[2] The case holding that where the representative director of the company and the accounting director withdrawn corporate funds from the corporate fund through an irregular accounting, and deposited and managed them into the borrowed account, since the above act alone cannot be deemed to have clearly expressed the intent of unlawful acquisition in light of the management status of the above funds, the funds deposited into the above withdrawn corporate fund or borrowed account does not constitute "criminal proceeds" under the Act on Regulation and Punishment of Criminal Proceeds Concealment

[3] Whether it is reasonable for an appellate court to determine only unfair sentencing in cases where the defendant only considered the grounds for appeal of unfair sentencing and the appellate court claimed a mistake of facts or a misapprehension of legal principles (affirmative with qualification)

[2] The case holding that, in case where the representative director of a company and the accounting director withdrawn corporate funds through an irregular accounting, and deposited and managed them into the borrowed account, since the above act alone cannot be deemed to have clearly expressed the intent of unlawful acquisition in light of the management status of the above funds, the funds deposited into the above withdrawn corporate funds or borrowed account does not constitute "criminal proceeds" under the Act on Regulation and Punishment of Criminal Proceeds Concealment.

[3] In a case where the defendant took the grounds for appeal of unfair sentencing as the grounds for appeal, and the defendant asserted misconception of facts or misapprehension of legal principles in the appellate court, but such assertion did not affect the judgment due to the lack of reasons, the appellate court's decision on the issue of unfair sentencing is justifiable without separately determining the mistake of facts

1. As to the prosecutor's appeal

"Criminal proceeds" which is the object of the crime of concealment and concealment of criminal proceeds, etc. under Article 3 of the Act on Regulation and Punishment of Criminal Proceeds Concealment (hereinafter "Criminal Proceeds Concealment") means "property generated by a criminal act in heavy crimes or property acquired as remuneration for such criminal act" under Article 2 subparagraph 2 (a) of the Criminal Proceeds Concealment Act. It can only be "criminal proceeds" under Article 3 of the Act only when the object of the crime in question is possible to be specified when the criminal act in question has been committed. Thus, in the case of a serious crime under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, the property generated by the crime in question can only be deemed as criminal proceeds only when the crime in question has been committed on duty, and even when it has not yet arrived at, it cannot be deemed as "criminal proceeds" under the above Act.

In addition, embezzlement in the crime of embezzlement refers to any act that realizes the intention of unlawful acquisition, and it is established when there is an objective act that can be perceived from the outside of the intention of unlawful acquisition (see Supreme Court Decision 2004Do5904, Dec. 9, 2004). The intention of unlawful acquisition refers to the intention to dispose of another person's property in violation of his/her occupational duty, such as the actual or legal possession of another person's property, for the purpose of pursuing his/her own or a third party's interest, and the fact that there was embezzlement in the act of realizing the intention of unlawful acquisition should be proved by strict evidence with probative power that makes the prosecutor feel a reasonable doubt to the extent that there is no such evidence, and even if there is no doubt about the defendant's guilt, it shall be determined as the defendant's interest (see Supreme Court Decision 97Do1962, Feb. 13, 198).

In light of the records in this case, if it is clearly revealed that Defendant 2 conspired with Defendant 1, etc., in collusion with Defendant 1, etc., to withdraw funds from the accounts of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”), and keep funds in the borrowed account, etc., and that the above Defendants were made for the purpose of personal exploitation by reducing corporate funds from the beginning to Nonindicted Co. 1, not from the beginning, the creation itself can be deemed to have realized the intention of unlawful acquisition. However, in this case, since the presiding official of the raising funds was Defendant 1 who is the representative director of Nonindicted Co. 1 and the above Defendant 1 finally managed and approved the execution of the funds, it seems sufficient to view the funds as still under the management of the corporation, and there is insufficient evidence to support that the Defendants used the funds individually, and thus, the above part of the funds was not included in the amount of embezzlement, and there is no reasonable doubt that the Defendants’ act of withdrawing funds was not included in the amount of embezzlement, in light of the legal principles as seen earlier.

Therefore, the court below is just in holding that the defendants' act of replacing and issuing cash as a check or account transfer between borrowed accounts does not constitute "criminal proceeds" under the Criminal Proceeds Act, on the grounds that the funds that the defendants withdrawn through the changed accounting accounts and the funds under management are not yet included in the stages prior to the establishment of embezzlement crime, and that the defendants' act of transferring cash as a check or account transfer between borrowed accounts is deemed to constitute "criminal proceeds" under Article 3 (1) 2 and 3 of the Criminal Proceeds Act, and there is no error in the misapprehension of legal principles as to criminal proceeds or embezzlement, as alleged in the grounds of appeal by the prosecutor.

Furthermore, the court below's decision is based on the judgment that the funds created as above cannot be deemed to constitute "criminal proceeds" on the premise that all the facts charged of the violation of the Criminal Proceeds Act are common to the facts charged of the violation of the Criminal Proceeds Act. Thus, the court below's decision that all individual facts charged cannot constitute criminal proceeds and ruled it not guilty. Thus, the ground of appeal that the court below's failure to make a separate decision on the individual facts charged, and thus,

2. As to Defendant 2’s appeal

The appellate court may decide ex officio on the grounds affecting the judgment, even in cases where the grounds for appeal are not included in the statement of grounds for appeal, but if the defendant only considered the grounds for appeal, as in this case, and the defendant alleged mistake of facts or misapprehension of legal principles in the appellate court, and such assertion did not affect the judgment on the grounds for lack of reason, it is justifiable to decide on the issue of unfair sentencing without separately deciding on the mistake of facts or misapprehension of legal principles (see Supreme Court Decision 96Do2076, Nov. 8, 1996).

According to the records in this case, Defendant 2’s defense counsel made a pleading to the effect that he is partially innocent, claiming a misunderstanding of legal principles and a misunderstanding of facts, which was not considered as the ground for appeal at the beginning of the original trial court, and Defendant 2, as the ground of appeal, has committed an unlawful act of denying the judgment of the court below as to the above misunderstanding of legal principles and misunderstanding of facts, which are similar to the defense counsel’s assertion in

Based on the evidence duly adopted and examined by the first instance court and the lower court, the part of the indictment that was embezzled under the name of so-called “public offering for the sake of the business of the company” was based on the above allegations in the grounds of appeal, and ① The fact that Nonindicted Company 1’s funds were deposited in cash, as stated in the facts charged, is obvious in the record, and even if Defendant 2 did not provide evidence about its use, it is merely merely to state the place of use of the embezzlement as stated in the Defendant’s change, and ultimately, it can be inferred that Defendant 2 embezzled the funds with the intention of unlawful acquisition (see Supreme Court Decision 201Do5459, Jul. 26, 2002). The part of the indictment that was purchased by Nonindicted Company 2 for the purpose of preventing the insolvent of Nonindicted Company 1’s company’s funds as well as the part of the indictment that was purchased by Nonindicted Company 2 as an affiliate of the company’s funds for the purpose of embezzlement, and thus, it cannot be seen that the part of the indictment was only for the purpose of Defendant 1’s own funds.

Therefore, the court below is just in holding that there is no error in the misapprehension of legal principles affecting the judgment of the court of first instance or in mistake of facts that found Defendant 2 guilty of all the crimes of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes due to occupational embezzlement as stated in the judgment of the court below, and there is no error in the misapprehension of legal principles as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes.

3. Conclusion

Therefore, all appeals by a prosecutor and Defendant 2 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)