Open Decision Ledger · Economic crime
Calculation of the Amount of Damage for Breach of Trust Involving Share Purchases and Acquisition of New Shares, and Whether a Miscalculation of the Gain Affects the Judgment
Translated from the Korean original. Read the Korean
Supreme Court, June 28, 2012, 2012Do2623 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 특정경제범죄가중처벌등에관한법률위반(사기)·특정경제범죄가중처벌등에관한법률위반(배임)·증권거래법위반
Official text on the National Law Information Center
Question
How is the amount of damage calculated for the offense of breach of trust caused by purchasing shares at an excessive price or acquiring new shares of a company whose substantive value is zero, and does an error in calculating the gain affect the outcome of the judgment if the applicable range under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes remains the same?
Holding
Unless there are special circumstances, the amount of damage from purchasing shares at an excessive price is the difference between the actual purchase price and the fair value, and where new shares of a company whose substantive value is zero are acquired at face value, the entire acquisition price constitutes the amount of damage. The Supreme Court held that even if there is an error in the calculation of the gain, the judgment result is not affected where the correct amount falls within the same subparagraph of Article 3, paragraph (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and therefore dismissed the final appeals of both parties.
Points at issue, verbatim
주식의 실질가치가 0인 회사가 발행하는 신주를 액면가격으로 인수하는 경우의 손해액 범위
Unofficial English translation
the range of the amount of loss where new shares issued by a company whose substantive value is 0 are subscribed at face value
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Form of the test
Existing test applied Read from the decision
원심의 위와 같은 판단은 앞서 본 법리에 비추어 수긍할 수 있고
Unofficial English translation
The above finding of the court below can be affirmed in light of the legal principle examined above, and
Factors
- 주식의 매수와 관련한 배임죄에서 손해액을 산정하는 방법
- 주식의 실질가치가 0인 회사가 발행하는 신주를 액면가격으로 인수하는 경우의 손해액 범위
- 비상장주식의 거래와 관련한 배임죄에서 손해액 산정을 위하여 주식의 적정가액을 평가하는 방법
- 그 잘못이 같은 법조항을 적용한 판결 결과에 영향을 미치는지 여부
Unofficial English translation
• The method of calculating the amount of loss in the offense of breach of trust related to the purchase of shares
• The range of the amount of loss where new shares issued by a company whose substantive value is 0 are subscribed at face value
• The method of evaluating the appropriate value of shares in order to calculate the amount of loss in the offense of breach of trust related to the transaction of unlisted shares
• Whether such error affects the outcome of the judgment applying that provision
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2004. 6. 24. 선고 2004도520 판결 참조
Unofficial English translation
see Supreme Court Decision 2004Do520 decided June 24, 2004
Decisions referred to
[1][3] 대법원 2005. 4. 29. 선고 2005도856 판결(공2005상, 902), 대법원 2007. 2. 8. 선고 2006도483 판결(공2007상, 456) / [1] 대법원 2009. 10. 29. 선고 2008도11036 판결(공2009하, 2048) / [2] 대법원 2004. 6. 24. 선고 2004도520 판결(공2004하, 1266), 대법원 2008. 5. 8. 선고 2008도484 판결(공2008상, 866), 대법원 2009. 7. 23. 선고 2007도541 판결(공2009하, 1454) / [4] 대법원 1989. 10. 24. 선고 89도641 판결(공1989, 1828), 대법원 2009. 7. 23. 선고 2009도3712 판결, 대법원 2011. 6. 30. 선고 2011도1651 판결(공2011하, 1574)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
In what circumstances are special circumstances recognized that require a management premium to be added in calculating the fair value of shares?
We will review this reading again if the ranges of gain under Article 3, paragraph (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes are amended, or if the precedents on the method of valuing unlisted shares change.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
Cross-checked against an independent reading by another AI lineage (GPT-6 Astra), which read only the original text without seeing the first reading, 6 of the 8 axes agreed, and the readings diverged on Axis 4 (Form of the test) and Axis 8 (Open question and revisit condition).
Axis 4 (Form of the test): Primary “Application to the facts” vs Independent “Elements stated”
Because the original text addresses both the method of assessing the amount of damage and the effect of a calculation error on the outcome of the judgment, the first reading may place weight on the application that the judgment is maintained after correction of the amount, while the independent reading may place weight on the general elements for calculation and for determining error.
주식의 매수와 관련한 배임죄에서 손해액을 산정하는 방법Axis 8 (Open question and revisit condition): Primary “In what circumstances are special circumstances recognized that require a management premium to be added in calculating the fair value of shares?” vs Independent “Where several rational valuation methods are applied to unlisted shares for which there is no instance of a normal transaction and the results differ, which valuation figure must be adopted?”
The first reading asks about the special circumstances requiring a management premium to be added, while the independent reading asks about the criteria for selecting the valuation figure when the results of several rational valuation methods differ.
주식의 실질가치가 0인 회사가 발행하는 신주를 액면가격으로 인수하는 경우의 손해액 범위Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The court below regarded the financial statements for fiscal year 2006 as false and found that the defendant had awareness of the possibility, and recognized as the respective amounts of damage the entire sum paid under the heading of CI usage fees, the difference between the share purchase price and the actual market price, and KRW 1,000,000,000, the amount of participation in a paid-in capital increase in which new shares of Non-indicted 5 Co., Ltd., with a per-share value of KRW 0, were acquired at an issue price of KRW 5,000. It found the defendant not guilty with respect to the fraudulent accounting for fiscal year 2005, and with respect to the purchase of unlisted shares it acknowledged that a gain arose but held the defendant not guilty as to the specific amount of gain of KRW 768,000,000 for lack of proof, thereby recognizing the gain as KRW 1,222,707,500.
Supreme Court standard: The Supreme Court approved all of the findings of the court below in light of the existing legal principle concerning the calculation of the amount of damage. As to the amount of gain on unlisted shares contested by the prosecution, it held that since the gain already recognized by the court below exceeds KRW 500,000,000, the same falls under Article 3, paragraph (1), subparagraph 2 of the said Act even if KRW 768,000,000 is added, and that there is no possibility of any effect on sentencing, and therefore rejected the grounds for final appeal.
Distinguishing conditions
- Where there are special circumstances requiring a management premium borne by the shares to be added in calculating their fair value
- Where there is an instance of a normal transaction in unlisted shares that properly reflects their objective value in exchange, such that the transaction price must be regarded as the market price
- Where, if the correct amount of gain were reflected, the case would fall under a different subparagraph of Article 3, paragraph (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes or the gain could affect sentencing
Record verification notes
Before relying on the theory that the entire amount constitutes the damage, one must first check whether the substantive value of the company's shares was in fact zero, and whether a rational valuation method reflecting transaction precedents, industry characteristics, and the like was used in assessing the fair value.
From the official text
Points at issue
[1] 주식의 매수와 관련한 배임죄에서 손해액을 산정하는 방법 [2] 배임죄에서 ‘재산상의 손해를 가한 때’의 의미 및 주식의 실질가치가 0인 회사가 발행하는 신주를 액면가격으로 인수하는 경우의 손해액 범위 [3] 비상장주식의 거래와 관련한 배임죄에서 손해액 산정을 위하여 주식의 적정가액을 평가하는 방법 [4] 배임죄의 손해액이나 이득액 계산에 잘못이 있더라도 올바른 금액 또한 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 각 호에 해당하는 경우, 그 잘못이 같은 법조항을 적용한 판결 결과에 영향을 미치는지 여부(소극)
Unofficial English translation
[1] The method of calculating the amount of loss in the offense of breach of trust related to the purchase of shares [2] The meaning of 'the time when pecuniary loss is inflicted' in the offense of breach of trust, and the range of the amount of loss where new shares issued by a company whose substantive value is 0 are subscribed at face value [3] The method of evaluating the appropriate value of shares in order to calculate the amount of loss in the offense of breach of trust related to the transaction of unlisted shares [4] Whether, even if there is an error in the calculation of the amount of loss or the amount of gain in the offense of breach of trust, where the correct amount also falls under each subparagraph of Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, such error affects the outcome of the judgment applying that provision (negative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Provisions referred to
[1] 형법 제355조 제2항, 제356조 [2] 형법 제355조 제2항 [3] 형법 제355조 제2항 [4] 형법 제355조 제2항, 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항
Read 2026-10-16 · Cross-read 2026-10-16. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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