violation of the principle of shareholder equality or in order to manipulate the result of the exercise of voting rights", "Diverse elements other than asset value, such as market value, earning value, and relative value", "The ordinary manner of public notice prescribed in the articles of incorporation of the merging party company"], "precedent": {"value": "follows existing precedent", "quote": "[2] Supreme Court Decision 2001Do2917 decided September 7, 2001 (Supreme Court Gazette 2001Ha, 2209) / [5] Supreme Court Decision 94Da30690 decided January 26, 1996 (Supreme Court Gazette 1996Sang, 718) / [9] Supreme Court Decision 2007Da64136 decided January 10, 2008 (Supreme Court Gazette 2008Sang, 199)"}, "burden": {"value": "The party asserting it", "quote": "If the shareholder or the agent can prove the authenticity of the power of attorney or the fact of the delegation by other means, the company may not deny the authority of representation."}, "openQuestion": "Even in the case of a merger ratio set according to the statutory method of calculation, to what extent must the projected figures be unrealistic in order to constitute special circumstances warranting a finding that the merger is invalid?", "batch": "b44", "translatedFrom": "ko"}
{"caseNo": "2004Do1164", "issue": "By what criteria are the specification of the charged facts, the number of offenses, the existence of a conspiracy, and the subjective purpose determined in cases of unfair trading acts repeated with the purpose of manipulating market prices?", "answer": "As for the charged facts of a single comprehensive offense, it is sufficient to specify them so that the entire criminal course of conduct can be distinguished, and repeated unfair trading acts with the purpose of manipulating market prices constitute a single comprehensive offense, while a conspiracy may also be formed through a sequential or implicit meeting of minds. As the purpose of inducing errors as to trading, awareness of the possibility suffices, and whether there was a purpose of inducing securities transactions and whether the trading was of an artificial price-fluctuation character is determined in consideration of the nature and motives of the trading, the price and trading circumstances, and other factors.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "In order for the offense of violation of paragraph (1) of Article 188-4 of the former Securities and Exchange Act (as it stood before its amendment by Act No. 6695 on April 27, 2002) to be established, in addition to the fact of matched orders or wash sales, there must be, as a subjective requirement, \"a purpose of causing persons to wrongly believe that brisk trading is taking place, or of causing other persons to make erroneous judgments\""}, "factors": ["the period from the commencement to the completion of the entire course of criminal conduct, the method of the offenses, the victims or counterparties, and the total number of offenses or the aggregate amount of damage", "The meeting of minds to accomplish that crime", "awareness of the possibility", "The nature of the securities and the total number of securities issued", "the motives and types of the securities transactions, the trend of the price of the securities in question, and the trading circumstances before and at the time"], "precedent": {"value": "follows existing precedent", "quote": "[3][5] Supreme Court Decision 2003Do7112 decided March 26, 2004 (Supreme Court Bulletin 2004Sang, 747)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must there be a temporal gap or a change of purpose between repeated unfair trading acts before the single comprehensive offense is divided?", "batch": "b45", "translatedFrom": "ko"}
{"caseNo": "2004Da46519", "issue": "What subjective recognition on the part of the company is required for a preferential payment to a particular creditor to become subject to avoidance for fraudulent intent?", "answer": "A preferential payment is also subject to avoidance for fraudulent intent, but the company must have the recognition that it is paying a particular creditor in evasion of the principle of equality of creditors applied in corporate reorganization proceedings, and an active intent to harm is not required. In a case where, in a state of suspension of payments, payment was made to a particular creditor in order to obtain an expression of non-punishment (waiver of prosecution) with respect to the representative director, the company's fraudulent intent may be inferred.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Recognition is required that payment is being made to a particular creditor in order to evade the principle of equality of creditors that applies where corporate reorganization proceedings are commenced, but it is not further required that there be an active intent or inclination to harm the reorganization claimants."}, "factors": ["A so-called act of preferential payment contrary to fairness among other reorganization claimants", "Recognition that payment is being made to a particular creditor in order to evade the principle of equality of creditors", "A state of suspension of payments in which debts cannot be paid in a general and continuous manner", "In order to obtain an expression of non-punishment (waiver of prosecution) with respect to the representative director against whom a criminal complaint had been filed for a violation of the Illegal Check Control Act"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2003Da271 decided November 10, 2005 (Gongbo 2005Ha, 1925)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where payment to a particular creditor is also necessary for the continuation of the company's business, how is it to be determined whether there is the recognition that the principle of equality of creditors is being evaded?", "batch": "b45", "translatedFrom": "ko"}
{"caseNo": "2004Da32503", "issue": "Can the provision of security for the purpose of obtaining an extension of a bill's maturity or avoiding dishonor proceedings be regarded as an act falling within the company's duties under the former Corporate Reorganization Act?", "answer": "For an act to fall within the company's duties, the company must bear a concrete duty and the creditor must have the right to claim its performance. The provision of security in this Case is in substance no different from the provision of security for the purpose of obtaining an extension of a bill's maturity or avoiding dishonor proceedings, and therefore cannot be regarded as an act falling within the company's duties.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "It means a case in which a concrete duty is borne and the creditor has the right to claim performance of that concrete duty."}, "factors": ["a concrete duty is borne", "the creditor has the right to claim performance of that concrete duty", "an extension of the maturity of a bill whose maturity has arrived is obtained", "security is provided in order to avoid dishonor proceedings"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2000Da26067 pronounced December 8, 2000 (Supreme Court Gazette (Upper), 2001, 257)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must a security provision agreement concluded in advance be specific in order to confer upon the creditor a right to claim for performance?", "batch": "b45", "translatedFrom": "ko"}
{"caseNo": "2004Da30040", "issue": "What are the scope and method of calculation of the return of short-swing profits from shares acquired before the amendment of the Enforcement Decree, in the case of concurrent transactions between a nominee account and a real-name account, and does the relevant Enforcement Decree violate the Constitution?", "answer": "Where sales from a nominee account and purchases into a real-name account of the same person occur at substantially the same time, the quantities for which the prices match exactly are excluded from the transactions subject to return; for quantities acquired before the Enforcement Decree took effect and sold thereafter, the weighted average method is applied, and the nominee account and the real-name account are treated as a single account in calculating profits. The scope of delegation is determined by comprehensively considering the overall system and purport, etc. of the Act, and the provision of the Enforcement Decree under which, if the calculated amount is 0 won or less, there is deemed to be no profit does not violate the Constitution.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "Application to the facts", "quote": "A case holding that an order to return short-swing profits should be issued only with respect to the remaining portion, excluding the portion where the date and time and price of the sale and the date and time and price of the purchase match."}, "factors": ["Purpose and requirements of the short-swing profit recovery system", "If a sell order from the nominee account and a buy order from the real-name account existed at substantially the same time", "The quantity for which the sale price in the nominee account matches exactly the purchase price in the real-name account", "Of the shares purchased before that effective date, the quantity not sold before that effective date and sold thereafter", "The overall system, purport, and purpose of the Act to which the delegation clause belongs"], "precedent": {"value": "follows existing precedent", "quote": "[4] Supreme Court Decision 2001Du5651 decided August 23, 2002 (Gong 2002Ha, 2221), Supreme Court Decision 2003Du10701 decided January 29, 2004 (Gong 2004Sang, 398), Supreme Court Decision 2003Du7606 decided July 22, 2004 (Gong 2004Ha, 1530)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where there is a time gap between the sell order from the nominee account and the buy order from the real-name account, up to what point can the transactions be recognized as ones occurring at substantially the same time?", "batch": "b45", "translatedFrom": "ko"}
{"caseNo": "2004Da27686", "issue": "Is the act of a reorganization company receiving an overvalued in-kind contribution and issuing new shares also subject to the exercise of the right of avoidance under the former Corporate Reorganization Act?", "answer": "Even if the subject matter of the in-kind contribution was overvalued, unless there are special circumstances, the company's assets do not decrease but increase; accordingly, the act of receiving an in-kind contribution and issuing new shares is not subject to the exercise of the right of avoidance.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "The act of a reorganization company receiving an in-kind contribution and issuing new shares, even if the subject matter of the in-kind contribution was overvalued, unless there are special circumstances, results in the reorganization company's assets not decreasing but increasing, and"}, "factors": ["Restoration of the company's assets for the rehabilitation of the corporate enterprise and equality among creditors", "Even if the subject matter of the in-kind contribution was overvalued", "Unless there are special circumstances", "The reorganization company's assets do not decrease but increase"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What special circumstances would permit an in-kind contribution and the issuance of new shares to be treated as subject to the exercise of the right of avoidance?", "batch": "b45", "translatedFrom": "ko"}
{"caseNo": "2003Mo402", "issue": "Can a detained suspect demand the participation of counsel at an interrogation and challenge the refusal disposition by quasi-appeal, and in what cases may the investigative agency restrict participation?", "answer": "A detained suspect may demand the participation of counsel, and a refusal disposition regarding participation is subject to quasi-appeal. Participation may be restricted where special circumstances giving substantial grounds to suspect obstruction of the interrogation or leakage of investigative secrets, etc. are objectively apparent and the necessity of restriction is recognized.", "disposition": {"value": "dismissal", "quote": "The re-appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "It is only natural that the participation of counsel may be restricted where it is objectively apparent that there are special circumstances giving substantial grounds to suspect concerns such as obstruction of the interrogation or leakage of investigative secrets, and it is recognized that there is a need to restrict the participation of counsel."}, "factors": ["The right of a person whose body is restrained to meet and communicate with counsel is guaranteed under the Constitution and statutes", "and must be harmonized with other fundamental rights guaranteed under the Constitution", "Concerns such as obstruction of the interrogation or leakage of investigative secrets", "Need to restrict the participation of counsel"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specific conduct of counsel constitutes special circumstances that objectively and clearly raise concerns of obstruction of the interrogation?", "batch": "b46", "translatedFrom": "ko"}
{"caseNo": "2003Ma1477", "issue": "Can a claim for prohibition of expressive conduct be made on the basis of the right to honor, and under what requirements is a prior restraint of expressive conduct permitted?", "answer": "A person whose honor has been unlawfully infringed may, on the basis of the right to honor, claim removal of the present infringement and prohibition of future infringement. A prior restraint is exceptionally permitted where the content of the expression is untrue, or where it concerns a matter of public interest and its purpose is not solely for the public interest, and where there is a risk of causing the victim serious and manifest harm that is difficult to recover from.", "disposition": {"value": "dismissal", "quote": "The re-appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "A prior restraint is exceptionally permitted only where such substantive requirements are met."}, "factors": ["The content of the expression is untrue, or", "it concerns a matter of public interest and its purpose is not solely for the public interest, and", "Risk of causing the victim serious and manifest harm that is difficult to recover from", "Need for the prohibition as an effective and appropriate remedy"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 93Da40614, 40621 decided April 12, 1996 (Gong 1996Sang, 1486)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specific circumstances are required for the harm caused by infringement of honor to be recognized as serious and manifest and difficult to recover from?", "batch": "b46", "translatedFrom": "ko"}
{"caseNo": "2003Do7112", "issue": "What are the requirements for the establishment of market manipulation and conspiracy and the criteria for specifying the facts charged, and can the provision on an aggravated fine be applied to conduct of using undisclosed information where the amount of profit is not stated in the indictment?", "answer": "As for the deceptive purpose of matched orders or wash sales, awareness of the possibility suffices; whether a transaction constitutes market manipulation is determined by comprehensively considering the circumstances of the transaction; and conspiracy may be established even by a tacit meeting of minds. The facts charged must be specifically specified, and where the amount of profit and the basis for its calculation are not stated in the indictment so that the prosecution is based only on violation of the main text, imposing the sentence under the proviso without amending the indictment violates the principle of 'no trial without accusation' (bulgo-bulli).", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed in its entirety with respect to the defendants, and this part of the case is remanded to the collegiate panel of the Seoul Central District Court."}, "standard": {"value": "states requirements", "quote": "For the crime of violation of Article 188-4 paragraph (1) of the Securities and Exchange Act to be established, in addition to the fact of matched orders or wash sales, there must be, as a subjective requirement, 'the purpose of causing persons to mistakenly believe that active trading is underway or otherwise causing other persons to make erroneous judgments,' and"}, "factors": ["Awareness of the possibility suffices, and", "The nature of the securities and the total number of securities issued", "The motives and types of trading transactions", "A tacit meeting of minds regarding the joint execution of the crime", "Basic materials such as the transaction value from which that amount of profit can be calculated are not even stated in the indictment, and"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2001Do3567 decided November 27, 2001 (Gong 2002Sang, 222)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "In the facts charged for conduct of using undisclosed information, to what extent must the time and method of use of the information be stated specifically for them to be recognized as specified?", "batch": "b46", "translatedFrom": "ko"}
{"caseNo": "2003Do686", "issue": "How are false representation and unfair gain determined in securities transactions, and how are the profit gained from the violation and the scope of recipients of undisclosed information defined?", "answer": "False representation is determined by whether the content of the disclosure itself is untrue, and transaction relevance, unfair gain, etc. are determined objectively by comprehensively considering all circumstances, and include intangible benefits and future gains. The profit gained from the violation is the net trading profit after deducting transaction costs, but transfer income tax is not deducted; a recipient of information is a person who has received information, learned by statutory insiders and others in connection with their duties.", "disposition": {"value": "partial reversal and remand", "quote": "The guilty portion of the judgment of the court below with respect to Defendant 1 is reversed, and this part of the case is remanded to the collegiate panel of the main division of the Seoul District Court. All appeals by Defendant 2 and the prosecutor are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "It must be determined by objective criteria, comprehensively considering the status of the actor, the management condition of the issuing company and the trend of its stock price, and all circumstances before and after the act, and"}, "factors": ["Whether the content of the disclosure itself is untrue", "The status of the actor", "The management condition of the issuing company and the trend of its stock price", "All circumstances before and after the act", "Transaction costs such as the purchase commission, sales commission, and securities transaction tax (in the case of the Korea Exchange, including the rural special tax) incurred for that transaction"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2000Do4444 decided January 19, 2001 (Gong 2001Sang, 578)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must the possibility of realizing the gain be concrete for it to be recognized that a future gain not yet realized was sought?", "batch": "b46", "translatedFrom": "ko"}
{"caseNo": "2003Do6759", "issue": "Does the prohibition on unfair trading practices apply to over-the-counter direct face-to-face transactions in unlisted and unregistered securities, and is actual misunderstanding or obtaining of a benefit required for the crime of using documents containing false or deficient representations?", "answer": "Since the applicable prohibition applies to transactions in all securities as defined by statute, it applies to over-the-counter direct face-to-face transactions in unlisted and unregistered securities as well. The offense is established where a document containing a false representation of a material matter or an omission of a necessary fact is used for the purpose of causing misunderstanding to another person and thereby obtaining a pecuniary benefit, and actual misunderstanding or obtaining of a benefit, as well as causation between the use of the document and the misunderstanding, is not required.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Since it is not required that the act of using a document actually 'cause misunderstanding to another person' or that the person 'obtain money or other pecuniary benefit,'"}, "factors": ["All securities included among the securities defined in each subparagraph of paragraph (1) and paragraph (2) of Article 2 of the same Act", "A document containing a false representation of a material matter or omitting the representation of a necessary fact", "For the purpose of obtaining money or other pecuniary benefit by causing misunderstanding to another person"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2002Do4561 decided November 26, 2002"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "By what specific criteria are the materiality of the matters represented in the document and the necessity of the omitted facts determined?", "batch": "b46", "translatedFrom": "ko"}
{"caseNo": "2003Da69607", "issue": "How are the loss of an investor who purchased securities at a price formed by market manipulation, and the normal stock price needed to calculate it, determined?", "answer": "The loss is the difference between the manipulated stock price and the normal stock price at the time of purchase, and where the securities were actually sold at a price higher than the normal stock price, it is the difference between the manipulated stock price and the selling price. The normal stock price may be estimated by reasonable methods, such as expert appraisal and regression analysis using publicly available indicators.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "It may be determined by reasonable methods, such as financial-economic methods of estimating the normal stock price."}, "factors": ["The stock price deemed to have been formed at the time of purchase (the normal stock price)", "The stock price at which the investor actually purchased (the manipulated stock price)", "Where the securities were actually sold at a price not less than the normal stock price", "Where the difference is statistically significant", "The most appropriate among publicly available indicators, such as the composite stock price index, the industry index, and the stock prices of companies of the same type"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where multiple reasonable methods of estimating the normal stock price yield different results, which method should be given priority?", "batch": "b47", "translatedFrom": "ko"}
{"caseNo": "2003Da65049", "issue": "What is the scope within which payment as due made during the period of crisis may be avoided, how is the exception of reasonableness determined and where does the burden of proof lie, and is the time spent on the preceding insolvency proceedings counted within the exercise period for avoidance on the ground of crisis?", "answer": "Payment as due made during the period of crisis may also be avoided as a preferential act; however, in exceptional cases where, in view of the various circumstances, it is socially necessary or unavoidable and its reasonableness is recognized, it may not be avoided, and those circumstances must be asserted and proven by the beneficiary. Unless there are special circumstances, the time spent on the preceding insolvency proceedings is not counted within the exercise period for avoidance on the ground of crisis.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "totality of circumstances", "quote": "It must be determined concretely in light of the principle of good faith and the idea of equity"}, "factors": ["The state of the bankrupt's property and business at the time of the act", "The bankrupt's subjective state of mind", "The source of the repayment funds", "The relationship between the bankrupt and the creditor", "Whether the creditor colluded with the bankrupt or exercised influence, such as coercing the bankrupt to make repayment"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2001Da78898 decided August 23, 2002 (Supreme Court Gazette 2002, Second Half, 2199)"}, "burden": {"value": "the opposing party", "quote": "The burden of proof rests on the counterparty, the beneficiary."}, "openQuestion": "What special circumstances cause the time spent on the preceding insolvency proceedings to be counted within the exercise period for avoidance on the ground of crisis?", "batch": "b47", "translatedFrom": "ko"}
{"caseNo": "2003Da60396", "issue": "May an exception not enumerated in statutes and subordinate statutes be recognized to liability to disgorge short-swing profits, and does a sale on the open market by a major shareholder who abandoned a hostile takeover fall within such an exception?", "answer": "Even where not enumerated in statutes and subordinate statutes, the application may be excluded for types of transactions where there is no possibility whatsoever of unfair use of inside information viewed objectively. However, where a major shareholder who abandoned a hostile takeover disposed of the acquired shares on the open market, this constitutes a sale for which liability to disgorge arises.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Types of transactions where, viewed objectively, there is no possibility whatsoever of unfair use of inside information"}, "factors": ["The legislative purpose of the short-swing profit disgorgement system", "The nature of the grounds for exception prescribed in Article 83-6 of the Enforcement Decree of the same Act", "The purport of the guarantee of property rights prescribed in Article 23 of the Constitution", "Types of transactions where, viewed objectively, there is no possibility whatsoever of unfair use of inside information", "Where, having abandoned the takeover in the face of resistance from the management of the target company, the shares acquired in large quantities were disposed of on the open market"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2002Da69327 decided February 12, 2004, Supreme Court Decision 2001Da36580 decided February 13, 2004 (Supreme Court Gazette 2004 (First Half), 451)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specific facts must be confirmed in order to recognize that a transaction is of a type where there is no possibility whatsoever of unfair use of inside information?", "batch": "b47", "translatedFrom": "ko"}
{"caseNo": "2003Da55059", "issue": "In an action for confirmation of a pledge over the trustee's claim for reimbursement of expenses, how are the interest in confirmation, whether consent is required for assignment of the claim subject to the pledge, the scope of the pledge and of the exercise of the right of self-help sale, the trustee's duty of fidelity, and the effect of the right of avoidance determined?", "answer": "Confirmation must be the most effective and appropriate means of eliminating the uncertainty and risk of a legal position; consent of the pledgee is not required for assignment of the claim subject to the pledge; and the trustee's claim for reimbursement of expenses is an independent right which may be assigned and made the object of a pledge. The pledgee may not directly exercise the right of self-help sale; the trustee bears a duty of fidelity to further the benefits of the trust property to the maximum extent in accordance with the purpose of the trust; and the effect of the right of avoidance arises only between the bankrupt estate and the counterparty.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Since the trustee's claim against the trust property for reimbursement of expenses is a right personally held by the trustee and its independence may be recognized, it may be assigned and may also become the object of a pledge of rights."}, "factors": ["Since it does not amount to a change prejudicing the interests of the pledgee", "So long as the trust affairs have been properly conducted", "Since it is a right personally held by the trustee and its independence may be recognized", "Based on the trustee's power of management and disposition as the nominal holder of the trust property", "The restriction that, as manager of the trust property, the trustee must dispose of the trust property in accordance with the purpose of the trust"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2001Da25078 decided June 28, 2002 (Supreme Court Gazette 2002 (Second Half), 1794)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the trustee does not exercise the right of self-help sale, by what specific procedure may the pledgee of the claim for reimbursement of expenses realize the pledge?", "batch": "b47", "translatedFrom": "ko"}
{"caseNo": "2003Da53497", "issue": "What is the starting point of the 15-day period for avoidance of an act satisfying the opposability requirement under the Corporate Reorganization Act, and what provision applies, and may acts of creditors or third parties also be avoided?", "answer": "The 15 days run from the date on which the underlying act takes effect; an act satisfying the opposability requirement may be avoided only where it meets the strict requirements of Article 80, and Article 78 cannot be applied separately thereto. Acts of creditors or third parties may be avoided exceptionally where, by reason of special circumstances such as collusion with the company prior to reorganization, they can be identified with acts of the company.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "It may become the object of avoidance only where it satisfies the strict requirements prescribed in Article 80 of the same Act, and it cannot separately become the object of avoidance under Article 78 of the same Act."}, "factors": ["The date on which the underlying act takes effect", "Where it was done in bad faith after 15 days had elapsed", "Special circumstances such as collusion with the company prior to reorganization", "Where an act of a creditor or a third party can be identified with an act of the company"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 99Da73159 decided July 9, 2002 (Supreme Court Gazette 2002 (Second Half), 1899), Supreme Court Decision 2001Da46761 decided July 9, 2002 (Supreme Court Gazette 2002 (Second Half), 1910)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Apart from collusion, what special circumstances are included that allow an act of a creditor or a third party to be identified with an act of the company?", "batch": "b47", "translatedFrom": "ko"}
{"caseNo": "2003Da271", "issue": "Is a preferential act of making repayment to, or providing security for, a specific creditor subject to intentional avoidance under the Bankruptcy Act even where there is no excess of liabilities over assets, and what is the subjective requirement therefor?", "answer": "Even where there is an excess of assets over liabilities at the time of the act, if it is probable that not all claims will be satisfied in future bankruptcy proceedings, the preferential act may be avoided. Intentional avoidance requires recognition that repayment is being made to, or security is being provided for, a specific creditor only, for the purpose of evading the principle of equal treatment of creditors.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "It must be said that recognition is required that repayment is being made to, or security is being provided for, a specific creditor only, for the purpose of evading the principle of equal treatment of creditors, which applies where bankruptcy proceedings are commenced."}, "factors": ["Since, so long as the funds for distribution in future bankruptcy proceedings cannot satisfy in full the common benefit claims and the bankruptcy claims", "An act that reduces the amount of distribution which other creditors should receive in bankruptcy proceedings", "Recognition that repayment is being made to, or security is being provided for, a specific creditor only, for the purpose of evading the principle of equal treatment of creditors", "The point that, in its substance and economic effect, it amounts merely to an extension of the maturity of an existing obligation"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "On the basis of materials from what point in time and what degree of risk is the probability that the funds for distribution will not satisfy all claims recognized?", "batch": "b48", "translatedFrom": "ko"}
{"caseNo": "2002Mu22", "issue": "Even where the administrative agency has made a re-disposition after a judgment of revocation of a refusal disposition, may an application for indirect compulsory execution be filed if that disposition is void by operation of law as contravening the binding force of the final and conclusive judgment?", "answer": "A re-disposition that is void by operation of law as contravening the binding force is the same as where no re-disposition has been made, and therefore satisfies the requirements for an application for indirect compulsory execution. Notwithstanding the transitional provision directing the application of the former provisions, a new refusal disposition applying the amended statute is void by operation of law as it contravenes the binding force of the final and conclusive judgment.", "disposition": {"value": "reversal and remand", "quote": "The order of the court below is reversed, and the case is remanded to the Busan High Court."}, "standard": {"value": "states requirements", "quote": "Even though a re-disposition has been made, if it is void by operation of law on the ground, among others, that it contravenes the binding force of the final and conclusive judgment revoking the previous refusal disposition, this is the same as if no re-disposition whatsoever had been made"}, "factors": ["The final and conclusive judgment of revocation of the refusal disposition", "The administrative agency makes no re-disposition whatsoever, or", "Void by operation of law on the ground, among others, that it contravenes the binding force of the final and conclusive judgment revoking the previous refusal disposition", "A transitional provision that, where an application for permission for development activity was already pending at the time of its enforcement, the former provisions shall apply"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 96Du70 decided February 4, 1997 (Supreme Court Gazette 1997 (Part 1), 670), Supreme Court Decision 97Du22 decided January 7, 1998 (Supreme Court Gazette 1998 (Part 1), 532)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the amended statute contains no transitional provision protecting pending applications, does a new refusal disposition under that amended statute contravene the binding force of the judgment of revocation?", "batch": "b48", "translatedFrom": "ko"}
{"caseNo": "2002Do7262", "issue": "How are the scope of establishment of the offense of fraud and the crime of transferring property abroad in fund-raising and overseas remittance using fraudulent accounting, and the effects of additional collection and voluntary surrender, determined?", "answer": "A loan obtained by deceiving a financial institution through fraudulent accounting constitutes the offense of fraud regardless of the ability to repay or subsequent repayment, and a new loan from a guarantee institution or a new guarantee of corporate bonds is not a simple refinancing, and co-investing investors who relied on the deceived trustee company and the company underwriting the remaining balance are also victims. The relevant aggravated punishment provision of the crime of transferring property abroad is not unconstitutional, and additional collection of the full amount of the property transferred abroad is a punitive disposition; however, where a remittance was made with the purpose of bringing the funds back immediately from the outset without any use abroad, there is no intent to transfer the property abroad, and even if the person denies the facts in court after voluntarily appearing and stating the facts truthfully, the effect of voluntary surrender is preserved.", "disposition": {"value": "reversal and self-adjudication", "quote": "Reverse each portion ordering additional collection. Collect additionally from Defendant 2 and Defendant 3 each, separately, KRW 1,786,520,214,609; from Defendant 1, jointly and severally with Defendant 2 and Defendant 3, KRW 1,562,438,950,295 of the above amount; and from Defendant 4, jointly and severally with Defendant 1, Defendant 2, and Defendant 3, KRW 1,472,455,206,174 of the above amount, each."}, "standard": {"value": "states requirements", "quote": "The offense of fraud is established where one deceives the other party and thereby receives delivery of property in consequence of that party's defective intent"}, "factors": ["Where a loan was obtained by deceiving a financial institution with financial statements prepared through fraudulent accounting", "Making a new loan only in form, without any actual receipt and payment of funds, to discharge existing debts", "Investors who subscribed to the public offering in reliance on the trustee company that had been deceived by the issuing company and fallen into error", "Where the remittance was made with the purpose of bringing the funds back immediately from the outset, without any use abroad being planned", "Where the person voluntarily appeared and stated the offense truthfully"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 94Do1075 decided March 10, 1995 (1995 Supreme Court Gazette (First Half), 1657)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the remittance was made with the purpose of bringing the funds back immediately, but the actual bringing back is delayed or part of the funds is used abroad, how is the intent to transfer the property abroad determined?", "batch": "b48", "translatedFrom": "ko"}
{"caseNo": "2002Do1256", "issue": "Does a transaction that includes fictitious purchase orders constitute market manipulation, how are the number of offenses for repeated acts determined, and on what standard is the profit thereby obtained assessed?", "answer": "Whether market manipulation is established is determined by comprehensively considering the nature of the securities, the motive and type of the transaction, price trends, and the circumstances of the transaction; fictitious purchase orders that are not executed are also included where they have the effect of moving prices and the character of inducing third parties to trade. Repeated acts that infringe the same protected legal interest under a single and continuous intent constitute a single comprehensive offense, and the profit is the net trading gain obtained by deducting the total purchase amount and transaction costs from the total sales amount.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed and the case is remanded to the collegiate panel of the Seoul District Court main court."}, "standard": {"value": "states requirements", "quote": "Even in the case of an offer to purchase or a buy order that does not result in the conclusion of a sales contract, so long as it has the effect of raising or lowering the price of securities and the character of inducing third parties to engage in trading of securities"}, "factors": ["The nature of the securities and the total number of securities issued", "The motives and types of trading transactions", "The price trend of such securities", "The previous and then-current trading circumstances", "Transaction costs such as the purchase commission, sales commission, and securities transaction tax (in the case of the Korea Exchange, including the rural special tax) incurred for that transaction"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 99Do2282 decided June 26, 2001 (Gong 2001Ha, 1781)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where normal transactions and market manipulation transactions are intermingled, how is the scope of relevant transactions to be included in the calculation of net trading gain determined?", "batch": "b48", "translatedFrom": "ko"}
{"caseNo": "2002Da28746", "issue": "What is the suspension of payment under the Corporate Reorganization Act, and can a person who became aware of an order suspending current-account transactions be regarded as having been aware of the suspension of payment?", "answer": "A suspension of payment is an outward manifestation by a debtor that, due to a lack of financial resources, the debtor is generally and continuously unable to pay obligations as they fall due. Absent special circumstances, a company that has received an order suspending current-account transactions and a person who has become aware of such an order are each recognized to be in a state of suspension of payment and to have awareness thereof, respectively.", "disposition": {"value": "partial reversal and remand", "quote": "In the judgment of the court below, the portion concerning the sum of KRW 844,274,120 that the defendant received as payment by virtue of the attachment and collection order is reversed, and the case in that part is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Generally, where a debtor, after issuing instruments, has received an order suspending current-account transactions from a bank or a clearinghouse, the debtor is, absent special circumstances, said to be in a state of suspension of payment;"}, "factors": ["Obligations as they fall due", "Lack of financial resources", "The time of receiving an order suspending current-account transactions", "A person who knew of the company's order suspending current-account transactions", "Special circumstances"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2000Da63554 decided June 29, 2001 (Supreme Court Gazette 2001, Second Half, 1727)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Specifically, what are the special circumstances that would negate the state of suspension of payment or awareness thereof despite the order suspending current-account transactions?", "batch": "b49", "translatedFrom": "ko"}
{"caseNo": "2002Geu121", "issue": "In a reorganization plan with a dissenting creditor class, what are the criteria for evaluating protection of rights, and what are the permissible standards for the reduction of rights and differential treatment between creditors and shareholders?", "answer": "The protection of the rights of a dissenting creditor class must, in principle, be based on liquidation value, and the relative priority between the reduction of the rights of creditors and that of shareholders must be determined by taking into account overall such matters as changes in equity and the scale of repayment. Equality means substantive equality, so subdivision and differentiation based on the nature of the rights are permissible, and setting repayment terms unfavorable to a claim against a guarantor also does not run contrary to the principle of equality.", "disposition": {"value": "dismissal", "quote": "The extraordinary appeal is dismissed."}, "standard": {"value": "totality of circumstances", "quote": "relative priority cannot be determined uniformly by simply comparing only the reduction ratio of reorganization claims and the reduction ratio in the number of shares"}, "factors": ["The reduction of capital and the ratio thereof", "The ratio of the actual dilution of equity resulting from the issuance of new shares", "The amount, from among the net assets to be held by the reorganization company, attributable to the equity of the existing shareholders", "The amount and ratio of the reorganization claims to be repaid", "In the case of a claim against a guarantor, the extent of repayment if the principal debtor has repaid all or part thereof or is likely to repay it"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 99Geu35 decided January 5, 2000 (Supreme Court Gazette, Vol. Sang (2000), 539)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must unfavorable repayment terms for a claim against a guarantor go before they become contrary to substantive equality?", "batch": "b49", "translatedFrom": "ko"}
{"caseNo": "2001Do606", "issue": "How are the purpose of inducing trading transactions and conspiracy in the offense of market manipulation recognized, and on what criteria are the fine concurrently imposed on the corporation and the gains obtained from the violation calculated?", "answer": "The purpose of inducing trading transactions is satisfied by awareness of the possibility alone and may be determined by comprehensively assessing circumstantial facts, and conspiracy is established by a meeting of minds for the realization of the crime and may be proved, together with intent, through circumstantial facts. The upper limit of the fine for the corporation is set on the basis of the gains obtained by the corporation or the losses avoided, and the gains are calculated to include, among others, the net trading profit after deduction of transaction costs and the valuation gains on shares held at the time the market manipulation ended.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "The degree of awareness of such purpose need not be an active desire or a definitive awareness, and awareness of the possibility is sufficient;"}, "factors": ["The nature of the securities and the total number of securities issued", "The economic rationality and fairness of the transaction", "circumstantial facts having considerable relevance to the intent", "the gains obtained by the corporation or the amount of loss avoided by reason of the representative's violation", "valuation gains on the shares subject to market manipulation that were held at the time the market manipulation ended"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2002Do1256 rendered June 14, 2002 (2002 Supreme Court Decision Collection, Lower Volume, 1741)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "As to the valuation gains on shares held at the time the market manipulation ended, specifically what price must be applied in the calculation?", "batch": "b49", "translatedFrom": "ko"}
{"caseNo": "2001Do4947", "issue": "In acts relating to unsound loans by financial institutions and market manipulation, how are breach of trust and conspiracy and joint principal offender established, and how are the number of offenses determined, and where only the prosecutor's appeal against the partial acquittal has merit, how far must the reversal extend?", "answer": "Making a loan while fully knowing that loss will occur, or making a loan without reasonable measures for recovery of the claim, constitutes an act of breach of trust; conspiracy as to market manipulation is established by a meeting of minds for the realization of the crime, and repeated unfair trading under a single and continuous intent and the same protected legal interest constitutes a single comprehensive offense. Even where only the prosecutor's appeal against the partial acquittal has merit, if the guilty portion stands in a concurrence-of-offenses relationship with the foregoing portion, both portions must be reversed together.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Where several acts falling under the same charge have been committed continuously over a certain period under a single and continuous intent, and the protected legal interest is also the same, each of these acts must be dealt with as a single comprehensive offense in their entirety; and"}, "factors": ["reasonable debt recovery measures", "The motives and types of trading transactions", "The meeting of minds to accomplish that crime", "A single and continuous intent", "Identity of the protected legal interest"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 99Do4923 decided March 14, 2000 (Gong 2000Sang, 1011)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What degree of temporal break or change of purpose between repeated market manipulation transactions negates a single and continuous intent?", "batch": "b49", "translatedFrom": "ko"}
{"caseNo": "2001Do3567", "issue": "In the offense of violating the Securities and Exchange Act through matched orders or wash sales, what content and degree of awareness does the purpose of causing another's judgment to err require, and how is it determined?", "answer": "The purpose of causing another's judgment to err is satisfied by awareness of the possibility and may coexist with other purposes, and actual misunderstanding or loss, or a separate purpose of inducing trading transactions or of obtaining unjust enrichment, is not required. If the motive and manner of the transactions, the trends in price and trading volume, and other circumstantial facts are comprehensively assessed, there is room to recognize that purpose as to the defendant in this case as well.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the Seoul District Court, main court."}, "standard": {"value": "totality of circumstances", "quote": "It may be determined by comprehensively considering circumstantial facts such as the economic rationality and fairness of the transaction."}, "factors": ["The nature of the securities and the total number of securities issued", "the motive and manner of the trading transactions (sequential orders for price increases or wash sales, the degree of market participation, continuous involvement in the closing price, etc.)", "trends in the price and trading volume of the security", "The circumstances of the transaction before and after", "The economic rationality and fairness of the transaction"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 99Do2282 decided June 26, 2001 (Gong 2001Ha, 1781)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What combination and strength of circumstantial facts is sufficient to recognize awareness of the possibility as to the purpose of causing another's judgment to err?", "batch": "b49", "translatedFrom": "ko"}
{"caseNo": "2001Do3531", "issue": "Where the amount of gain from breach of trust cannot be calculated, may the punishment be aggravated; does the punishment provision of the former Credit Unions Act satisfy the principle of clarity; and how is it determined whether loans in borrowed names and refinancing exceed the lending limit?", "answer": "Even where pecuniary loss is recognized, if its value cannot be specifically calculated, aggravated punishment on the basis of the amount of gain may not be imposed, and the relevant punishment provision of the former Credit Unions Act is not in violation of the principle of clarity. The lending limit is determined on the basis of the person to whom the loan proceeds are substantially attributable, and a formal refinancing without receipt or disbursement of funds does not constitute a loan exceeding the limit absent special circumstances.", "disposition": {"value": "partial reversal and remand", "quote": "The portions of the judgment of the court below concerning each of the crimes set forth in the second part of the findings as to Defendant 1, and concerning Defendant 2, Defendant 3, and Defendant 4, are each reversed, and this portion of the case is remanded to the Daejeon High Court."}, "standard": {"value": "states requirements", "quote": "Where the lending limit is exceeded when measured by the person to whom the loan proceeds are substantially attributable"}, "factors": ["although pecuniary loss may be recognized, its value cannot be specifically calculated,", "the legislative purpose of the punishment provision or its overall content and structure", "the person to whom the loan proceeds are substantially attributable", "making a new loan merely in form, without any receipt or disbursement of funds, in order to discharge an existing debt", "extension of the due date for repayment of an existing debt"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2001Do2189 decided June 29, 2001 (Gong 2001Ha, 1810)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even in the case of a formal refinancing without receipt or disbursement of funds, what special circumstances would recognize it as a loan exceeding the lending limit?", "batch": "b50", "translatedFrom": "ko"}
{"caseNo": "2001Do2196", "issue": "Does formal reinvestment of defrauded funds constitute a separate offense of fraud, and how are the habituality of habitual fraud and the scope of the effect of the filing of public prosecution determined?", "answer": "The amount of gain is the aggregate of the substantial gains obtained by the crime; where, in order to avoid returning the defrauded funds, only the form of reinvestment was taken without any actual transfer of funds, this does not constitute a separate offense of fraud, and habituality is determined by taking into consideration various circumstances such as prior convictions and the number of offenses. The effect of the filing of public prosecution for habitual fraud extends to the entire criminal fact recognized as identical up to the time of pronouncement of judgment in the court of fact, so re-prosecuting a portion thereof as an independent offense of fraud is not permitted.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "As to a habitual offender, the effect of the filing of public prosecution extends to the entire criminal fact recognized as identical to the criminal fact for which public prosecution was filed, and"}, "factors": ["the aggregate of the substantial gains obtained by reason of the criminal acts", "without any actual transfer of funds", "prior convictions for fraud as well as the number of offenses, the means and methods, and the motive", "the criminal fact recognized as identical to the criminal fact for which public prosecution was filed", "the time of pronouncement of judgment, which is the last point at which trial on the facts is possible"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2000Do3483 decided November 10, 2000 (Gong 2001Sang, 91)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where additional collateral or a waiver of rights accompanied the formal reinvestment process, does an offense of fraud arise as a separate infringement of a legal interest?", "batch": "b50", "translatedFrom": "ko"}
{"caseNo": "2001Da78898", "issue": "May repayment of principal and interest that is not subject to restriction or avoidance under the Composition Act be avoided under the Bankruptcy Act; how is the appropriateness of the act determined; and who must prove it?", "answer": "Preferential repayment of principal and interest may itself be subject to avoidance as an act performed in a period of crisis, and it is not excluded from avoidance under the Bankruptcy Act merely on the ground that it is not subject to restriction or avoidance under the Composition Act. However, where there are exceptional circumstances making the act socially necessary and appropriate or inevitable, such that general holders of bankruptcy claims must bear the disadvantage, it cannot be avoided, and appropriateness is determined by considering various circumstances, while any deficiency of the requirement of impropriety must be asserted and proved by the counterparty beneficiary.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "totality of circumstances", "quote": "It must be determined concretely in light of the principle of good faith and the idea of equity"}, "factors": ["The state of the bankrupt's property and business at the time of the act", "The bankrupt's subjective state of mind", "The source of the repayment funds", "The relationship between the bankrupt and the creditor", "Whether the creditor colluded with the bankrupt or exercised influence, such as coercing the bankrupt to make repayment"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "the opposing party", "quote": "The burden of proof rests on the counterparty, the beneficiary."}, "openQuestion": "What combination of concrete circumstances would recognize repayment of principal and interest as a socially necessary and appropriate act despite the inequality among creditors?", "batch": "b50", "translatedFrom": "ko"}
{"caseNo": "2001Da55222", "issue": "May an entrusted surety's right to reimbursement arising prior to payment be set off as an automatic claim; and where a joint and several suretyship, the original loan transaction for which predates the six-month period before the date of suspension of payments, is extended by refinancing, is it subject to avoidance of gratuitous acts?", "answer": "Since the right to claim discharge is attached to the entrusted surety's prior right to reimbursement as a right of defense, set-off using it as an automatic claim is not permitted. Refinancing without an actual transfer of funds is, absent special circumstances, an extension of the due date for repayment while maintaining the identity of the existing debt; accordingly, if the original loan transaction took place earlier than six months before the date of suspension of payments, that suretyship is not subject to avoidance of gratuitous acts.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Inasmuch as the right to claim discharge is attached as a right of defense, set-off using it as an automatic claim cannot be permitted."}, "factors": ["the result of depriving the counterparty of the opportunity to exercise its right of defense", "where the right to claim discharge is attached as a right of defense", "without any actual receipt of new funds", "where the existing debt continues to exist while maintaining its identity", "where the timing of the original loan transaction falls earlier than six months before the date of suspension of payments of the liquidation company"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 81Da595 decided May 25, 1982 (Gong 1982, 603)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What changes made in the refinancing process destroy the identity of the existing debt, so that the possibility of avoiding a new act of suretyship must be assessed?", "batch": "b50", "translatedFrom": "ko"}
{"caseNo": "2001Da55116", "issue": "Does the provision of security pursuant to an abstract (non-specific) agreement to provide security fall within the obligations of the bankrupt, and does a debt incurred in the procedure for providing that security fall within an exception to the prohibition of set-off?", "answer": "In order for a matter to fall within the obligations of the bankrupt, there must be a concrete obligation whose performance the creditor may claim; accordingly, the provision of security in this case, based on an agreement to the effect that security would be provided if necessary, does not qualify as such. Since the provision of security is avoided, a debt incurred in the procedure therefor does not fall within the exception to the prohibition of set-off even where it arises from a cause that arose before the creditor became aware of the suspension of payment or the filing of a bankruptcy petition.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "Application to the facts", "quote": "Since the provision of security cannot be regarded as falling within the obligations of the bankrupt and is avoided,"}, "factors": ["Where a concrete obligation is borne and the creditor holds the right to claim performance of that concrete obligation", "Where deemed necessary for preservation of claims, security or additional security approved by the creditor upon demand would be provided", "A certain deposit would be provided as security", "Something carried out as part of the procedure for providing that security", "Where the cause arose before the bankruptcy claim holders became aware of the suspension of payment or the filing of a bankruptcy petition"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2000Da26067 pronounced December 8, 2000 (Supreme Court Gazette (Upper), 2001, 257)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must the subject matter, amount, and time of performance under an agreement to provide security be specified in order for it to be recognized as a concrete obligation whose performance the creditor may claim?", "batch": "b50", "translatedFrom": "ko"}
{"caseNo": "2001Da46761", "issue": "Is an act by a financial institution, exercising the right to complete a preliminary agreement and the right of selection of claims and notifying the assignment of claims on behalf of the company under a security assignment agreement for collective claims of the preliminary-agreement type, subject to avoidance as an act of preference under the Corporate Reorganization Act?", "answer": "Such an act is not subject to avoidance as an act of preference. An act of a creditor or a third party becomes subject to avoidance only exceptionally, where, by reason of collusion with the company or other special circumstances, it can be identified with an act of the company.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and this case is remanded to the Seoul High Court."}, "standard": {"value": "Application to the facts", "quote": "A case holding that the act was not subject to avoidance as an act of preference (preferential act avoidance) under Article 78, paragraph (1), subparagraph 2 of the Corporate Reorganization Act."}, "factors": ["Security assignment of collective claims of the preliminary-agreement type", "Special circumstances such as collusion with the company prior to reorganization", "Where an act of a creditor or a third party can be identified with an act of the company", "Having notified the third-party obligor of the fact of the assignment of claims on behalf of the company prior to reorganization"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 99Da73159 decided July 9, 2002"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What is included in the special circumstances, other than collusion, that would permit the exercise of the creditor's rights to be identified with an act of the company?", "batch": "b51", "translatedFrom": "ko"}
{"caseNo": "2001Da39473", "issue": "Is a special clause granting a right of set-off in respect of subordinated borrowings void merely for violating the financial soundness guidelines, and can the prejudicial effect be assessed by isolating that clause alone in transactions carried out as an integrated whole?", "answer": "A special clause granting a right of set-off is not rendered void in private law merely by reason of violating the guidelines. The prejudicial effect of acts carried out as an integrated whole must be assessed in light of the impact that the whole has on bankruptcy claim holders; accordingly, if there is no disadvantage as a whole, prejudicial effect cannot be recognized by isolating an individual agreement alone.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "The prejudicial effect, as a requirement for the exercise of the right of avoidance under bankruptcy law in respect of acts carried out as an integrated whole, must be assessed in light of the impact that the act as a whole has on bankruptcy claim holders"}, "factors": ["Even assuming that the special clause granting a right of set-off violated the above provision,", "Acts carried out as an integrated whole", "The impact that the act as a whole has on bankruptcy claim holders", "If, upon assessment of the whole taken together, it does not cause disadvantage to bankruptcy claim holders,"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What are the specific criteria for treating a plurality of agreements as acts carried out as an integrated whole for purposes of assessing prejudicial effect?", "batch": "b51", "translatedFrom": "ko"}
{"caseNo": "2001Da36580", "issue": "Is a management control premium obtained by transferring management control together with the shares included in the short-swing trading profits subject to disgorgement, and, in addition to the exception grounds enumerated in the Enforcement Decree, are transactions of a type in which there is no possibility whatsoever of using inside information excluded from liability to disgorge?", "answer": "A management control premium obtained by transferring management control together with shares within six months after acquiring the shares is also included in the profits subject to disgorgement. However, for transactions of a type in which, objectively viewed, there was from the outset no possibility whatsoever of using inside information, the disgorgement provision does not apply, even if they do not fall within the exception grounds enumerated in the Enforcement Decree.", "disposition": {"value": "reversal and self-adjudication", "quote": "Reverse the portion of the judgment in which the defendant lost, and dismiss the plaintiff's appeal corresponding to that portion."}, "standard": {"value": "states requirements", "quote": "Viewed objectively, it is proper to construe that Article 188, paragraph (2) of the same Act does not apply to transactions of a type in which there was from the outset no possibility whatsoever of using inside information."}, "factors": ["Since the transfer price is paid for the entire controlling shares and is plainly the consideration for the shares themselves,", "The legislative purpose of the short-swing trading profit disgorgement system", "The nature of the grounds for exception prescribed in Article 83-6 of the Enforcement Decree of the same Act", "The purport of the guarantee of property rights prescribed in Article 23 of the Constitution", "Transactions of a type in which there was from the outset no possibility whatsoever of using inside information"], "precedent": {"value": "follows existing precedent", "quote": "Constitutional Court Full Bench Decision 99Hun-Ba105, 2001Hun-Ba48 decided December 18, 2002 (Constitutional Court Gazette 76, 26)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specific types of transactions fall within the category of those in which, objectively viewed, there was from the outset no possibility whatsoever of using inside information?", "batch": "b51", "translatedFrom": "ko"}
{"caseNo": "2000Do90", "issue": "Can a second recipient of undisclosed inside information, who received and used the information on another occasion after the first receipt, be punished under the Securities and Exchange Act as a direct violator or as an accomplice of the first recipient of the information?", "answer": "The provision in question does not directly punish the act of use of the information by the second recipient. The involvement of the second recipient is an act indispensable and naturally expected in the establishment of the crime of the first recipient; accordingly, in the absence of a provision punishing it, the second recipient cannot be punished as an accomplice even if the conduct constitutes ordinary conspiracy, instigation, or aiding and abetting.", "disposition": {"value": "reversal and remand", "quote": "Reverse the judgment of the court below, and remand the case to the collegiate panel of the Seoul District Court, main court."}, "standard": {"value": "states requirements", "quote": "In the absence of a provision punishing such involvement of the second recipient, which is indispensable to the establishment of the crime,"}, "factors": ["A second recipient who received the undisclosed inside information again on an occasion different from the first receipt", "The existence of the second recipient is necessarily required and", "Where the second recipient, in concert of intent with the first recipient,", "In the absence of a provision punishing it,"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 84Do2747 decided March 12, 1985 (1985 Supreme Court Gazette 580)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Is the same conclusion of non-punishability applied even where a subsequent recipient actively participated from the stage of the first receipt of the information?", "batch": "b51", "translatedFrom": "ko"}
{"caseNo": "2000Do4444", "issue": "Does an act of a representative director, who, after publishing false financial information and an uncertain business outlook so that the stock price rose, sold the controlling shares and maintained his shareholding ratio through convertible bonds acquired in advance, constitute a deceptive unfair trading?", "answer": "An objective determination must be made by comprehensively considering the actor's position, the company's management status and the trend of its stock price, and the circumstances before and after the act. The acts of the representative director set forth herein constitute a deceptive unfair trading under the Securities and Exchange Act.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "totality of circumstances", "quote": "A determination must be made by objectively based criteria, comprehensively considering the actor's position, the issuing company's management status and the trend of its stock price, and all the circumstances before and after the act."}, "factors": ["The status of the actor", "The management condition of the issuing company and the trend of its stock price", "All circumstances before and after the act", "Publishing an uncertain business outlook as though it had been finalized or would soon be commenced", "Where he converted those convertible bonds into shares and maintained his shareholding ratio in the company,"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must the uncertainty of the business outlook be disclosed so that the publication can avoid being evaluated as the dissemination of false facts or a representation inducing misunderstanding?", "batch": "b51", "translatedFrom": "ko"}
{"caseNo": "2000Do3483", "issue": "How are the existence of a conspiracy and of habitual fraud and the amount of gain determined, and does a nominal reinvestment made to avoid returning the defrauded money constitute a separate offense of fraud?", "answer": "A conspiracy is established by a meeting of minds for the commission of a crime; habituality is determined by the number of offenses, the means and methods, and other circumstances; and the amount of gain means the amount of the actual gain. Where, in order to avoid returning the defrauded money, only the form of reinvestment was adopted without any actual transfer of funds, no new legal interest is infringed, and thus no separate offense of fraud is established.", "disposition": {"value": "partial reversal and remand", "quote": "Reverse the portion of the judgment of the court below concerning the defendants, and remand this portion of the case to the Busan High Court."}, "standard": {"value": "states requirements", "quote": "Where there is a delivery of property by deception, that itself constitutes an infringement of the victim's property, and the offense of fraud is thereby immediately established,"}, "factors": ["The meeting of minds to accomplish that crime", "All the circumstances such as the number of offenses, the means and methods, and the motive", "The actual amount of gain", "The form of newly investing the existing principal and interest of borrowings without any actual transfer of funds", "Since it does not infringe any new legal interest,"], "precedent": {"value": "follows existing precedent", "quote": "[2][4][5] Supreme Court Decision 2000Do1899 decided July 7, 2000 (2000 Supreme Court Gazette 1911)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Can the establishment of a separate offense of fraud be denied even where the victim relinquished new proprietary rights in the course of the reinvestment?", "batch": "b52", "translatedFrom": "ko"}
{"caseNo": "2000Do3350", "issue": "Under the former Securities and Exchange Act, may officers and employees who sell shares using undisclosed information on behalf of a corporation also be punished, and even if the prosecutor sought application of the new Act, may the former Act be applied without amending the indictment?", "answer": "Officers and employees who, in connection with the business of a corporation, use undisclosed information to sell the corporation's own shares are also punished under the former Act. If the crime as found by the court is identical to the alleged facts of the indictment and there is no difference in the severity of the punishment between the new and former Acts, so that there is no concern of substantial disadvantage to the exercise of the right of defense, the former Act, being the Act in force at the time of the act, may be applied without amending the indictment.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Where the crime as found by the court is identical to the alleged facts of the indictment without any difference,"}, "factors": ["it placed no restriction whatsoever as to whether it was done for the benefit of another and on another's account", "in cases where the corporation's own shares are sold in connection with the business of the corporation using undisclosed information,", "where the crime as found by the court is identical to the alleged facts of the indictment without any difference,", "if there is no difference in the severity of the punishment for that offense,", "and there is no concern of causing substantial disadvantage to the defendant's exercise of the right of defense,"], "precedent": {"value": "follows existing precedent", "quote": "[2] Supreme Court Decision 75Do363 decided November 23, 1976 (Supreme Court Bulletin 1977, 9637), Supreme Court Decision 92Do954 decided June 23, 1992 (Supreme Court Bulletin 1992, 2321)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where the severity of the punishment under the new and former Acts is the same, may the former Act be applied without amending the indictment where a substantive difference arises in the defendant's defense?", "batch": "b52", "translatedFrom": "ko"}
{"caseNo": "2000Do28", "issue": "In a crime of occupational breach of trust arising from a non-performing loan, over what scope are the amount of loss and the benefit acquired by a third party calculated, and by what unit of crime is the amount of gain, which serves as the standard for aggravated punishment, calculated?", "answer": "The amount of loss for a non-performing loan constituting a crime of occupational breach of trust, and the benefit acquired by a third party, are the entire loan amount where there is a risk of loss. The amount of gain, which serves as the standard for aggravated punishment, means the amount of gain from a simple single offense or the aggregate amount of gain from a single comprehensive offense.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "the entire loan amount for which there is a concern that the exercise of property rights may become impossible or a risk of loss may arise must be regarded as the amount of loss,"}, "factors": ["Where a crime of occupational breach of trust arising from a non-performing loan is established", "a concern that the exercise of property rights may become impossible or a risk of loss may arise", "where a third party has acquired it", "the amount of gain from a simple single offense", "the aggregate amount of gain in cases where a single comprehensive offense is established"], "precedent": {"value": "follows existing precedent", "quote": "[1] Supreme Court Decision 88Do1247 pronounced April 11, 1989 (Official Gazette 1989, 781), Supreme Court Decision 95Do1043 pronounced July 12, 1996 (Official Gazette 1996 Ha, 2561)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To recognize that there is a risk of loss with respect to the loan amount, as of what point in time must materials be assessed regarding the borrower's ability to repay and the status of collateral?", "batch": "b52", "translatedFrom": "ko"}
{"caseNo": "2000Do1899", "issue": "By what criteria are the existence of conspiracy and criminal intent recognized, the defrauded amount and the amount of gain per victim calculated, and the relationship in the number of offenses between violation of the prohibition on multi-level monetary transactions and the offense of fraud determined?", "answer": "Conspiracy is established by the conjunction of intentions for the commission of a crime and requires strict proof; where criminal intent is denied, it may be proved by relevant circumstantial facts, and the amount defrauded is the entirety of the property delivered without deduction of partial consideration. The amount of gain for the offense of fraud as to each victim cannot be aggregated on the ground that they are concurrent offenses, and the offense of fraud and the violation of the prohibition on multi-level monetary transactions stand in a relationship of substantive concurrence.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Whether there is in substance one offense or several offenses must be determined by examining the question from the perspective of evaluation based on constituent elements and protected legal interests."}, "factors": ["The conjunction of intentions to commit the crime", "circumstantial facts having considerable relevance to the intent", "The entirety of the property delivered", "Because the legal interest harmed of each victim is independent", "Evaluation based on constituent elements and protected legal interests"], "precedent": {"value": "follows existing precedent", "quote": "[4] Supreme Court Decision 84Do782 decided June 26, 1984 (Supreme Court Gazette 1984, 1381), Supreme Court Decision 97Do2956 decided March 24, 1998 (Supreme Court Gazette 1998Sang, 1248)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What combination of circumstantial facts is sufficient to recognize the conspiracy and criminal intent of a defendant who also denies the fact of direct participation in the act of execution?", "batch": "b52", "translatedFrom": "ko"}
{"caseNo": "2000Do137", "issue": "Where a person, by deceiving another, causes a maximum amount mortgage to be established in favor of a third party over real property owned by that other, what is the content of the pecuniary benefit acquired, and how is the amount of gain calculated?", "answer": "The benefit acquired is the benefit of being able to use real property owned by another as security for one's own transactions, and the amount of gain is, in principle, equivalent to the maximum claim amount within the market value of the real property. If there is a prior-ranking maximum amount mortgage, the balance remaining after deducting that maximum claim amount from the market value becomes the limit; however, where there are special circumstances in which the subsequent-ranking mortgagee may be regarded as having recognized the security value of the prior-ranking mortgage only to the extent of the actual secured claim amount, the actual secured claim amount is deducted from the market value at the time of establishment.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Where a person acquiring a subsequent-ranking maximum amount mortgage may be regarded, in light of special circumstances, as having recognized that the security value of the prior-ranking maximum amount mortgage is grasped only to the extent of the actual secured claim amount"}, "factors": ["The maximum claim amount within the market value of that real property", "The maximum claim amount of the prior-ranking maximum amount mortgage", "Special circumstances in which the security value of the prior-ranking maximum amount mortgage may be regarded as having been recognized only to the extent of the actual secured claim amount", "The market value of that real property at the time the maximum amount mortgage was established"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 84Do119 decided April 10, 1984 (Gongbo 1984, 866), Supreme Court Decision 96Do384 decided March 22, 1996"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "By what specific facts can the special circumstances in which the subsequent-ranking mortgagee recognized the security value of the prior-ranking mortgage only to the extent of the actual secured claim amount be established?", "batch": "b53", "translatedFrom": "ko"}
{"caseNo": "2000Da67075", "issue": "Does an act constitute a gratuitous act under the Company Reorganization Act where a reorganization company, having provided a joint suretyship obligation, received security from the principal debtor without monetary consideration while obtaining a temporary deferral of the time for performance of the joint suretyship obligation?", "answer": "The acts of transferring golf club memberships without monetary consideration and of creating maximum amount mortgages over real property constitute gratuitous acts. The fact that a joint suretyship obligation already existed, or that the time for performance of that obligation was temporarily deferred by the provision of security, does not alter this conclusion.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "Application to the facts", "quote": "The conclusion is no different even though the reorganization company was bearing a joint suretyship obligation for the principal debtor at the time the security was provided, or even though, by the provision of security, the time for performance of the principal debtor's loan obligation and of the reorganization company's joint suretyship obligation was temporarily deferred."}, "factors": ["having received no monetary consideration whatsoever from the principal debtor,", "within 6 months before the date of dishonor,", "transferred the golf club memberships owned by that person, and", "provided the act of creating maximum amount mortgages in favor of the creditor over each of the real properties owned by that person,", "even though the time for performance of the reorganization company's joint suretyship obligation was also temporarily deferred,"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Would the acts still constitute gratuitous acts where a long-term deferral of the period for performance or a partial exemption from the obligation was received as consideration for the provision of security?", "batch": "b53", "translatedFrom": "ko"}
{"caseNo": "2000Da50275", "issue": "Where a pledgee disposes of securities and recovers the claim, does that act fall within the scope of the right of avoidance under the Corporate Reorganization Act, and may a claim for repayment of value be made in lieu of restoration of those securities?", "answer": "An act of disposing of the subject matter of a pledge to obtain satisfaction of the claim is substantially the same as an act of execution and is therefore included within the scope of the right of avoidance. In this Case, the judgment of the court below, which held that a claim for repayment of value could be made in lieu of restoration of the securities, was affirmed.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Where the subject matter of a pledge is disposed of to another to obtain satisfaction of the claim, that too may be regarded, in substance, as identical to an act of execution and is therefore included among the acts subject to avoidance."}, "factors": ["A secured creditor cannot individually carry out an act of enforcing the security interest,", "as a reorganization security right holder, only the exercise of rights within the reorganization proceeding is recognized,", "and outside the reorganization proceeding the holder cannot receive repayment or otherwise perform an act extinguishing the claim,", "the purport of the provision that the right of avoidance may be exercised even where the act to be avoided is based on an act of execution", "may be regarded, in substance, as identical to an act of execution, and therefore"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "By reference to the value as of what point in time is the amount of repayment in lieu of restoration of the securities calculated?", "batch": "b53", "translatedFrom": "ko"}
{"caseNo": "2000Da23440", "issue": "Does the one-year extinctive prescription of the right to claim damages under the Securities and Exchange Act run from the time when the fact that the violating act occurred became known, or from the time of the pronouncement or finality of a guilty criminal judgment?", "answer": "The one-year extinctive prescription runs from the time when the holder of the claim for damages becomes aware of the fact that the violating act occurred. It does not run from the time when a guilty criminal judgment against the violator is pronounced or becomes final.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "The one-year extinctive prescription must be deemed to commence from the time when the holder of the claim for damages becomes aware of the fact that the violating act occurred,"}, "factors": ["The time when the holder of the claim for damages becomes aware of the fact that the violating act occurred", "The time when a guilty criminal judgment against the violator is pronounced or becomes final"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what degree of specific facts must the holder of the claim for damages be aware in order to be recognized as having become aware of the fact that the violating act occurred?", "batch": "b53", "translatedFrom": "ko"}
{"caseNo": "2011Du2361", "issue": "Can statement content other than an individual's personal identifying information recorded in the records of a decision not to prosecute also become information subject to non-disclosure on the ground of a risk of infringement of privacy?", "answer": "Information subject to non-disclosure includes not only personally identifiable information but also information whose disclosure would reveal an individual's intimate secrets and the like, thereby creating a risk of impeding the individual's inner life or free privacy. Accordingly, statement content other than personal identifying information also becomes subject to non-disclosure if a risk of infringing the secrecy or freedom of privacy is recognized.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Where a risk of infringing an individual's secrecy or freedom of privacy is recognized, the information falls under the information subject to non-disclosure provided in the main text of Article 9 (1), subparagraph 6 of the Official Information Disclosure Act."}, "factors": ["The history of amendment, the content, and the purport", "The content of the secrecy and freedom of privacy guaranteed under the Constitution", "An individual's intimate secrets and the like would become known, and", "Information that creates a risk of being unable to lead a free private life"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where information that may be disclosed and information raising a risk of infringement of privacy are intermingled in the statement content, to what scope must they be separated and disclosed?", "batch": "b54", "translatedFrom": "ko"}
{"caseNo": "2012Do3840", "issue": "How are the subject of the offense of breach of trust and the act in breach of duty determined, and how is the amount of gain, the standard for aggravated punishment, calculated?", "answer": "Where a person who, on the basis of a fiduciary relationship, handles the property management affairs of another person betrays the expected duty, the subject of the offense of breach of trust and the act in breach of duty are recognized. Because the amount of gain for aggravated punishment must be calculated strictly and carefully, the amount of loss and the amount of gain cannot be recognized solely by the arithmetic mean of the total sale prices, disregarding the circumstances of negotiation for each parcel of land and the like.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "The meanings of 'a person who handles the affairs of another person' and 'an act in breach of duty' among the constituent elements of the offense of breach of trust"}, "factors": ["A person who handles the affairs of another person", "An act in breach of duty", "The amount of property gain"], "precedent": {"value": "follows existing precedent", "quote": "See, e.g., Supreme Court en banc judgment 2005Do7288 decided April 19, 2007"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "If the individual transaction conditions and circumstances of negotiation of the clan land are reflected, what specifically is the amount of gain arising from the defendant's act of breach of trust?", "batch": "c01", "translatedFrom": "ko"}
{"caseNo": "2012Do2623", "issue": "How is the amount of loss of the offense of breach of trust arising from the purchase of shares calculated, and does an error in the calculation of the amount affect a judgment imposing aggravated punishment?", "answer": "Absent special circumstances, the amount of loss is the difference between the actual purchase price and the appropriate value; where new shares of a company whose substantive value is zero are subscribed for, the entire subscription price is the amount of loss; and unlisted shares are appraised at normal transaction prices or by reasonable appraisal methods. Even if the calculation of the amount is corrected, if the case falls within the same aggravated punishment range, the error does not affect the result of the judgment applying the relevant statutory provision.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "The method of calculating the amount of loss in the offense of breach of trust relating to the purchase of shares"}, "factors": ["A company whose shares have substantive value of zero", "A case in which new shares are subscribed for at par value", "The appropriate value of the shares", "A case in which the correct amount also falls under each subparagraph of Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes"], "precedent": {"value": "follows existing precedent", "quote": "See, e.g., Supreme Court Decision 2005Do856 decided April 29, 2005; Supreme Court Decision 2008Do11036 decided October 29, 2009"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where no normal transaction cases exist for unlisted shares and the results differ when several reasonable appraisal methods are applied, which appraised value should be adopted?", "batch": "c01", "translatedFrom": "ko"}
{"caseNo": "2011Do14247", "issue": "Do subsequent return of embezzled funds or repayment of a loan obtained by deception and the like affect the establishment of the crime and the amount, and what is the scope of the profit subject to additional collection arising from the use of undisclosed information?", "answer": "An intention to return after the fact or restitution does not negate the intent to unlawfully benefit in embezzlement, nor does it reduce the amount embezzled; and a loan obtained through deception by means of window dressing gives rise to the offense of fraud notwithstanding the capacity to repay, the provision of collateral, or subsequent repayment. The unlawful proceeds arising from the use of undisclosed information are profits having causation with the risk generated by the violating act, or losses avoided; and the fact that a profit already vested was used for debt repayment and the like is not a ground for deducting it from the amount of additional collection.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Whether the offense of fraud is established where a financial institution is deceived by financial statements prepared through window dressing and thereby a loan is obtained (affirmative)"}, "factors": ["Intention and capacity to repay", "Collateral was provided, or", "The victim sustained no property loss and the loan was repaid after the fact", "The profit obtained or the loss avoided by the violating act"], "precedent": {"value": "follows existing precedent", "quote": "See, e.g., Supreme Court Decision 2010Do3399 decided May 27, 2010"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "As to unlawful profits for which causation with the violating act is recognized, what specific circumstances would allow the court, in its discretion, not to order additional collection?", "batch": "c01", "translatedFrom": "ko"}
{"caseNo": "2025Do6356", "issue": "Where a public official commits breach of trust in the course of duties by improperly changing the specifications of goods so that the contract amount increases, can the entire increase be regarded as the gain of the counterparty to the contract?", "answer": "Only the remainder of the increase in the contract amount, after deducting the cost increase ordinarily to be expected from the specification change, is the gain of the counterparty to the contract. If the amount of gain cannot be specifically calculated, Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes cannot be applied.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Busan High Court."}, "standard": {"value": "states requirements", "quote": "The amount remaining after deducting, from the contract amount increased beyond the legitimate contract amount due to an improper change in the specifications of goods and the like, the cost increase ordinarily to be expected therefrom"}, "factors": ["A decrease in the overall asset value of the principal", "The specifications or details of the goods", "The contract amount increased beyond the legitimate contract amount", "The cost increase ordinarily to be expected"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court Decision 2009Do13682 decided August 19, 2010"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "If the ordinary cost increase arising from the raising of the height of the movable weir is deducted, is the gain of the counterparty to the contract recognized as being 500 million won or more?", "batch": "c01", "translatedFrom": "ko"}
{"caseNo": "2009Do675", "issue": "How are the requirements for the establishment of repeated acts of stock market manipulation and the number of offenses, the fine imposed on an accessory, and the profit obtained by the violating act determined?", "answer": "Repeated market manipulation pursuant to a single and continuous criminal intent constitutes a single comprehensive offense; the purpose of causing a misapprehension or inducing transactions is satisfied by awareness of the possibility, and an actual change in market price is not required. A fine may also be imposed cumulatively on an accessory, but a mitigated punishment for accessoryship must be applied; and the profit obtained by the violating act is the net trading profit, calculated by deducting the total purchase amount and transaction costs from the total sale amount.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "The meaning of 'the purpose of causing a misapprehension that active trading is taking place or otherwise causing another person to make an erroneous judgment' as a subjective constituent element of the offense of violating Article 188-4 (1) of the Securities and Exchange Act"}, "factors": ["The credibility of the confession", "The purpose of stock market manipulation", "Acts of false purchase orders", "Acts of matched orders", "The purpose of inducing trading transactions"], "precedent": {"value": "follows existing precedent", "quote": "See, e.g., Supreme Court Decision 2004Do1164 decided November 10, 2005; Supreme Court Decision 2003Do 4320 decided May 11, 2006; Supreme Court Decision 2007Do7471 decided November 29, 2007"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where normal transactions independent of the market manipulation transactions are intermingled, how is the scope of transactions to be included in the calculation of net trading profit distinguished?", "batch": "c01", "translatedFrom": "ko"}
{"caseNo": "2015Do10648", "issue": "Can e-mails seized by sending only a copy of the warrant by fax, without presenting the original or delivering a seizure record and a list of seized articles, be used as evidence of guilt?", "answer": "Such a seizure constitutes unlawful collection infringing the substantive content of the principle of due process, and the e-mails lack admissibility of evidence. This case also does not fall within the exceptional case in which admissibility of evidence is recognized.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "Application to the facts", "quote": "A case affirming the lower court's determination that e-mails seized in the above manner lack admissibility of evidence"}, "factors": ["Merely transmitting a copy of the warrant by fax and", "Presenting the original of the warrant or", "Preparing a seizure record and a list of seized articles", "Having seized the defendant's e-mails and then submitting them as evidence"], "precedent": {"value": "follows existing precedent", "quote": "See, e.g., Supreme Court en banc judgment 2007Do3061 decided November 15, 2007"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where there is a violation of seizure procedures such as the non-presentation of the original of the warrant, what specific circumstances are required for admissibility of evidence to be exceptionally recognized?", "batch": "c01", "translatedFrom": "ko"}
{"caseNo": "2013Da76253", "issue": "Can an outside director who faces a claim for damages based on false statements in a business report be exempted from liability merely on the ground that he engaged in no substantive activities?", "answer": "To be exempted, one must prove that he conducted the investigation reasonably expected in light of his position, that he had reasonable grounds to believe that there were no false statements, and that he in fact so believed. The circumstance that he engaged in no substantive activities, such as attendance at work or participation in board meetings, does not serve as grounds that he exercised due care or that, even if he had exercised such care, he could not have known of the false statements.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed insofar as it concerns Defendant 2, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "The meaning of proving, as a requirement for exemption of the person liable for compensation, 'that he could not have known of it despite having exercised due care' as provided in the proviso to Article 162 (1) of the Financial Investment Services and Capital Markets Act"}, "factors": ["that he could not have known of it despite having exercised due care", "the fact that there were no substantive activities as an outside director", "that he could not have known of the false statements even if he had exercised due care"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court Decision 2001Da9311, 9328 decided September 24, 2002 and Supreme Court Decision 2006Da81981 decided September 21, 2007, etc."}, "burden": {"value": "the opposing party", "quote": "In order for a director who is the person liable for compensation to be exempted from liability, he must prove that he could not have known of it despite having exercised due care, or"}, "openQuestion": "If, on remand, other grounds for exemption or the absence of causation between the damage and the false statements is proved, how will the scope of the outside director's ultimate liability for compensation be determined?", "batch": "c01", "translatedFrom": "ko"}
{"caseNo": "2010Do12928", "issue": "In the offense of fraud under the Criminal Act, do actual loss or a specific amount of gain govern the establishment of the crime, and how is the amount of gain for aggravated punishment calculated?", "answer": "Since the offense of fraud under the Criminal Act is established by delivery of property or acquisition of a pecuniary benefit resulting from deception, actual loss or a specific amount of gain does not govern its establishment. When applying aggravated punishment, the benefit from the use of a security interest is calculated within a limit that takes into account the market value of the real property and the burden of prior-ranking security interests, and the obtaining by fraud of the real property itself is calculated at the actual exchange value obtained by deducting, from the market value, obligations such as secured debts.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Whether actual loss on the part of the victim is required for the offense of fraud to be established (negative) and whether the value of property or pecuniary benefit affects the establishment of the offense of fraud (negative)"}, "factors": ["actual loss on the part of the victim", "the value of property or pecuniary benefit", "that considerable consideration was paid", "an amount corresponding to the market value of the real property, etc.", "the amount of the burden arising from a maximum amount mortgage, etc."], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court en banc Judgment 2005Do7288 decided April 19, 2007."}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "In this case, if the security burden is deducted on the premise that aggravated punishment applies, what is the specific amount of gain for each act of fraud?", "batch": "c01", "translatedFrom": "ko"}
{"caseNo": "94Do2032", "issue": "On what basis is the amount of gain from a fraudulent offense involving the obtaining by fraud of securities calculated?", "answer": "The face value of the securities obtained by fraud is calculated as the amount of gain.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "The amount of gain from a fraudulent offense involving the obtaining by fraud of securities is the face value of such securities."}, "factors": ["a fraudulent offense involving the obtaining by fraud of securities", "the face value of such securities"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 92Do1983 decided October 23, 1992"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where the securities obtained by fraud are void and rights cannot be exercised thereunder, is the entire face value calculated as the amount of gain?", "batch": "c02", "translatedFrom": "ko"}
{"caseNo": "2025Do1549", "issue": "Where a third party voluntarily submits electronic information copied onto a storage medium under that person's control, must the right to participate also be guaranteed to the person having authority to manage and dispose of the original electronic information?", "answer": "There is no need to recognize a right to participate in favor of the person having authority to manage and dispose of the original electronic information merely because the content is identical. However, upon comprehensively considering the circumstances of the submission, the state of control and management, the function of the right to participate, etc., it may be decided otherwise where there are special circumstances making it manifestly unfair to afford the opportunity to participate only to the submitter.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul Southern District Court."}, "standard": {"value": "totality of circumstances", "quote": "Whether the person having authority to manage and dispose of the original electronic information should be evaluated as the person actually subjected to seizure and accorded a right to participate (in principle, negative)"}, "factors": ["where it is copied with identical content and voluntarily submitted", "the person who voluntarily submits the copied electronic information", "the person having authority to manage and dispose of the original electronic information"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2023Do3626 decided December 24, 2024"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even absent confirmation of a purpose to exclude the participation of the person having authority over the original, what circumstances make it manifestly unfair to afford the opportunity to participate only to the submitter?", "batch": "c02", "translatedFrom": "ko"}
{"caseNo": "2024Do4234", "issue": "Where property obtained through the offense of infringement of information and communications networks and the offense of obstruction of business simultaneously falls under the property damaged by the crime constituting the offense of fraud, can it not be subjected to additional collection?", "answer": "Property arising from the offense of infringement of information and communications networks and the offense of obstruction of business, and property obtained through disposition thereof, are subject to additional collection. They are not excluded from the objects of additional collection merely because they simultaneously fall under the property damaged by the crime of fraud.", "disposition": {"value": "reversal and remand", "quote": "Reverses the judgment of the court below, and remands the case to the Gwangju High Court."}, "standard": {"value": "states requirements", "quote": "Whether the same applies even where the property falls under 'property damaged by crime' (affirmative)"}, "factors": ["damage to another person's information", "property arising from the offense of obstruction of business", "property obtained through disposition of such property", "property acquired from the victim"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2014Do13446 decided January 29, 2015"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "As to the game items and sales proceeds in this case, specifically how much must be subjected to additional collection?", "batch": "c02", "translatedFrom": "ko"}
{"caseNo": "2024Do1881", "issue": "As to videos of other offenses found in a mobile phone seized on suspicion of illegal filming, can objective relevance to the suspected facts stated in the warrant be recognized?", "answer": "The mere fact that they are offenses of the same or similar type is insufficient; however, upon examining the habitual nature of the offense or sexual propensity, the form of the evidence, the circumstances of the investigation, etc., a specific connection can be recognized as indirect evidence or circumstantial evidence. Each of the videos in this case has such relevance, and the additional videos were seized pursuant to a separately issued warrant, and thus their admissibility of evidence is recognized.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed insofar as it concerns the not guilty portion, and this part of the case is remanded to the Seoul Western District Court."}, "standard": {"value": "totality of circumstances", "quote": "where, in light of the nature of the crime, the habitual nature of the relevant offense is suspected, or it is suspected that the act was committed as part of a series of offenses arising from the manifestation of sexual preference or propensity, and"}, "factors": ["the habitual nature of the relevant offense", "the manifestation of sexual preference or propensity", "the likelihood that direct evidence of the offense remains in the mobile phone in the form of image files or video files", "indirect evidence or circumstantial evidence found in electronic information of the same type"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court en banc Judgment 2016Do348 decided November 18, 2021"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "As to videos whose time and place of filming differ greatly, what additional circumstances are required for objective relevance to the suspected facts stated in the warrant to be recognized?", "batch": "c02", "translatedFrom": "ko"}
{"caseNo": "2024Da272590", "issue": "Where a creditor revocation action filed after a declaration of bankruptcy becomes lawful upon a decision revoking bankruptcy becoming final during the lawsuit, does the running of the exclusion period also stop during the bankruptcy proceedings?", "answer": "Where a decision revoking bankruptcy becomes final during the lawsuit, the restriction on filing an action arising from the declaration of bankruptcy is removed, and the same applies even where the bankruptcy trustee's right of avoidance has already been extinguished. However, the exclusion period for the creditor's right of revocation is neither interrupted nor suspended even during bankruptcy proceedings; accordingly, the date on which the cause of revocation became known must be examined.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul Southern District Court."}, "standard": {"value": "states requirements", "quote": "Whether interruption or suspension of the exclusion period is recognized (negative)"}, "factors": ["where a decision revoking bankruptcy against the debtor has become final", "after the bankruptcy trustee's right of avoidance has been extinguished by lapse of the exclusion period", "the legal character of the period for exercising the creditor's right of revocation (= exclusion period)", "where an action for revocation by a creditor cannot be filed due to the declaration of bankruptcy against the debtor"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2005Da183 decided April 29, 2005"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "On what date did the plaintiff actually become aware of the cause of revocation, and was this action filed within one year from that date?", "batch": "c02", "translatedFrom": "ko"}
{"caseNo": "2022Do3771", "issue": "In a special commission purchase transaction of goods bearing a false indication of origin, what must be confirmed in order to regard the large-scale distributor as the victim of fraud and recognize the entire supply price as the amount of gain for aggravated punishment?", "answer": "Upon examining the substance of the transaction, the vesting of ownership of the goods, the placement of orders and processing of payment, sales and inventory management, the nature of the commission, etc., it must be confirmed whether the distributor is the subject of the deception, the mistake, and the act of disposition. Since the amount obtained by fraud from each victim must also be strictly calculated, if that value cannot be specifically calculated, the defendant cannot be punished for the offense of fraud in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed insofar as it concerns the guilty portion as to Defendant 1, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "The nature of the special commission purchase transaction and the characteristics of property crimes that form the premise of criminal punishment"}, "factors": ["the value of the property or pecuniary benefit obtained by fraud", "the counterparty of the act of deception and, at the same time, the subject of the resulting mistake and act of disposition", "the nature of the special commission purchase transaction", "the characteristics of property crimes that form the premise of criminal punishment"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court en banc Judgment 2005Do7288 decided April 19, 2007"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Through further examination, can the substantive status as victim of each distributor and the amount obtained by fraud from each victim be recognized?", "batch": "c02", "translatedFrom": "ko"}
{"caseNo": "2022Do1452", "issue": "If a warrant designates only the electronic information stored in an on-site information processing device, may electronic information on a remote server accessed through that device also be seized?", "answer": "The clause of a warrant specifying the objects of seizure must be strictly construed, and the electronic information on a remote server must be separately specified. Seizure of Google Cloud data under the warrant in this Case was unlawful, and such data and the related Evidence collected on the basis thereof are also without admissibility of evidence.", "disposition": {"value": "partial reversal and remand", "quote": "The guilty portion of the judgment of the court below is reversed, and this case is remanded to Incheon District Court."}, "standard": {"value": "states requirements", "quote": "Whether the electronic information stored on a remote server must be separately specified as 'objects of seizure' (Affirmative)"}, "factors": ["The wording entered to specify the 'objects of seizure'", "The electronic information stored in a computer or other information processing device at the 'place to be searched'", "The electronic information stored on a remote server", "Where only the electronic information stored in a computer or other information processing device is designated in the 'objects of seizure'"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2008Do763 decided March 12, 2009"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "When specifying the electronic information of a remote server in a warrant, to what extent must the account and the scope of the data be stated concretely?", "batch": "c02", "translatedFrom": "ko"}
{"caseNo": "2022Da283602", "issue": "How is the scope of adjudication on appeal determined in a bankruptcy claim objection action, and what effects arise as to the underlying act, the claim for registration, and the obligation of registration where only the registration act is avoided?", "answer": "Whether there is a change to a party's detriment is determined on the basis of the dispositive part, and on appeal the court may examine the bankruptcy claim as a whole as necessary to review the claim within the scope of the appeal. Where only the registration act is avoided, the underlying act remains valid and the claim for registration is revived retroactively to the time of exercise of the right of avoidance, but once the judgment avoiding the registration act becomes final and the avoidance registration is even completed, the obligation of registration becomes impossibility of performance in accordance with socially accepted notions.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Whether, where a judgment avoiding the debtor's registration act has become final and the avoidance registration has even been completed, the bankruptcy trustee's obligation to perform the registration procedure toward the counterparty becomes impossibility of performance (affirmative)"}, "factors": ["Dispositive part of the judgment", "Merits of the claim falling within the scope of adjudication", "Where the underlying act causing the change in rights remains valid and", "Only the debtor's registration act toward the counterparty, which is a requirement for its establishment, has been avoided", "Where a judgment avoiding the debtor's registration act has become final and the avoidance registration has even been completed"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2005Da72348 decided July 13, 2007"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even at the stage where the judgment avoiding the registration act has become final but the avoidance registration has not yet been completed, can impossibility of performance of the obligation of registration be recognized?", "batch": "c02", "translatedFrom": "ko"}
{"caseNo": "2022Da231717", "issue": "As to the exercise by the bankruptcy trustee of the right of avoidance in respect of an assignment of claim, may a subcontractor, as a third party, invoke its effect to assert a direct payment claim?", "answer": "Unless there are special circumstances, the effect of an exercise of the right of avoidance does not extend to third parties, and third parties are not limited to persons who have acquired new rights on the basis of the act subject to avoidance. Accordingly, a subcontractor who is not the counterparty to the exercise of the right of avoidance cannot, absent special circumstances, assert a direct payment claim on the ground of the invalidity of the assignment of claim in this Case.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to Suwon District Court."}, "standard": {"value": "Application to the facts", "quote": "A case holding that Company B, being neither the counterparty to the exercise of the right of avoidance nor a party as to whom other special circumstances can readily be found, cannot assert its own direct payment claim on the ground that the said assignment of claim is void by virtue of the effect of the exercise of the right of avoidance."}, "factors": ["Persons who have acquired new rights on the basis of the legal effects arising from the act subject to avoidance", "Company B is not the counterparty to the exercise of the right of avoidance, and", "as other special circumstances can readily not be found either,"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2003Da55059 decided December 22, 2005"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specifically are the special circumstances that cause the effect of an exercise of the right of avoidance to extend to third parties?", "batch": "c03", "translatedFrom": "ko"}
{"caseNo": "2022Da212273", "issue": "May the court reject only the erroneous portion of expert appraisal results, or select or combine several conflicting expert appraisal results in order to find facts?", "answer": "Expert appraisal results must be respected unless they contain a manifest error, and only the erroneous portion may be rejected, provided that the error does not render the whole contradictory or highly unclear. Selection or combination of conflicting expert appraisal results is also permitted insofar as it does not contravene rules of experience and logical laws, but in this case the assessment of damages reflecting the statutory restrictions on use was insufficient.", "disposition": {"value": "partial reversal and remand", "quote": "As for the portion of the judgment of the court below in which plaintiff lost, the portion concerning the alternative claim is reversed, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Whether only the erroneous portion of the expert appraisal result may be rejected and the expert appraisal result on the remaining portion may be admitted in evidence (in principle, affirmative)"}, "factors": ["The erroneous portion of the expert appraisal result", "The expert appraisal result on the remaining portion", "Several conflicting expert appraisal results"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2009Da84608, 84615, 84622, 84639 decided January 12, 2012"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What is the time of occurrence of damages that appropriately reflect the restrictions on use arising from the non-installation of emergency exits and from fire-fighting facilities, and what is the specific amount of compensation?", "batch": "c03", "translatedFrom": "ko"}
{"caseNo": "2021Da229588", "issue": "Does a liability for damages for wage discrimination arise against the user company also in the case of a dispatched worker who has passed the retirement age, and how are the subject of comparison and the benchmark wage for compensation determined?", "answer": "A dispatched worker who has passed the retirement age is also protected from wage discrimination without reasonable grounds; the subject of comparison may be regular employees who have passed the retirement age and perform the same kind of work or similar work or, where there is no such employee, fixed-term workers rehired after retirement. Even where employees who have not passed the retirement age are taken as the subject of comparison, the circumstance that the retirement age has been passed is taken into account, and if the user company had hired an employee who had passed the retirement age, damages are calculated on the basis of the appropriate wage that would have been paid.", "disposition": {"value": "reversal and self-adjudication", "quote": "Reverses the portion of the judgment of the court below concerning Plaintiff 1's claim for confirmation of status as an employee, cancels the first-instance judgment as to that portion, and dismisses the action as to that portion on procedural grounds."}, "standard": {"value": "totality of circumstances", "quote": "Whether the circumstance that the dispatched worker has passed the retirement age should be considered in determining whether there is a reasonable ground for the disadvantageous treatment (affirmative)"}, "factors": ["knew or could have known that the same kind of work or similar work was being performed, yet", "by participating in or exercising influence over the determination of the dispatched worker's wages, among other means,", "the circumstance that the dispatched worker has passed the retirement age", "the appropriate wage that the user company would have paid had it hired a worker who had passed the retirement age"], "precedent": {"value": "sets a new standard", "quote": "Where there is no worker at the user company's workplace who has passed the retirement age and performs the same kind of work or similar work, there will be no alternative but to take as the worker of comparison a worker who has not passed the retirement age and performs the same kind of work or similar work; however, even in such a case, the circumstance that the dispatched worker has passed the retirement age should be considered in determining whether there is a reasonable ground for the disadvantageous treatment."}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where there are neither hiring cases of workers who have passed the retirement age nor wage practices of similar workplaces, on what materials should the appropriate wage be calculated?", "batch": "c03", "translatedFrom": "ko"}
{"caseNo": "2020Du44930", "issue": "Is the notification issued by the competent authority to a listed company of the occurrence of short-term trading profits a disposition subject to appeal litigation (administrative litigation)?", "answer": "The notification does not create or fix a claim for return, but it gives rise to a disclosure obligation of the listed company and there is no other means of civil relief available, and therefore it constitutes a disposition. However, because this suit was filed after the statutory period for filing suit had elapsed and was therefore improper, the conclusion of the court below was maintained.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "totality of circumstances", "quote": "The method of determining whether an act of an administrative agency can be the subject of appeal litigation (administrative litigation)"}, "factors": ["Article 172 paragraph (3) of the Financial Investment Services and Capital Markets Act", "The notification issued by the competent authority to a listed company of the occurrence of short-term trading profits"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2008Du167 decided November 18, 2010, en banc judgment"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "On what requirements is the standing to sue of a person identified as an acquirer of short-term trading profits recognized, in addition to the listed company that is the recipient of the notification?", "batch": "c03", "translatedFrom": "ko"}
{"caseNo": "2020Do5336", "issue": "May the same warrant be executed again on the ground that a period of validity remains after the execution of a search and seizure warrant has been completed?", "answer": "The period of validity of a warrant is the deadline within which execution may be commenced, and once execution is completed the effect of the warrant is lost; accordingly, in order to conduct a search and seizure anew, a new warrant must be issued. In this case, the conclusion of the court below, which denied admissibility of evidence for the messages acquired on the basis of the completed warrant and for the evidence collected through the arrest and seizure using them, is justifiable.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Whether the effect of that warrant is lost (affirmative)"}, "factors": ["Where execution has been completed", "The same place or object", "On the ground that a period of validity remains"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 99Mo161 decided December 1, 1999"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "In an investigation that searches electronic information on multiple occasions, how specifically should the point in time at which execution of a warrant is completed be determined?", "batch": "c03", "translatedFrom": "ko"}
{"caseNo": "2020Do14654", "issue": "Can the mobile phone of the actual suspect be seized under a warrant identifying another person as the suspect, and can cloud electronic information separately and voluntarily provided be lawfully seized?", "answer": "Extending a warrant that specified the object of seizure as another person's property, etc. to seize a mobile phone owned by the actual suspect is unlawful; however, that Evidence was not used in the finding of guilty, and it had no effect on the outcome of the judgment. If the suspect, with the intention of submitting to the investigative agency the electronic information stored in a remote location, voluntarily provided the mobile phone and cloud access information, seizure based on the voluntary submission of that electronic information is permitted.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Where the suspect voluntarily submitted a mobile phone and, with the intention of submitting to the investigative agency the electronic information stored in a remote location, voluntarily provided the investigative agency with the ID and password for accessing cloud services, etc."}, "factors": ["Evidence separate from the alleged crime facts that formed the grounds for the issuance of the warrant and unrelated to them", "issued in substitution for access authority to the suspect's email account", "intention to submit to the investigative agency the electronic information stored in a remote location", "where the ID and password were voluntarily provided"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2017Do9747 decided November 29, 2017"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where cloud access information was provided but the scope of the files subject to submission was not specified, how is the scope of voluntary submission to be determined?", "batch": "c03", "translatedFrom": "ko"}
{"caseNo": "2020Da221631", "issue": "Where a composition is revoked after its approval and the debtor is adjudicated bankrupt, what does suspension of payment, the temporal requirement for avoidance, mean, and may the acts of a third party also be avoided?", "answer": "Suspension of payment is limited to a state of suspension of payment directly connected to the declaration of bankruptcy or the bankruptcy proceedings, or a state of crisis equivalent thereto. The acts of a third party may also exceptionally become the object of avoidance if, by reason of special circumstances such as collusion with the debtor, they can be equated with the acts of the debtor.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Whether 'suspension of payment' should be interpreted as limited to a state of suspension of payment directly connected to the declaration of bankruptcy or the bankruptcy proceedings, or a state of crisis equivalent thereto (Affirmative)"}, "factors": ["Where, after the composition approval order has become final and conclusive, the composition is revoked and a declaration of bankruptcy is rendered", "A state of suspension of payment directly connected to the declaration of bankruptcy or the bankruptcy proceedings", "A state of crisis equivalent thereto", "Acts of a creditor or a third party"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2011Da56637, 56644 decided October 13, 2011"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Apart from collusion with the debtor, what special circumstances may permit the acts of a third party to be equated with the acts of the debtor?", "batch": "c03", "translatedFrom": "ko"}
{"caseNo": "2019Do7342", "issue": "Where only electronic information that is in substance the object of seizure is stored in a disguised camera voluntarily submitted by a third party, can admissibility of evidence be denied solely on the ground that the suspect was given no opportunity to participate and that no list of seized electronic information was served?", "answer": "The seizure of information storage media voluntarily submitted by a third party is limited to the relevant electronic information and, in principle, the procedural rights of the suspect should be guaranteed. However, in the case of this disguised camera, where, given the function and nature of the medium, there is little possibility of electronic information that is not the object of seizure being intermingled, admissibility of evidence cannot be denied solely on the ground that no opportunity to participate was given and no list of seized electronic information was served.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Uijeongbu District Court."}, "standard": {"value": "states requirements", "quote": "Where, given the function and nature of the information storage medium, there is little possibility that electronic information that is the object of a lawful seizure following voluntary submission and electronic information that is not would be intermingled, such that in substance only electronic information that is the object of seizure is stored"}, "factors": ["Where the objects and scope of the seizure of electronic information in accordance with the will of the person who voluntarily submitted it are not clear or cannot be ascertained", "Electronic information related to the suspected crime facts that formed the motive for the seizure following voluntary submission and that has at least minimal value in proving them", "As part of a series of offenses arising from the manifestation of sexual desire or propensity", "Where there is little possibility that electronic information that is the object of seizure and electronic information that is not would be intermingled,", "Without guaranteeing the person subject to seizure an opportunity to participate,"], "precedent": {"value": "sets a new standard", "quote": "However, unlike the case of the foregoing en banc judgment, where the information storage medium voluntarily submitted to the investigating authority, given its function and nature, leaves little possibility that electronic information that is the object of a lawful seizure following voluntary submission and electronic information that is not would be intermingled, such that in substance only electronic information that is the object of seizure is stored"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "If some private electronic information deserving of protection is also stored in the disguised camera, from what degree of intermingling are the guarantee of the right to participate and the service of a list of seized electronic information required?", "batch": "c03", "translatedFrom": "ko"}
{"caseNo": "2019Do11967", "issue": "How should the admissibility of evidence of electronic information obtained without guaranteeing the right to participate be determined, and how should the eligibility of seizure-related documents independent of that information as corroborative evidence of a confession be determined?", "answer": "Absent special circumstances, electronic information obtained without guaranteeing the right to participate is illegally obtained evidence, and its illegality is not cured by a subsequent warrant or consent to use it as evidence. However, the seizure-related documents independent of that information, stating that the mobile phone was voluntarily submitted at the scene of the offense, have room to corroborate the confession to offense No. 26, and further examination is necessary.", "disposition": {"value": "partial reversal and remand", "quote": "The relevant portion is reversed, and the case in this portion is remanded to the Seoul Central District Court. The remainder of the final appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Where appropriate measures, such as guaranteeing the party subject to seizure an opportunity to participate, were not taken"}, "factors": ["A data storage medium, or a copy thereof, containing a mixture of electronic information subject to seizure and electronic information that is not", "Appropriate measures, such as guaranteeing the party subject to seizure an opportunity to participate", "Where a warrant was subsequently issued by a court, or where the defendant or defense counsel consents to its use as evidence", "The degree of corroborative evidence for the confession"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2016Do348, en banc judgment, decided November 18, 2021 (Supreme Court Official Gazette Gong 2022Sang, 57)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "As a result of examining the seizure-related documents independent of that information on remand, can they be found sufficient to corroborate the confession to offense No. 26?", "batch": "c04", "translatedFrom": "ko"}
{"caseNo": "2019Do10309", "issue": "Even where electronic information is objectively related to the alleged offense stated in the warrant, if it was collected without guaranteeing the right to participate, can it be used as evidence for a guilty verdict?", "answer": "Objective relevance is determined by comprehensively assessing specific connections, but even where relevance is recognized, electronic information collected without guaranteeing the right to participate is, in principle, inadmissible in evidence. Special circumstances justifying exceptional use must be proven by the prosecutor, and in this Case they are not recognized.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "totality of circumstances", "quote": "The scope and criteria for determining objective relevance to the alleged offense of the crime"}, "factors": ["Objective relevance to the alleged offense of the crime", "Guaranteeing the person subject to seizure or the attorney an opportunity to participate", "Appropriate measures to prevent the arbitrary copying, etc. of electronic information unrelated to the alleged offense", "The existence of such exceptional circumstances"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2015Do12400 decided September 21, 2017 (Supreme Court Decision Gazette 2017ha, 2033)"}, "burden": {"value": "prosecutor", "quote": "Burden of proof as to the existence of such exceptional circumstances (= prosecutor)"}, "openQuestion": "In the collection of electronic information where the right to participate was not guaranteed, what additional circumstances must be proven for the admissibility of evidence to be exceptionally recognized?", "batch": "c04", "translatedFrom": "ko"}
{"caseNo": "2018Do20415", "issue": "Does a joint principal offender arise merely from the circumstance of recognizing and condoning another's crime, and if so, what degree of proof is required to acknowledge it?", "answer": "Since a joint principal offender requires a joint plan and the commission of a crime through functional control over the act, mere recognition and condonation are insufficient. In light of each party's status, role, and other circumstances taken together, a relationship of mutual utilization must be proved beyond reasonable doubt; in this Case, it was not sufficiently proved.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Requirements for the establishment of a joint principal offender under Article 30 of the Criminal Act"}, "factors": ["The content of the joint plan as a subjective requirement", "The degree of proof required to acknowledge a joint principal offender"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2002Do5112 decided March 11, 2005 (Supreme Court Bulletin 2005, p. 618)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "If provision of specific ideas or division of roles is additionally proved, can functional control over the act of manipulating market prices be acknowledged?", "batch": "c04", "translatedFrom": "ko"}
{"caseNo": "2018Do19772", "issue": "Where a loan is obtained by inflating the value of collateral, does the offense of fraud arise, and must the loanable amount based on the actual value be deducted from the amount of gain?", "answer": "If the loan was made in reliance on deception that falsely inflated the value of the collateral, the offense of fraud is established. The entire loan amount disbursed constitutes the amount of gain; therefore, the loanable amount based on the actual value cannot be deducted.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed insofar as it concerns the defendant, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Where a person obtains a loan from a financial institution by falsely inflating the value of the property to be provided as collateral, whether the offense of fraud is established (affirmative)"}, "factors": ["By falsely inflating the value of the property to be provided as collateral", "Where a loan is obtained from a financial institution", "The loanable amount premised on the actual value of the collateral"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2017Do12649 decided December 22, 2017 (Gongbo 2018 Sang(1), 388)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "If the financial institution made the loan knowing that the inflated value was false, how should the causation between the deception and the loan be determined?", "batch": "c04", "translatedFrom": "ko"}
{"caseNo": "2018Da241403", "issue": "Can the short-term extinctive prescription begin to run based solely on the announcement of the results of an investigation into market price manipulation, the prosecution, and media reports, on the ground that individual investors thereby learned the elements of employer's liability?", "answer": "Whether the damage and the tortfeasor were known must be determined on the basis of a realistic and concrete recognition of the elements of the tort (unlawful act), the employment relationship, and the connection with the execution of business. The individual investors in this Case cannot be deemed to have recognized such facts at the time of the announcement of the investigation results or around the time of the prosecution and the reports, and the judgment of the court below, which took that point in time as the starting date, is erroneous.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "Application to the facts", "quote": "A case holding that, contrary to the foregoing, the judgment of the court below was erroneous in misapprehension of legal principles regarding the starting date of extinctive prescription for a claim for damages arising from a tort (unlawful act)"}, "factors": ["The announcement of the investigation results by the Financial Services Commission, etc., the prosecution by the prosecutors' office, and media reports", "The existence of an unlawful tortious act", "The fact that adequate causation (proximate cause) exists between the tortious act and the occurrence of the damage", "The elements of the tort (unlawful act), including the employment relationship"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2006Da30440 decided April 24, 2008 (Supreme Court Gazette, Vol. 2008, p. 770)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "At what exact point in time did the plaintiffs actually recognize the elements of employer's liability, so that the short-term extinctive prescription began to run?", "batch": "c04", "translatedFrom": "ko"}
{"caseNo": "2018Da210348", "issue": "What special circumstances are required to deny an act of execution as intentional, and upon whom does the burden of proof rest?", "answer": "In general, the denial of an act of execution does not require special circumstances that identify it with the debtor's act, but intentional denial requires special circumstances that are in fact identical to the debtor having made payment knowing it would harm the creditors; the trustee bears the burden of proving this, and the mere fact that the debtor was in a state of liabilities exceeding assets at the time of execution is insufficient.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Whether special circumstances that can be regarded as in fact identical to 'the debtor having made payment knowing that it would harm the holders of bankruptcy claims' are required (affirmative)"}, "factors": ["Cases in which the act of a creditor or a third party can be identified with the act of the debtor", "Special circumstances that can be regarded as in fact identical to 'the debtor having made payment knowing that it would harm the holders of bankruptcy claims'", "That the debtor was in a state of liabilities exceeding assets at the time of the act of execution"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2009Da76362 decided November 24, 2011 (Supreme Court Decision Gazette 2012-Sang, 16)"}, "burden": {"value": "The party asserting it", "quote": "Who bears the burden of proof as to the existence of special circumstances (= the trustee asserting intentional denial)"}, "openQuestion": "Beyond the state of liabilities exceeding assets, what specific facts of involvement must be proved in order to identify the act of execution with a payment made knowing that it would cause harm?", "batch": "c04", "translatedFrom": "ko"}
{"caseNo": "2017Do9087", "issue": "Up to what scope may a second recipient of information be punished as an accomplice in the first information recipient's act of using unpublished information?", "answer": "A second recipient of information who separately received the information transmitted to him/her and used it after the first receipt of information may not be punished as an accomplice under the former law, even if the conduct constitutes general conspiracy or aiding and abetting. However, if the second recipient jointly participated in the first information recipient's act of immediately using the information in trading at the stage when the information was first received, the second recipient may be punished as an accomplice.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed insofar as it found Defendant 1 guilty, and this part of the case is remanded to the collegiate panel of the Seoul Southern District Court."}, "standard": {"value": "states requirements", "quote": "Where the second recipient of information jointly participated in the first information recipient's act of immediately using the information in trading at the stage when the information was first received"}, "factors": ["Having received unpublished inside information again on an occasion separate from the first receipt of information", "Where unpublished inside information was received and used after the first receipt of information", "The act of immediately using the information in trading at the stage when the information was first received", "Where the second recipient of information jointly participated in the act"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2008Do6953 decided December 10, 2009 (Gong 2010Sang, 176)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "On remand, how will the joint participation of Defendant 1 and the second recipient of information, and the consequent scope of Defendant 1's ultimate responsibility, be determined?", "batch": "c04", "translatedFrom": "ko"}
{"caseNo": "2017Do7843", "issue": "By what criteria are the elements of the use of undisclosed material information and embezzlement determined, and may the addition of facts alleged in the indictment that are identical in basic facts be disallowed at the appellate stage?", "answer": "If the undisclosed material information is one factor in the transaction, the act of use is recognized absent special circumstances, and where the custodian disposes of property against the owner's interests for the benefit of himself or a third party, an intent to appropriate unlawfully may be recognized. An amendment of the indictment involving facts identical in basic facts must be permitted even at the appellate stage, and the judgment of the court below disallowing it on the ground of the benefit of a trial instance or the burden of examination is erroneous.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed insofar as it concerns Defendant 2, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Where the custodian disposes of property against the owner's interests for the benefit of himself or a third party, whether an intent to appropriate that property unlawfully may be recognized (affirmative)"}, "factors": ["In a state of awareness of the undisclosed material information", "The benefit of himself or a third party", "Where property is disposed of against the owner's interests", "Where the facts alleged in the indictment are identical in basic facts"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 94Do3297 decided February 17, 1995"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent is the identity between the facts alleged in the indictment added in the proceedings on remand and the existing facts alleged in the indictment recognized, and to what extent are the respective acts of embezzlement recognized?", "batch": "c05", "translatedFrom": "ko"}
{"caseNo": "2017Do19019", "issue": "Can a disclosure that faithfully reflects the contents of a contract and whose statement itself is difficult to regard as false also constitute a wrongful means under the Financial Investment Services and Capital Markets Act?", "answer": "It applies where, in connection with other means or the contents, purpose, or method of a transaction, it may be regarded as wrongful in light of generally accepted social norms. The court below's recognition as an unfair transaction of the act of causing an acquisition by an individual without financial capacity to be disclosed and reported as if it were an acquisition by a foreign-affiliated company with abundant financial capacity is proper.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "totality of circumstances", "quote": "Cases where, in connection with other means or the contents, purpose, method, etc. of a transaction, it may be regarded as wrongful in light of generally accepted social norms"}, "factors": ["Faithfully reflecting the contents of the contract", "Other means or the contents, purpose, method of a transaction", "Cases where it may be regarded as wrongful in light of generally accepted social norms"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2013Do4843 decided August 22, 2013"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Up to what extent must the acquirer's financing structure be disclosed for it to be regarded that a misunderstanding concerning its own financial capacity has been prevented?", "batch": "c05", "translatedFrom": "ko"}
{"caseNo": "2017Do1616", "issue": "Use of undisclosed material information for the Work of a corporation is also punished; can profits from a stock price increase in which other causes intervened be included in the profits obtained by the violating act?", "answer": "Regardless of whether it is done on one's own account or on another's account, use of undisclosed material information for the Work of a corporation is also punished. Profits having causation with the violating act must be calculated, and causation is not negated merely by the intervention of other causes that could ordinarily be foreseen; accordingly, the court below erred in holding that the calculation of profits was itself impossible due to circumstances such as merger rumors or the merger ratio.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below as to the defendants is reversed, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "The meaning of 'profits obtained by the violating act' and the method of calculating them, and the locus of the burden of proof (= prosecutor)"}, "factors": ["In relation to the Work of a corporation", "Done on one's own account for the purpose of pursuing one's own profit", "Done on another's account for the profit of another", "Cases that could ordinarily be foreseen", "Causation between the violating act and the profits"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2009Do1374 decided July 9, 2009"}, "burden": {"value": "prosecutor", "quote": "The meaning of 'profits obtained by the violating act' and the method of calculating them, and the locus of the burden of proof (= prosecutor)"}, "openQuestion": "On remand, as of what point in time is the effect of the undisclosed material information on the stock price deemed exhausted, and in what amount is the profit for each defendant reflecting this recognized?", "batch": "c05", "translatedFrom": "ko"}
{"caseNo": "2017Do10601", "issue": "Where, after an ex officio (by the court's own authority) reversal, a separate determination of the grounds for appeal is omitted or the provision applied to the offense of fraud is viewed differently, must the judgment be reversed; and are advance interest or fees deducted from the amount defrauded?", "answer": "Where the appellate court reverses the first-instance judgment ex officio (by the court's own authority) and renders a new judgment, it is not unlawful to fail to state separately the grounds for appeal contesting the charged facts, and the mere fact that the offense under paragraph (2), rather than Article 347 paragraph (1) of the Criminal Act, is established likewise does not affect the outcome of the judgment. Even where part of the consideration is paid under the title of advance interest or fees, the amount defrauded is the entirety of the property delivered.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "In an offense of fraud whose content is the defrauding of property, where consideration has been paid in part under the title of advance interest, fees, or the like, the amount defrauded (= the entirety of the property delivered by the victim)"}, "factors": ["Reasons not included in the grounds for appeal", "Where the first-instance judgment is reversed and a new judgment is rendered", "Where consideration has been paid in part under the title of advance interest, fees, or the like", "The entirety of the property delivered by the victim"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 95Do203 decided March 24, 1995"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where, in the course of rendering a new judgment after an ex officio (by the court's own authority) reversal, the grounds for appeal were not actually examined, is the omission of a separate determination permitted?", "batch": "c05", "translatedFrom": "ko"}
{"caseNo": "2016Do9596", "issue": "Under what relevance and procedural requirements may illegal filming footage from the past, found in a voluntarily submitted mobile phone, be recognized as lawful seized evidence?", "answer": "If the scope of submission is unclear, only electronic information that is related to the suspicion that motivated the submission and that has at least minimal value in proving it may be seized, and past footage of the same type may also be recognized as relevant as indirect evidence or circumstantial evidence. An opportunity to participate and service of a specified inventory of seized items are required in principle, but in this case the defendant participated in the search, and in light of the circumstances under which the photographs were presented, the failure to serve the inventory did not substantially infringe procedural rights, and thus admissibility of evidence is recognized.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to Suwon District Court."}, "standard": {"value": "states requirements", "quote": "Whether only electronic information that is related to the criminal suspicion that motivated the seizure following voluntary submission and that has at least minimal value in proving it becomes the object of seizure (affirmative)"}, "factors": ["The intent of the person making the voluntary submission", "Relevance to the criminal suspicion and at least minimal value in proving it", "indirect evidence or circumstantial evidence found in electronic information of the same type", "Guaranteeing the person from whom items were seized an opportunity to participate", "An inventory of seized items specifying the file details of the seized electronic information"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court en banc Judgment 2016Do348 decided November 18, 2021"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where there are many printed photographs or where the dates and places of filming differ and cannot be readily identified, may the failure to serve the inventory of seized items be regarded as not constituting a substantial infringement of rights?", "batch": "c05", "translatedFrom": "ko"}
{"caseNo": "2016Do9027", "issue": "How should the embezzlement of slush funds — for which there is an explanation that they were used for company purposes — the amount subject to aggravated punishment, and the intent in breach of trust based on business judgment be recognized?", "answer": "The circumstances of the creation and use of the slush funds, the company's business needs, and the like must be comprehensively considered and the intent to obtain unlawful gain must be carefully determined, and where there is a possibility that a substantial amount was used for company purposes, the embezzlement of the entire amount or the minimum amount subject to aggravated punishment cannot be recognized merely because the records of use are insufficient. Since the intent for breach of trust arising from business judgment must also be strictly recognized in light of all circumstances, liability cannot be imposed solely on the basis of the occurrence of loss or negligence.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed as to the portion finding Defendant 1 guilty and as to the portion concerning Defendant 3, and this part of the case is remanded to Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "The method of determining whether a corporate manager had intent to commit breach of trust in connection with business judgment"}, "factors": ["Where it is clearly established that the funds were created for the purpose of taking and appropriating the funds of a corporation", "for the company", "an act of embezzlement as an act realizing the intent to obtain unlawful gain", "the value of the property embezzled", "business judgment"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2007Do4784 decided February 26, 2009"}, "burden": {"value": "prosecutor", "quote": "As to each individual act of use, the prosecutor must prove that there are sufficient circumstances from which unauthorized use may be inferred."}, "openQuestion": "On remand, what is the specific scope and amount of the slush funds proven to have been used for personal purposes?", "batch": "c05", "translatedFrom": "ko"}
{"caseNo": "2016Do6297", "issue": "Whether actual misunderstanding and causation are required for the crime of unfair trading that utilizes false financial statements to obtain a benefit, and how is the benefit from joint unfair trading calculated?", "answer": "If, knowing that it may cause misunderstanding in investment judgment, false financial statements are actively utilized to obtain a pecuniary benefit, this constitutes an act of use of a document, and neither actual misunderstanding, nor actual acquisition of the benefit, nor causation between the act of using the document and the misunderstanding is required. The benefit obtained from the violating act is calculated as the benefit for which causation with the violating act is recognized, and, in the case of joint commission of the offense, the benefit acquired by all accomplices is taken as the standard, which the prosecutor must prove.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Whether a causation must exist between the 'act of use of a document bearing a false entry or indication' and 'another person's misunderstanding' for the crime violating the foregoing provision to be established (negative)"}, "factors": ["Financial statements falsely or incompletely indicating important matters", "Matters capable of affecting investors' investment judgment", "While knowing that it may cause misunderstanding", "An act of actively utilizing it as an opportunity to obtain a pecuniary benefit", "The benefit acquired by all accomplices who participated in the offense"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2014Do9691 decided January 15, 2015"}, "burden": {"value": "prosecutor", "quote": "The meaning of 'benefit obtained from the violating act' and the method of calculating it, and the allocation of the burden of proof (= prosecutor)"}, "openQuestion": "Where market factors independent of the violating act have affected the stock price together, by what specific method should their contribution be separated in calculating the benefit?", "batch": "c05", "translatedFrom": "ko"}
{"caseNo": "2016Do3411", "issue": "What constitutes an unfair means and deception under the Financial Investment Services and Capital Markets Act, and how are transaction-relatedness, the purpose of causing fluctuations in market prices, and the like determined?", "answer": "An unfair means is any means recognized as unfair in accordance with social common sense, and deception is a means that, through deception of a counterparty in a transaction or of unspecified investors, seeks to induce a certain act. Transaction-relatedness, unfairness, the purpose of causing fluctuations in market prices, and the like are determined objectively by comprehensively considering the actor's position, the motive and basis of the statement, the risk of misapprehension, subsequent conduct, and stock price trends.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "The method of determining whether an act is related to a transaction such as the purchase or sale of a financial investment product, whether it is an unfair means, scheme or artifice, whether it is a falsehood or deception, and whether there exists the purpose of seeking a fluctuation in market price"}, "factors": ["Whether the act is related to a transaction such as the purchase or sale of a financial investment product", "Whether it is an unfair means, scheme or artifice", "Whether it is a falsehood or deception", "Whether there exists the purpose of seeking a fluctuation in market price"], "precedent": {"value": "follows existing precedent", "quote": "See, e.g., Supreme Court Decision 2000Do4444 decided January 19, 2001; Supreme Court Decision 2008Do6335 decided March 10, 2011"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must the reasonable grounds for projections concerning future performance be lacking for the conduct to be recognized as unfair trading?", "batch": "c06", "translatedFrom": "ko"}
{"caseNo": "2016Da220198", "issue": "Under what requirements can an act of a third party and a preferential act be avoided in bankruptcy proceedings, and who proves the good faith of the beneficiary?", "answer": "An act of a third party may also be avoided if, by reason of the debtor's collusion or other special circumstances, it can be treated in the same manner as the debtor's own act; and the intentional avoidance of a preferential act requires the recognition that the principle of equality among creditors is being circumvented by making payment to, or providing security for, only a specific creditor. Since the bad faith of the beneficiary is presumed, the beneficiary must prove good faith.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "The content of the subjective requirement demanded for the intentional avoidance of a preferential act to be recognized"}, "factors": ["Acts of a creditor or a third party", "An act done by the debtor with knowledge that it would harm creditors holding bankruptcy claims", "The subjective requirement demanded for the intentional avoidance of a preferential act to be recognized", "Whether the beneficiary was unaware of the fact that it would harm creditors holding bankruptcy claims or others"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court Decision 2014Da214885 decided September 25, 2014, etc."}, "burden": {"value": "the opposing party", "quote": "The burden of proof as to good faith is borne by the beneficiary"}, "openQuestion": "Where there is no collusion of the debtor, what special circumstances must exist for an act of a third party to be treated in the same manner as the debtor's own act?", "batch": "c06", "translatedFrom": "ko"}
{"caseNo": "2015Do760", "issue": "If securities broadcasting experts and others recommend the purchase of securities without disclosing their interest in advance purchases and the possibility of future sales, does this constitute use of unfair means and deception under the Financial Investment Services and Capital Markets Act?", "answer": "Such a recommendation constitutes use of unfair means, and by omitting personal interests and creating the impression of a recommendation based on objective motives, it induces transactions and therefore also constitutes deception. The court below needs to examine further whether the defendant recommended purchases without indicating his interest in individual stocks.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "an act of recommending the purchase of a security without indicating one's own interest"}, "factors": ["investment advisers, securities analysts, persons engaged in news media, operators of investment-related websites", "holds the recommended security having made an advance purchase of it and", "the possibility of selling it after the recommendation", "without indicating one's own interest,", "an act of recommending the purchase of that security"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court Decision 2014Do6910, decided March 30, 2017"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must a recommender specifically indicate his holding of the security and the possibility of selling it in order for the interest to be regarded as sufficiently disclosed?", "batch": "c06", "translatedFrom": "ko"}
{"caseNo": "2015Do3707", "issue": "By what criteria are the materiality and non-public nature of material non-public information, and whether it was used in trading, determined?", "answer": "Material information is information of significant value to the investment judgment of a reasonable investor, and it constitutes non-public information until it is disclosed by a statutory method in accordance with the will of the corporation. The use of information requires that the information have influenced the decision whether to trade or on the conditions of trading, and this is determined by comprehensively considering the contribution of the acquisition and recognition of the information to the trade, the economic circumstances, and the pattern of the transaction, among other factors.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "the requirements for saying that material non-public information was used and the criteria for determining whether it falls within such use"}, "factors": ["the meaning of 'material information'", "in accordance with the will of the corporation concerned, until", "it is disclosed by a method prescribed by Presidential Decree,", "the requirements for saying that material non-public information was used"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court Decision 2014Do11775, cited above"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where a trading plan was fixed prior to the acquisition of the information, by what criteria can the effect of that information on the trading decision be distinguished?", "batch": "c06", "translatedFrom": "ko"}
{"caseNo": "2015Da235582", "issue": "Where a savings bank expected to face suspension of business paid deposits to its employees and their relatives, is such preferential act excluded from intentional (fraudulent) avoidance on grounds of social appropriateness?", "answer": "Even a preferential act cannot be avoided in exceptional cases where the act is socially necessary and appropriate or unavoidable, such that ordinary holders of bankruptcy claims must bear the unfairness, and the beneficiary must prove such circumstances. However, in this case, the acts of using inside information and paying deposits through unlawful procedures do not fall within such an exception.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed as to Defendants 3, 4, 5, 6, 7, 8, 9, 10, and 11, and this part of the case is remanded to the Busan High Court."}, "standard": {"value": "totality of circumstances", "quote": "the criteria for determining the appropriateness of an act"}, "factors": ["recognized as having been socially necessary and appropriate or unavoidable,", "cases where ordinary holders of bankruptcy claims may be said to have to bear the reduction of the bankruptcy estate or the unfairness", "a situation in which a large-scale withdrawal of deposits and suspension of business were expected", "a case in which deposits were paid to Eul and others who were employees or relatives of employees"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court Decision 2003Da65049, decided March 26, 2004; Supreme Court Decisions 2011Da56637 and 2011Da56644, decided October 13, 2011; among others"}, "burden": {"value": "the opposing party", "quote": "the burden of proof lies with the counterparty, the beneficiary"}, "openQuestion": "Where a deposit payment made before the suspension of business satisfied an urgent need for livelihood through lawful procedures, can social appropriateness be recognized?", "batch": "c06", "translatedFrom": "ko"}
{"caseNo": "2015Da227017", "issue": "Is a funding replenishment agreement, which is an act in evasion of the prohibition on guarantees of debt under the Monopoly Regulation and Fair Trade Act, void by operation of law, and is the period subject to gratuitous avoidance extended merely by the special relationship of the principal obligor?", "answer": "If the effect of violating a prohibitory provision is not expressly specified, the legislative intent and the protected legal interest, the gravity of the violation, and the impact on transactions, among other factors, must be comprehensively considered, and the guarantee of debt or act in evasion is not void as a matter of private law. The extension of the period subject to avoidance requires that the creditor, who is the direct counterparty to the guarantee, be a person in a special relationship with the guarantor; thus, the special relationship of the principal obligor alone is insufficient.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "the method for determining the effect of a juristic act that violates a prohibitory provision, among others"}, "factors": ["where the effect of a juristic act that violates such provisions is not clearly determined,", "a guarantee of debt or an act in evasion that violates Article 10-2, paragraph (1) or Article 15", "although the principal obligor is in a special relationship with the joint and several guarantor,", "where the creditor, the counterparty to the act of joint and several guarantee, is not in a special relationship with the guarantor"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court Decision 2008Da75119, decided December 23, 2010; Supreme Court Decision 2015Da256794, decided October 12, 2018; among others"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Does the funding replenishment agreement in this case itself constitute an act in evasion of a guarantee of debt prohibited under the Monopoly Regulation and Fair Trade Act?", "batch": "c06", "translatedFrom": "ko"}
{"caseNo": "2014Ma188", "issue": "Where the price of the underlying asset was wrongfully moved so as to obstruct the fulfillment of redemption conditions, may an investor who continued to hold the product also claim damages under the Financial Investment Services and Capital Markets Act?", "answer": "Whether an unfair act exists is determined by comprehensively considering the structure of the product and the course of the transaction, market characteristics, and the relationship between the investor and the actor, among other factors, and acts that affect the exercise of rights or the fulfillment of conditions by unfair means are also prohibited. If, as a result, the redemption amount or the like changed and loss was suffered, even an investor who continued to hold may claim damages; therefore, the requirements for a class action cannot be denied on the ground that there was no active transaction.", "disposition": {"value": "reversal and remand", "quote": "The order of the court below is reversed, and the Case is remanded to Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "the criteria for determining whether an act falls within the unfair acts prohibited by Article 178 of the Financial Investment Services and Capital Markets Act"}, "factors": ["the price of the underlying asset at a specific point in time", "whether rights are exercised or conditions are fulfilled", "the structure under which money or the like is settled", "means recognized as unfair in light of commonly accepted notions", "an investor who suffered loss due to the violating act"], "precedent": {"value": "sets a new standard", "quote": "If, due to that violating act, the content of the rights or obligations of the investor in the financial investment product is altered or the amount settled is changed so that the investor suffers loss, the investor may claim damages against the person who committed the unfair trading pursuant to Article 179, paragraph (1) of the Financial Investment Services and Capital Markets Act."}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Does the mass selling of the underlying asset in this case in fact constitute unfair trading, and what is the amount of the investor's loss caused thereby?", "batch": "c06", "translatedFrom": "ko"}
{"caseNo": "2014Do9691", "issue": "Does the offense of unfair trading arising from the active use of false financial statements require actual misunderstanding by investors and causation, and in what circumstances is delay in payment of wages and the like exempted?", "answer": "Where a person actively uses disclosed false financial statements while knowing that they may cause misunderstanding, in order to obtain a pecuniary benefit, this constitutes the use of a document, and actual misunderstanding, acquisition of benefit, and causation with the misunderstanding are not required. Delay in payment of wages and the like is exempted only where circumstances making payment impossible despite the utmost efforts at payment are recognized in light of commonly accepted notions; mere financial pressure is insufficient.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "whether causation must exist with 'another person's misunderstanding' (negative)"}, "factors": ["the act of using a document", "another person's misunderstanding", "causation", "unavoidable circumstances preventing payment of wages and the like within the due date"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court Decision 2003Do6759, decided April 14, 2006; among others"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "With what additional act must the failure to correct disclosed false financial statements be combined in order to be recognized as active use of a document?", "batch": "c06", "translatedFrom": "ko"}
{"caseNo": "2014Do16980", "issue": "Where co-owners were deceived into establishing a maximum amount mortgage over the entire real property, how are the number of offenses of fraud and the amount of gain, the basis for aggravated punishment, determined?", "answer": "Absent circumstances warranting treating the protected legal interest as identical, independent offenses of fraud are established for each victim, and where they were committed by a single act of deception, they stand in a relation of imaginary concurrence, so the amounts of gain cannot be aggregated for aggravated punishment. The benefit obtained by providing security is the benefit of being able to use the real property as security, and its value is, in principle, an amount equivalent to the maximum amount of the claim within the market value of the real property.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed as to Defendant 1, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "whether independent offenses of fraud are established for each victim (affirmative) and cases where the acts may be regarded as a single comprehensive offense of fraud"}, "factors": ["where a person committed separate acts of deception against a plurality of victims and thereby obtained pecuniary benefits from each of them", "even where the intent was single and the method of the offense was identical,", "where a person obtained pecuniary benefits from each of a plurality of victims by one act of deception", "a person who caused a maximum amount mortgage to be established in the name of a third party over real property owned by another"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court Decision 2010Do9330, decided January 13, 2011; among others"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "In what relationship and property management structure among co-owners is the protected legal interest identical such that a single comprehensive offense of fraud is established?", "batch": "c07", "translatedFrom": "ko"}
{"caseNo": "2014Da765", "issue": "May a priority beneficial right under a trust for security purposes granted without consideration be avoided as a gratuitous act, and does the conclusive effect of entries in the table of rehabilitation claims prevent such avoidance?", "answer": "Where a person provides security for another without any obligation to do so and receives no direct and real economic benefit in return, the provision constitutes a gratuitous act subject to avoidance. The rehabilitation plan can have no effect on the priority beneficial right in this Case, and therefore the conclusive effect based on entries in the table of rehabilitation claims does not extend to it either.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "Application to the facts", "quote": "A case holding that the effect of non-contestability does not extend to the priority beneficial right of C and others"}, "factors": ["The debtor's provision of a guarantee or security for another without any obligation to do so", "The second-ranking priority beneficial right in the entrusted real property", "Even if the rights of C and others were entered in the table of rehabilitation claims"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court Decision 97Da20755 decided March 26, 1999, Supreme Court Decision 2006Da50444 decided November 27, 2008, among others"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "If the necessity and unavoidability of the amendment agreement concerning the trust for security purposes were duly asserted in the trial on the facts, could the defect in the requirement of impropriety have been recognized?", "batch": "c07", "translatedFrom": "ko"}
{"caseNo": "2014Da68761", "issue": "If the rehabilitation proceedings are terminated before the property is recovered, whether the effect of the exercise of the right of avoidance survives, and who must prove the scope of the value of the collateral for the rehabilitation security right?", "answer": "If the rehabilitation proceedings are terminated before the property is recovered, the right of avoidance and the claim for return arising from its exercise are also extinguished. The rehabilitation security right holder must assert and prove the fact that the amount of the claim asserted as the rehabilitation security right does not exceed the amount calculated by deducting the amount of the prior-ranking secured claims from the value of the collateral object.", "disposition": {"value": "partial reversal and remand", "quote": "The judgment of the court below is reversed insofar as it ruled against the defendant, and this part of the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "Whether 'the fact that the amount of the rehabilitation security right claim asserted by the rehabilitation security right holder does not exceed the amount calculated by deducting the amount of the claim of the prior-ranking security interest from the value of the collateral object' constitutes a requirement fact for the occurrence of a rehabilitation security right (Affirmative)"}, "factors": ["Where the rehabilitation proceedings were terminated before property was recovered by the debtor", "The amount of the rehabilitation security right claim asserted by the rehabilitation security right holder", "The value of the collateral object", "The amount of the claim of the prior-ranking security interest"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court Decision 2011Da67897, decided November 15, 2012"}, "burden": {"value": "The party asserting it", "quote": "Whether the rehabilitation security right holder must assert and prove this (Affirmative)"}, "openQuestion": "If the amount of the prior-ranking secured claim and the delay damages after the commencement of the rehabilitation proceedings are reflected, what is the specific amount of the rehabilitation security right to be recognized in this Case?", "batch": "c07", "translatedFrom": "ko"}
{"caseNo": "2014Da214885", "issue": "What are the requirements for the intentional avoidance of preferential payment in favor of a particular depositor, the beneficiary's burden of proof, and the scope of the return of interest arising from the avoidance?", "answer": "A preferential payment made with the awareness of evading the principle of equal treatment of creditors is subject to intentional avoidance, and the beneficiary must prove good faith or a defect in the unjustness requirement, which was not found to be established in this case. The beneficiary must also return the statutory interest accruing from the date of payment, and bears liability for delay in performance from the day following service of a duplicate copy of the complaint seeking return.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "The content of the subjective requirement demanded for the intentional avoidance of a preferential act to be recognized"}, "factors": ["An act committed by the bankrupt with knowledge that it would prejudice creditors holding bankruptcy claims", "Whether the beneficiary was unaware of the fact that it would harm creditors holding bankruptcy claims or others", "Socially reasonable and unavoidable", "cases where ordinary holders of bankruptcy claims may be said to have to bear the reduction of the bankruptcy estate or the unfairness", "Statutory interest accruing from the date the payment was received"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court Decision 2003Da271 decided November 10, 2005, etc."}, "burden": {"value": "the opposing party", "quote": "The locus of the burden of alleging and proving the circumstances constituting a defect in the unjustness requirement (= the beneficiary)"}, "openQuestion": "Beyond the circumstances of advanced age and the absence of a direct interest in the debtor company, what further circumstances must be added before the social reasonableness and unavoidability of the preferential payment can be recognized?", "batch": "c07", "translatedFrom": "ko"}
{"caseNo": "2014Da18131", "issue": "Can the defense of good faith be raised against avoidance of an intentional act where the beneficiary of a preferential provision of security did not know that the debtor was in a state of insolvency?", "answer": "Because the exercise of the right of avoidance does not require a state of insolvency as an essential element, knowledge or lack thereof as to that state cannot serve as the principal ground for recognizing good faith. The beneficiary must prove good faith, and in this Case there is ample room to find that the bank was aware that it was evading the principle of equality of creditors and prejudicing other creditors.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "Application to the facts", "quote": "It was erroneous to make the question of Bank C's awareness at the time as to whether Company A was in a state of insolvency the principal ground for recognizing good faith, and"}, "factors": ["for the purpose of extending the maturity of a loan", "an act providing security to a particular creditor", "the question of Bank C's awareness at the time as to whether Company A was in a state of insolvency", "in order to evade the principle of equality of creditors", "awareness that other creditors were prejudiced"], "precedent": {"value": "follows existing precedent", "quote": "See, among others, Supreme Court Decision 2014Da24112 decided July 10, 2014"}, "burden": {"value": "the opposing party", "quote": "The allocation of the burden of proof as to whether the beneficiary did not know the fact that rehabilitation claimants, etc. were prejudiced (= the beneficiary)"}, "openQuestion": "Even after further proceedings following remand, can the bank prove that it is a beneficiary in good faith?", "batch": "c07", "translatedFrom": "ko"}
{"caseNo": "2013Mo1970", "issue": "Where seized property is returned while a quasi-appeal against a disposition refusing the return of seized property is pending, does a benefit remain in the quasi-appeal?", "answer": "A quasi-appeal seeking revocation of a disposition refusing the return requires a benefit, and if the purpose is accomplished by a return during the pendency of the lawsuit, it becomes inadmissible. In this case, since the server deck was returned and the benefit was extinguished, the relevant portion of the order of the court below was reversed and the quasi-appeal dismissed.", "disposition": {"value": "reversal and self-adjudication", "quote": "The portion of the order of the court below that revoked the respondents' act of refusing to return (a) is reversed, and the quasi-appeal as to this portion is dismissed."}, "standard": {"value": "states requirements", "quote": "Where, during the pendency of the lawsuit, the purpose sought to be achieved by the quasi-appeal has already been accomplished or the benefit has been lost, whether the quasi-appeal becomes inadmissible (affirmative)"}, "factors": ["Revocation of a disposition of an investigative agency concerning the return of seized property", "Where, during the pendency of the lawsuit, the purpose sought to be achieved by the quasi-appeal has already been accomplished or", "the benefit has been lost"], "precedent": {"value": "follows existing precedent", "quote": "See, e.g., Supreme Court Decision 98Mo121 decided June 14, 1999; Supreme Court Decision 2014Mo686 decided April 15, 2014"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even in a quasi-appeal contesting not the return of seized property itself but the illegality of the method of execution of a warrant, does the benefit become extinguished merely by the return?", "batch": "c07", "translatedFrom": "ko"}
{"caseNo": "2013Mo1969", "issue": "After a search and seizure of electronic information has been completed, can only the stage at which the right to participate was infringed be cancelled on that ground?", "answer": "In the absence of special circumstances, the entire process must be regarded as a single procedure, and whether the entire disposition should be cancelled must be determined by comprehensively considering the purpose of the procedure provision, the importance of the stage at which the violation occurred, and the possibility of infringement of legal interests. In this case, failing to afford an opportunity to participate at the file conversion and decryption stage was unlawful, but it was not so serious as to render the entire procedure unlawful; accordingly, the order of the court below, which cancelled only that stage, was reversed.", "disposition": {"value": "reversal and self-adjudication", "quote": "Reverses the portion of the order of the court below that cancelled the acts of the respondents to the quasi-appeal, and dismisses the quasi-appeal in this portion."}, "standard": {"value": "totality of circumstances", "quote": "Criteria for determining the seriousness of the illegality"}, "factors": ["all of a series of acts having been carried out", "a quasi-appeal seeking cancellation of the individual disposition at each stage", "understanding the entire process as a single procedure", "whether it is serious enough to render the entire procedure unlawful"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court en banc decision 2011Mo1839, dated July 16, 2015"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What special circumstances permit the disposition at an individual stage to be cancelled separately even after the search and seizure has been completed?", "batch": "c07", "translatedFrom": "ko"}
{"caseNo": "2013Do4064", "issue": "How is it determined whether an act of a financial investment business operator providing a rapid order-processing service to only some investors constitutes unfair means under the Financial Investment Services and Capital Markets Act?", "answer": "The determination must be made comprehensively in light of the characteristics of the market, the structure of transactions, the motive and method of provision, the risk of infringement of the opportunities of and harm to other investors, and the impairment of confidence in the fairness of transactions, among other factors. In this Case, the view was taken that the act did not constitute unfair means, based on, among others, the circumstances that there was no legal obligation to equalize order-processing speed and that a direct conflict of interest with general investors was exceptional.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "The criteria for determining whether an act of a financial investment business operator, etc. providing an investment opportunity or a means of transaction to only specific investors constitutes unfair means, etc."}, "factors": ["A financial investment business operator, etc.", "Providing to only specific investors", "An act of providing an investment opportunity or a means of transaction"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court Decision 2011Do8109 decided October 27, 2011, etc."}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "In markets where speed-preferential services substantially infringe the trading opportunities of general investors or give rise to a direct conflict of interest, what degree of risk of harm is required for the service to be evaluated as unfair means?", "batch": "c07", "translatedFrom": "ko"}
{"caseNo": "2013Do12155", "issue": "Where the funds of multiple victim companies have been embezzled, can the offender be punished for violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes without specifying the amount of damage for each victim?", "answer": "In principle, the victim and the amount of damage for each victim must be specified. However, in this Case, where the funds were commingled so that specification of the individual amounts of damage was impossible, and where, regardless of what composition ratio were applied, the application of the aggravated punishment provisions to each victim company would not change, the facts charged in the indictment were found to have been specified.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "Whether specification of the facts charged in the indictment concerning the victim and the amount of damage for each victim is necessary in order to charge the acts of embezzlement comprehensively as the crime of violation of the same Act (embezzlement) (in principle, affirmative)"}, "factors": ["The victim and the amount of damage for each victim", "Specification of the facts charged in the indictment", "A statement whose content is the statement of another person", "Relevance to the suspicion of a crime"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2010Do13801 decided February 24, 2011"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the aggravated punishment range applicable to each victim company may vary according to the composition ratio of the commingled funds, to what extent must the facts charged in the indictment be specified?", "batch": "c08", "translatedFrom": "ko"}
{"caseNo": "2013Da7264", "issue": "Does a hedging transaction conducted for the purpose of managing the risks of derivatives constitute unlawful market manipulation if it affects the market price of the underlying asset?", "answer": "It must be determined by comprehensively considering indirect facts such as the motive and form of the transaction. If the timing, quantity, and method are consistent with the hedging purpose, economic rationality is recognized, and accordingly, absent special circumstances that undermine the fairness of the transaction, such as artificial price manipulation, the transaction is not market manipulation.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "The meaning and criteria for determining 'an act of fluctuating or fixing the market price'"}, "factors": ["The purpose of obtaining an unfair profit or causing a third party to obtain an unfair profit", "Timing, quantity, and method", "Where these are consistent with the hedging purpose"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2009Da40547 decided July 22, 2010"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "To what extent must the special circumstances warranting a finding that the fairness of the transaction has been undermined be specified, even in transactions consistent with the hedging purpose?", "batch": "c08", "translatedFrom": "ko"}
{"caseNo": "2013Da210374", "issue": "Can the liability of an insider to disgorge short-swing trading profits be excluded for reasons other than the statutory exceptions, or can a management premium and capital gains tax be deducted from the amount to be disgorged?", "answer": "For a type of transaction in which there is objectively no possibility whatsoever of the unfair use of inside information, application may be excluded even on grounds other than the statutory exceptions; however, the transaction in this case does not fall within that category. A management premium and capital gains tax are not deducted from the profits to be disgorged, and the Enforcement Decree, which does not provide for a capital gains tax deduction, neither exceeds the scope of delegation nor infringes property rights.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "a type of transaction in which there is objectively no possibility whatsoever of the unfair use of inside information"}, "factors": ["a type of transaction in which there is objectively no possibility whatsoever of the unfair use of inside information", "management premium", "capital gains tax", "property rights guaranteed by Article 23 of the Constitution"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2006Da73218 decided March 13, 2008"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "In what specific types of transactions can the complete absence of involuntariness and of the possibility of access to inside information be recognized?", "batch": "c08", "translatedFrom": "ko"}
{"caseNo": "2012Do5220", "issue": "Even where a pecuniary benefit is obtained through occupational breach of trust, if the amount of that benefit cannot be specifically calculated, may the aggravated punishment be imposed on the basis of the amount gained?", "answer": "If the amount of the pecuniary benefit cannot be specifically calculated, the offender cannot be given aggravated punishment for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes. Since the court below calculated the amount gained by treating the book value of the vehicles after depreciation as their market price, and further examination was necessary, the judgment was reversed in its entirety, including the remaining portion for which a single sentence was pronounced.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to Daegu High Court."}, "standard": {"value": "states requirements", "quote": "In a crime of occupational breach of trust, where a pecuniary benefit can be recognized but its amount cannot be specifically calculated, whether the act may be charged as a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (breach of trust), which imposes aggravated punishment on the basis of the pecuniary amount gained (negative)"}, "factors": ["The pecuniary benefit", "Where its amount cannot be specifically calculated", "Requirements for the formation of a conspiracy relationship among joint principal offenders", "Degree of specificity of the facts charged in the indictment in a single comprehensive offense"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2001Do3531 decided November 13, 2001"}, "burden": {"value": "prosecutor", "quote": "If the prosecution's proof with respect to this part is insufficient, the amount of that pecuniary benefit must be deemed incapable of calculation, and therefore"}, "openQuestion": "What will be the market price of the vehicles, and the pecuniary benefit arising therefrom, as confirmed on remand through comparable sales cases or appraisals and the like?", "batch": "c08", "translatedFrom": "ko"}
{"caseNo": "2011Do9457", "issue": "Does a party to an oral contract that has not met the procedural requirements for taking effect also fall within the scope of the prohibition on the use of undisclosed information, and when is such information generated?", "answer": "If a party is in a position to readily access and use a corporation's undisclosed material information through a contract, that party is not excluded from the regulated subjects merely because the procedural requirements are deficient or because the contract is an oral contract; however, mere contract negotiations are insufficient. Material information is generated when it has been concretized to the extent that it holds value significant to a reasonable investor's decision-making, even before it is definitively completed.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "a person recognized as being in a position to readily access and use that corporation's undisclosed material information"}, "factors": ["A position in which one can readily access and use undisclosed material information", "Procedural requirements for the contract to take effect", "Where the contract was made orally", "The time of generation of the material information"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2007Do9769 decided May 13, 2010"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What is the minimum content of agreement needed to recognize that contract negotiations have been converted into a legally binding oral contract?", "batch": "c08", "translatedFrom": "ko"}
{"caseNo": "2011Do10508", "issue": "Can electronic information collected beyond the scope of the warrant, and a confession obtained on the basis thereof, be used as evidence of guilt?", "answer": "Electronic information unlawfully collected and a confession based thereon cannot, in principle, be used as evidence of guilt. Admissibility of evidence exceptionally is determined by comprehensively considering all circumstances, including the content and extent of the procedural violation and the dilution or severance of causation; in this case, that exception is not recognized.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "totality of circumstances", "quote": "Whether evidence collected in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act, and secondary evidence obtained on the basis thereof, is admissible in evidence (in principle, negative), and the criteria for that determination"}, "factors": ["Evidence collected in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act", "Secondary evidence obtained on the basis thereof", "Where an investigative authority obtained a confession of the defendant on the basis of unlawfully seized articles", "Relevance to the criminal suspicion"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court en banc judgment 2007Do3061 decided November 15, 2007"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "After an unlawful seizure, what additional circumstances must exist before the causation between the subsequent confession and the unlawful collection can be regarded as diluted or severed?", "batch": "c08", "translatedFrom": "ko"}
{"caseNo": "2009Do7813", "issue": "Under what circumstances does a loan exceeding the single-borrower lending limit constitute the crime of occupational breach of trust, and may the gains from multiple loans be aggregated?", "answer": "Exceeding the limit alone is insufficient, but if repayment capacity or collateral value is inadequate such that a risk of non-recovery arises, the crime of occupational breach of trust is established, and subsequent recovery does not affect a crime already established. Where the protected legal interest and the form of the offense are identical and the acts constitute a series of acts based on a single criminal intent, the gains are aggregated as a single comprehensive offense (one crime covering repeated acts).", "disposition": {"value": "dismissal", "quote": "The final appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Whether the crime of occupational breach of trust is established merely by the fact of making an excess loan in violation of the single-borrower lending limit provision (in principle, negative) and where the act of making a loan exceeding the single-borrower lending limit constitutes the crime of occupational breach of trust"}, "factors": ["The fact of having made an excess loan in violation of the single-borrower lending limit provision", "An appropriate lending limit taking into account credit standing, among other matters", "Without securing any particular tangible collateral", "A credit loan that Company Gap substantially obtained in the names of the apartment construction project developers"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 2006Do4876 decided June 19, 2008 (en banc judgment)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where the lending limit has been exceeded, if a certain degree of repayment capacity and collateral are secured, may it be concluded that there is no risk of property damage?", "batch": "c08", "translatedFrom": "ko"}
{"caseNo": "2009Do3712", "issue": "Where, after a collateral loan, the registration of the establishment of a maximum amount mortgage is delayed and a lessee first acquires the force as against third parties, how is the amount of damage for breach of trust calculated, and what effect does a calculation error have on the judgment?", "answer": "The amount of damage is the amount by which the remaining collateral value—obtained by deducting the lease deposit bearing the force as against third parties from the market value of the real estate at the time of the loan—falls short of the loan amount. The calculation treating the entire loan amount as damage is erroneous; however, the legitimate amount of damage also falls within the same aggravated punishment range and has no effect on the sentencing in this Case, so the relevant final appeal is dismissed, while the portion concerning another defendant regarding the computation of days of detention before pronouncement of judgment was disposed of by reversal and self-adjudication.", "disposition": {"value": "reversal and self-adjudication", "quote": "The portion of the judgment of the court below concerning the computation, as to Defendant 1, of days of detention before pronouncement of judgment is reversed."}, "standard": {"value": "states requirements", "quote": "The method of evaluating the 'value of the collateral' for calculating the victim's amount of damage where the offense of occupational breach of trust is established through a collateral loan"}, "factors": ["'Value of the collateral'", "Calculation of the amount of damage or gain", "After a lessee has acquired the force as against third parties with respect to that apartment", "Where the registration of the establishment of a maximum amount mortgage has been completed"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 89Do641 decided October 24, 1989"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Even where the corrected amount of damage falls within the same aggravated punishment range, should the judgment of the court below be reversed if there is a possibility that it may affect sentencing?", "batch": "c08", "translatedFrom": "ko"}
{"caseNo": "2009Do13187", "issue": "Where a debtor who agreed to establish a transfer by way of security over shares and received loan money, before delivering the shares, agrees with a third party to establish a transfer by way of security over the same shares and receives loan money, has the debtor commenced the commission of the offense of breach of trust?", "answer": "Absent special circumstances, there is a duty to cooperate in the procedure for delivery of shares for the purpose of the initial creditor's acquisition of the security interest under the transfer by way of security. The act of agreeing with a third party to a duplicative transfer by way of security over the shares and receiving the loan money constitutes commencement of the commission of the offense of breach of trust, as an act closely connected with the breach of that duty of cooperation.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Where, in a state in which actual delivery of the shares to the creditor has not yet been effected, the debtor again agrees with a third party to establish a transfer by way of security over part or all of those shares and receives part or all of the loan money, whether this constitutes commencement of the commission of the offense of breach of trust (affirmative in principle)"}, "factors": ["Agreement to establish a transfer by way of security as the method of delivery of share certificates", "A state in which actual delivery of the shares to the creditor has not yet been effected", "Agreeing again with a third party to establish a transfer by way of security over part or all of those shares", "Receiving part or all of the loan money"], "precedent": {"value": "follows existing precedent", "quote": "Supreme Court Decision 71Do246 decided March 23, 1971; Supreme Court Decision 81Do966 decided July 28, 1981 (Sup. Ct. Bull. 1981, 14222)"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What cases are included among the special circumstances that could negate the duty to cooperate in the creditor's acquisition of the security interest under the transfer by way of security?", "batch": "c09", "translatedFrom": "ko"}
{"caseNo": "2009Da40349", "issue": "In what order are insufficient provisional payments applied to repayment, and under what conditions must the unjust enrichment arising from a revived claim, which could not be filed due to the exercise of the right of avoidance after the meeting of interested parties, be returned?", "answer": "If the provisional payments fall short of the aggregate amount of the principal and delay damages properly payable, they must be applied first to the delay damages and then to the principal, absent special circumstances. The benefit gained by precluding the filing of a revived claim constitutes a common benefit claim, which must be returned on the conditions recognized in the reorganization plan with respect to claims of the same nature, and that right cannot be altered by a plan modification made without the consent of the creditor.", "disposition": {"value": "partial reversal and remand", "quote": "Of the portion of the judgment of the court below in which the defendants lost, the portion concerning the claim for return of the overpaid amount is reversed, and this part of the case is remanded to the Seoul High Court. The remainder of the final appeal is dismissed."}, "standard": {"value": "Application to the facts", "quote": "A case in which the Supreme Court held that a revived claim, being by nature a claim for restitution of unjust enrichment and therefore a common benefit claim, cannot, even where the amended plan provides for a change in its method of repayment, be changed to the effect of extending to the other party absent that party's consent"}, "factors": ["Where the amount of the provisional payments made by the debtor falls short of the aggregate amount of the principal and delay damages properly payable to the creditor", "An action for avoidance filed after the conclusion of the meeting of interested parties convened for deliberation on the reorganization plan", "Where the other party has become unable to exercise the revived claim", "The same conditions as those recognized in the reorganization plan with respect to claims of the same nature as the revived claim", "Absence of the other party's consent thereto"], "precedent": {"value": "follows existing precedent", "quote": "See, e.g., Supreme Court Decision 95Da38127 decided December 12, 1995"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What special circumstances would permit provisional payments to be applied first to the principal rather than to the delay damages?", "batch": "c09", "translatedFrom": "ko"}
{"caseNo": "2008Do6551", "issue": "What are the requirements for the establishment of a conspiratorial joint principal offense against a person who provided accounts and funds for stock price manipulation and solicited investors, and where a sentence of imprisonment and a fine are imposed concurrently for a single crime, may only the sentence of imprisonment be subject to discretionary mitigation?", "answer": "A common design and functional control over the act are required; where the defendant denies the intent, it may be proved by relevant indirect facts or circumstantial facts, and in this case the conduct of providing accounts and funds and soliciting investors is subject to criminal liability as a conspiratorial joint principal offense. However, where a sentence of imprisonment and a fine were imposed concurrently for a single crime and only the sentence of imprisonment was subject to discretionary mitigation without any special provision, this is unlawful.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "states requirements", "quote": "The requirements for the establishment of a conspiratorial joint principal offense and the method of proof where the defendant denies the conspiracy and the intent"}, "factors": ["Where the defendant denies the conspiracy and the intent", "Delivery of a securities account and funds in the defendant's own name", "Where a sentence of imprisonment and a fine are imposed concurrently for a single crime"], "precedent": {"value": "follows existing precedent", "quote": "See, e.g., Supreme Court Decision 96Do3466 decided August 26, 1997 and Supreme Court Decision 2008Do3258 decided July 10, 2008"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where only accounts and funds were provided without soliciting or managing investors, what circumstances are required to recognize functional control over the act?", "batch": "c09", "translatedFrom": "ko"}
{"caseNo": "2007Do7471", "issue": "What do the purpose of inducing misapprehension and the purpose of inducing securities trading in the offense of market manipulation, and the transactions that alter the market price, mean, and how are they determined?", "answer": "Each purpose may coexist with other purposes, and awareness of the possibility is sufficient; there is no need for an actual misapprehension or loss or an actual market price change to occur. The possibility of a market price change and the existence of the purpose are determined by comprehensively considering indirect facts such as the motive and form of the transactions, and in this case the market manipulation is recognized from the stage of accumulation of shares in connection with the asserted acquisition purpose.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "totality of circumstances", "quote": "The meaning and method of determination of the 'purchase or sale of securities that falsely gives the impression that trading in securities is brisk or that alters the market price thereof' as provided in subparagraph 1 of the same paragraph, such as the 'purpose of inducing securities trading'"}, "factors": ["The purpose of inducing the mistaken belief that the market is active and flourishing, or of otherwise causing others to form erroneous judgments", "The purpose of inducing trading transactions", "A purchase or sale of securities that falsely gives the impression that trading in securities is brisk or that alters the market price thereof"], "precedent": {"value": "follows existing precedent", "quote": "See, e.g., Supreme Court Decision 2003Do4320 decided May 11, 2006"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "In share accumulation for an actual corporate acquisition, what combination of indirect facts would suffice to negate awareness of the possibility of a market manipulation purpose?", "batch": "c09", "translatedFrom": "ko"}
{"caseNo": "2007Do6336", "issue": "How is the profit obtained through market manipulation calculated, and to what extent is a joint principal offender who joined in the course of a single comprehensive offense liable?", "answer": "The profit gained from the violating conduct is the net trading profit obtained by deducting the total purchase amount and transaction costs such as commissions and transaction taxes from the total sales amount of the relevant transactions. A person who joined midway is liable only for the acts committed after joining; in this case, where the evidence that the profit obtained after that point reached the threshold amount for aggravated punishment is insufficient, the aggravated punishment provision cannot be applied.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "The scope of criminal liability of a person who participated in the offense as a joint principal offender in the course of a single comprehensive offense (= the acts committed after joining)"}, "factors": ["The profit gained from the violating conduct", "A person who participated in the offense as a joint principal offender in the course of a single comprehensive offense", "Acts committed after joining"], "precedent": {"value": "follows existing precedent", "quote": "See, e.g., Supreme Court Decision 2004Do1465 decided May 28, 2004"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the transactions before and after the joining are interconnected with each other, how specifically should the net trading profit arising from the acts committed after joining be separated and calculated?", "batch": "c09", "translatedFrom": "ko"}
{"caseNo": "2007Da24459", "issue": "Where an insider traded stocks through another person, under what requirements does the insider bear the obligation to return short-swing trading profits?", "answer": "The insider must be the direct party to the transaction, or the acts of the party to the transaction must be attributable to the insider's own acts; actual use of the inside information or intent to obtain a gain is not required. In this case, as the insider was the beneficial account holder of the nominee account and entrusted the trading to the spouse, the spouse's trading was attributed to the insider's acts and the obligation to return was recognized.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "The requirements for falling within the category of an insider who bears the obligation to return short-swing trading profits"}, "factors": ["The purpose of the system requiring the return of short-swing trading profits", "An insider who bears the obligation to return short-swing trading profits"], "precedent": {"value": "follows existing precedent", "quote": "See, e.g., Supreme Court Decision 2003Da60396 decided May 28, 2004"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the insider merely provided funds without entrusting the trading, what circumstances are required to attribute the acts of the party to the transaction to the insider's acts?", "batch": "c09", "translatedFrom": "ko"}
{"caseNo": "2006Do6464", "issue": "When do repeated loans constituting occupational breach of trust become a single comprehensive offense, and are the portion of the loan amount used for interest payments and the loan commission also included in the pecuniary damage?", "answer": "Where the protected legal interest is unitary, the form of the crime is identical, and the acts constitute a series of acts based on a single intent, they constitute a single comprehensive offense. In this case, as the new loans became available for actual use and thereby created the risk of the occurrence of actual pecuniary loss, the entire loan amount, including the amounts later used for interest payments and the necessary expenses related to the loans, constitutes the amount of damage.", "disposition": {"value": "dismissal", "quote": "The final appeals are all dismissed."}, "standard": {"value": "Application to the facts", "quote": "A case in which the Supreme Court held that even where a portion of the new loan amount resulting from an occupational act of breach of trust was used to pay interest on an existing loan or on the new loan, it is not to be excluded from the pecuniary damage of the occupational breach of trust, and that necessary expenses arising in connection with the loan, such as the loan commission, are also included in the amount of pecuniary damage"}, "factors": ["Several occupational acts of breach of trust", "A portion of the new loan amount used to pay interest on an existing loan or on the new loan", "Necessary expenses arising in connection with the loan, such as the loan commission"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court Decision 2005Do5996 decided October 28, 2005"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the new loan amount was actually used to repay the principal of an existing loan, how should the amount of pecuniary damage be calculated?", "batch": "c09", "translatedFrom": "ko"}
{"caseNo": "2006Da58578", "issue": "Where adequate causation between market manipulation and investment losses is assessed by the so-called event study method, how should the event period and the estimation period be set?", "answer": "Absent special circumstances, the date on which the market manipulation commenced is taken as the start date of the event period, and the estimation period must not include a period so old as to decisively impair the reliability of the regression equation or a period preceding a structural change that significantly affected the expected rate of return. In this case, the expert appraisal had problems in setting these periods and was difficult to credit, and adequate causation was not recognized on the basis of other evidence either.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "The method of setting the event period and the estimation period where an analysis utilizing the so-called event study method is used"}, "factors": ["An act of market manipulation in respect of stocks", "Losses suffered by a person who traded in or placed orders for those stocks", "The setting of the event period and the estimation period"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "How far must the estimation period recede from the event period before it should be determined that a decisive problem affecting the reliability of the regression equation has arisen?", "batch": "c09", "translatedFrom": "ko"}
{"caseNo": "2006Da32507", "issue": "Does the right of avoidance, and the claim for return of property based on a right of avoidance already exercised, also cease to exist when the corporate reorganization procedure is concluded?", "answer": "The right of avoidance ceases to exist upon the conclusion of the corporate reorganization procedure. Even if it was exercised during the course of the procedure, if the procedure is concluded before the property is recovered, the claim for return of property and the claim for reimbursement of value also cease to exist.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Where the corporate reorganization procedure is concluded before property is recovered for the company by virtue of a right of avoidance exercised during the course of the reorganization procedure, whether the claim for return of the company's property, etc., which constitutes the effect of the exercise of that right of avoidance, ceases to exist (Affirmative)"}, "factors": ["Conclusion of the corporate reorganization procedure", "A right of avoidance exercised during the course of the reorganization procedure", "Before property is recovered for the company"], "precedent": {"value": "follows existing precedent", "quote": "See, e.g., Supreme Court Judgment 95Da30253 decided October 13, 1995; Supreme Court Judgment 2002Da46058 decided July 22, 2004"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where only part of the recovery of property pursuant to the exercise of the right of avoidance has been effected before the conclusion of the reorganization procedure, how is the attribution of the property already recovered to be determined?", "batch": "c10", "translatedFrom": "ko"}
{"caseNo": "2005Du8092", "issue": "Can the application of an amended ordinance in force at the time of the disposition be restricted on the ground of reliance on the pre-amendment building permit standards?", "answer": "Unless the transitional provisions provide otherwise, the amended statute and ordinance in force at the time of the disposition apply, but whether to restrict the application is determined by comparing the reliance on the former statute and ordinance with the public interest purpose of the amended statute and ordinance. In this case, the reliance on the former ordinance is not of such great value as to warrant protection in comparison with the public interest of curbing disorderly development in natural green zones, and therefore the application of the amended ordinance does not violate the principle of protection of legitimate expectation.", "disposition": {"value": "reversal and remand", "quote": "The judgment of the court below is reversed, and the case is remanded to the Seoul High Court."}, "standard": {"value": "totality of circumstances", "quote": "the people's reliance on the continued existence of the pre-amendment ordinance provision cannot be said to be more worthy of protection than the public interest pursued by the post-amendment ordinance provision, namely curbing disorderly development within natural green zones"}, "factors": ["the people's reliance on the continued existence of the pre-amendment ordinance provision", "curbing disorderly development within natural green zones", "where the transitional provisions do not provide for the scope of application thereof"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court en banc judgment 2003Du12899 decided November 16, 2006, etc."}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where the administrative authority specifically guaranteed the possibility of building under the former ordinance and thereby induced investment, is the application of the amended ordinance restricted on the ground of protection of legitimate expectation?", "batch": "c10", "translatedFrom": "ko"}
{"caseNo": "2005Do9387", "issue": "How is the amount of gain from property purchased at an unduly low price through deception assessed, and is the offense of violating the former Attorney-at-Law Act constituted even where money or valuables are received under the pretext of a solicitation without any actual intent to make a solicitation?", "answer": "The amount of gain is the sum of the values of the property obtained by fraud, and, absent special circumstances, it is assessed not at the low price actually paid but at the price that would have been paid had there been no deception, or at market value. If money or valuables were received for one's own gain under the pretext of a solicitation in a Case handled by a public official, the offense of violating the former Attorney-at-Law Act is constituted even without any actual intent to make a solicitation.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "Where money or valuables are received without any actual intent to make a solicitation in connection with a Case handled by a public official or the like, whether the offense of violating Article 90, subparagraph 1 of the former Attorney-at-Law Act is constituted (affirmative)"}, "factors": ["Where property is purchased at an unduly low price by deceiving the counterparty, thereby obtaining by fraud", "The value of that property", "A Case handled by a public official", "Where money or valuables are received without any actual intent to make a solicitation"], "precedent": {"value": "follows existing precedent", "quote": "See, e.g., Supreme Court Decision 86Do436 decided March 25, 1986"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What special circumstances would warrant assessing the value of the property obtained by fraud otherwise than at the price that would have been paid had there been no deception or at market value?", "batch": "c10", "translatedFrom": "ko"}
{"caseNo": "2005Do5774", "issue": "In multi-level sales, how do non-disclosure of material circumstances and implicit collusion give rise to joint principal offenders in fraud, and how are the amount defrauded and habitualness determined?", "answer": "Where there is a duty to disclose circumstances such that the person would not have transacted had they been disclosed, concealing them constitutes deception, and collusion may be formed by a sequential or implicit meeting of minds. The amount defrauded is the entirety of the delivered property without deduction of the consideration paid, and includes amounts that were in reality returned and reinvested; even absent prior convictions, habitualness is established where a habit of fraud is recognized in light of the number of offenses, the methods used, and the like.", "disposition": {"value": "dismissal", "quote": "All appeals are dismissed."}, "standard": {"value": "states requirements", "quote": "The meaning of 'deception' as a requirement of the offense of fraud, and cases where a duty to disclose under the law is recognized"}, "factors": ["Duty to disclose under the law", "Collusive relationship", "Where part of the consideration has been paid", "The entirety of the property delivered", "Habitualness"], "precedent": {"value": "follows existing precedent", "quote": "See, e.g., Supreme Court Decision 2003Do7828 decided April 9, 2004"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where commissions were deposited into the victim's account but were reinvested with withdrawal or use restricted, may they nonetheless be added to the new amount defrauded?", "batch": "c10", "translatedFrom": "ko"}
{"caseNo": "2005Da22398", "issue": "Even if an act is detrimental to reorganization claim creditors, is it excluded from the scope of exercise of the right of avoidance under the former Corporate Reorganization Act where its reasonableness is recognized?", "answer": "Acts that are socially necessary and reasonable, or unavoidable, such that creditors must exceptionally bear a reduction in assets or unfairness, are not subject to avoidance. Reasonableness is determined in accordance with the principle of good faith and the ideal of equity, taking into consideration the company's assets and business condition at the time, the purpose and motive of the act, the source of the repayment funds, and the creditors' influence, among other factors.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed. The application for litigation succession filed by the defendant litigation succession applicant is dismissed."}, "standard": {"value": "totality of circumstances", "quote": "Criteria for determining the reasonableness of an act"}, "factors": ["Reasonableness of the act", "Requirements for exercise of the right of avoidance under the former Corporate Reorganization Act"], "precedent": {"value": "follows existing precedent", "quote": "See Supreme Court Decision 2001Da78898 decided August 23, 2002"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where there was a possibility of the company's normalization but creditors compelled the provision of security, how is reasonableness determined?", "batch": "c10", "translatedFrom": "ko"}
{"caseNo": "2004Do491", "issue": "How are the subject of the offense of accepting a bribe in breach of trust and the improper solicitation determined, and how are the non-public nature of information reported through speculative press coverage and the profits gained from its use ascertained?", "answer": "The subject of the offense of accepting a bribe in breach of trust is a person who, internally, stands in a fiduciary relationship with respect to the handling of affairs, and the improper solicitation is determined by comprehensively considering the content of the solicitation, the amount of the property, and the form thereof. Information not disclosed in a statutory manner does not lose its non-public nature merely by reason of speculative press reporting, and the profit from use is a net profit calculated after deducting transaction costs, including the related shares held and claims as well, which, absent special circumstances, are each valued based on the time of the last disposition of shares of the same kind and the due date for performance under the agreement.", "disposition": {"value": "dismissal", "quote": "The appeal is dismissed."}, "standard": {"value": "states requirements", "quote": "The meaning of 'a person who handles another's affairs' as the subject of the offense of accepting a bribe in breach of trust, and the grounds for the arising of a fiduciary relationship"}, "factors": ["Grounds for the arising of a fiduciary relationship", "Improper solicitation", "Facts that have been reported speculatively by some of the press", "So long as it has not been made public to the general public pursuant to relevant statutes and regulations", "The profit gained from the violating conduct"], "precedent": {"value": "follows existing precedent", "quote": "See, inter alia, Supreme Court Decision 2002Do1256 decided June 14, 2002, and Supreme Court Decision 2005Do632 decided April 15, 2005"}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "Where performance of a claim for the transfer of shares is uncertain, how is that risk reflected in the valuation of profits gained from the use of non-public information?", "batch": "c10", "translatedFrom": "ko"}
{"caseNo": "2002Da69327", "issue": "Does an obligation to return short-term trading profits arise even for transactions where there is objectively no possibility of using inside information, and is the management control premium excluded from the profits to be returned?", "answer": "If, by reason of the type of transaction, there is objectively no possibility of using inside information from the outset and it is clear that the transaction is not an insider transaction, the system for the return of short-term trading profits does not apply. The management control premium is consideration for the shares themselves in a quantity enabling the exercise of management control, and therefore is not excluded from the profits to be returned.", "disposition": {"value": "reversal and self-adjudication", "quote": "The portion of the judgment in which Defendant lost is reversed, the first-instance judgment in that portion is set aside, and plaintiff's claim corresponding thereto is dismissed."}, "standard": {"value": "states requirements", "quote": "Whether the system for the return of short-term trading profits as prescribed in Article 188, paragraph (2) of the Securities and Exchange Act applies where it is clear that the stock transaction is not a transaction made by an insider (negative)"}, "factors": ["Where it is clear that the stock transaction is not a transaction made by an insider", "management premium"], "precedent": {"value": "cannot be confirmed", "quote": ""}, "burden": {"value": "not addressed", "quote": ""}, "openQuestion": "What specific types of transactions fall under cases where there is objectively no possibility of using inside information from the outset?", "batch": "c10", "translatedFrom": "ko"}