(1) The intent of unlawful acquisition in the crime of embezzlement refers to the intent that the custodian of another's property intends to dispose of the owner's own property (including rejection of return) without authority contrary to the purpose of the entrustment. Thus, it is not for the custodian's own interest or a third party's interest, but for the disposal of it for the owner's interest, the custodian's intent of unlawful acquisition cannot be recognized unless there are special circumstances (see, e.g., Supreme Court Decisions 65Do735, Oct. 5, 1965; 79Do2171, Oct. 14, 190).

(2) Examining the reasoning of the first instance judgment maintained by the lower court in this case, the first instance court acknowledged the fact that the Defendant entered the monthly salary or retirement allowance payment record in the actual payment amount, and withdrawn the difference and embezzled it, as stated in its reasoning, as a manager of the general affairs of the Hysung Special School who is a foundation, in paying the monthly salary and retirement allowance of teachers with the wage funds owned by the foregoing foundation in the occupational custody, and then recognized the Defendant as the crime of occupational embezzlement.

However, according to the records, the defendant, from the time of investigation into the investigative agency, asserts that from the time of the investigation agency, the above school is less than the fixed number of admission of new students, the school teachers are allowed to recruit new students and use the difference in payment as stated in the above judgment under the understanding of the foundation director and the principal of the school at its expense. In the testimony of the first instance court of Kim Jong-sik who was employed as the above principal at the time, the defendant made a statement to the effect that the above defendant's defense is consistent with the above defendant's defense. In addition, in the witness's testimony of the first instance court and the statement of statement of Kim Ma-ok in the preparation of administrative affairs by the judicial police officer, the teachers of the above school are recognized to have engaged in the recruitment of students as the above defendant's defense and received expenses from the school, and there is no evidence to conclude that the above testimony or statement is not reliable

Nevertheless, the court below recognized that the defendant had the intent to obtain unjust enrichment with respect to the pre-payment of the pre-payment of the above evidence without any evidence by neglecting the determination of evidence, and recognized the facts without any evidence, and there is an error of law by misunderstanding the legal principles as to the intent to obtain unjust enrichment. Therefore, the argument on this point is reasonable.

Therefore, the judgment of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Lee Sung-soo (Presiding Justice)