(a) Public prosecutor (not guilty part of the judgment of the original court);

In order to pay a fine imposed on himself and Nonindicted 4, the Defendant arbitrarily consumed, embezzled, and evidence to support this is sufficient. Nevertheless, the lower court acquitted the Defendant on the ground that there is no evidence to acknowledge it. The lower court erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment.

B. The defendant (the guilty part in the original judgment)

(1) misunderstanding of facts

Although the defendant was not in the position of a person who keeps the special repair reserve of this case, the court below accepted this part of the facts charged and convicted the defendant. The judgment of the court below is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

2) Legal principles

The Defendant spent the special repair reserve of this case as structural diagnosis expenses and attorney fees through lawful procedures, such as the resolution of the council of occupants' representatives and the report to the competent authorities, etc., and the amount paid as above was used for the occupants of the apartment of this case. As such, the Defendant did not have the intent of unlawful acquisition, and the above act of the Defendant constitutes a justifiable act that does not violate social rules. Nevertheless, the lower court accepted this part of the charges and convicted the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on the intention of unlawful acquisition or legitimate act, which affected the conclusion of the judgment.

2. Determination

A. Determination of the Prosecutor’s assertion

1) Summary of this part of the facts charged

The Defendant, from March 200 to March 2002, from October 2003 to December 16, 2010, worked as the president of the council of occupants’ representatives of the instant apartment from around December 2003 to around December 16, 201, took overall charge of collecting and executing litigation costs from occupants under the pretext of using them in the lawsuit with Nonindicted Incorporated Company 1, while keeping the above litigation costs (hereinafter “litigation costs”).

A) Around May 2008, the Defendant had the officer of the council of occupants’ representatives and Nonindicted 4’s Jeonju District Court of Seoul District Court of 2008Da1023, a fine of KRW 2,00,000 in the cost of lawsuit. On May 29, 2008, the Defendant had the general secretary Nonindicted 5 pay the said fine of KRW 2,00,000 in the cost of lawsuit in custody to Nonindicted 4 in the cost of lawsuit. The Defendant embezzled it for business purpose by having the officer of the council of occupants’ representatives and Nonindicted 4 pay the said fine of KRW 2,00,000 in the cost of lawsuit in custody.

B) On September 16, 2009, the Defendant was sentenced to a fine of KRW 500,000 on the charge that the said Defendant damaged Nonindicted 6’s reputation, and was sentenced to a fine of KRW 500,000 for the Defendant’s personal fine in the litigation cost. On September 16, 2009, the Defendant had a general manager Nonindicted 5 pay KRW 500,000 from the litigation cost under custody, and embezzled it for business purpose.

2) Determination

A) The point of occupational embezzlement of May 29, 2008

In full view of the various circumstances as stated in its reasoning, the court below acquitted the defendant on the ground that the defendant's custody of KRW 2,00,000 paid to the non-indicted 4 on the part of the non-indicted 4 in accordance with the monetary consignment agreement that was concluded separately between the non-indicted 4 and the council of occupants' representatives and returned to the non-indicted 4 upon the termination of the above agreement. Thus, the evidence submitted by the prosecutor alone is insufficient to acknowledge that the defendant embezzled litigation costs as stated in this part of the facts charged, and there is no other evidence to acknowledge it. Considering the reasoning for innocence in comparison with the record, the judgment of the court below is just and acceptable, and there is no error of mistake of facts as pointed out by the prosecutor.

B) The point of occupational embezzlement of September 16, 2009

In full view of the various circumstances as stated in its holding, the court below ruled the defendant not guilty on the ground that the defendant voluntarily withdrawn the amount from the litigation cost management account and paid the fine of the defendant, or there is no possibility that the defendant paid the fine with the money received separately from the defendant. Thus, the evidence submitted by the prosecutor alone is insufficient to recognize that the defendant embezzled the litigation cost as stated in this part of the facts charged, and there is no other evidence to acknowledge it. In full view of the reasoning of the judgment below compared with the record, the judgment of the court below is just, and there is no error of law of mistake of facts as pointed out by the prosecutor.

C) Sub-determination

Therefore, the prosecutor's argument is without merit.

B. Judgment on the defendant's assertion

1) Judgment on the assertion of mistake of facts

In the judgment of the court below, the defendant made the same argument as the reasons for appeal, and the court below rejected the above argument in detail under the title of the judgment on the defendant and his defense counsel among the reasons for the judgment. If the judgment of the court below is examined closely by comparing the judgment of the court below with the records, it can be sufficiently recognized that the defendant was in the position of the person who keeps the special repair reserve fund of this case, so the judgment of the court below is just, and there is no error of law of misunderstanding of facts as pointed out by the defendant. Therefore

2) Judgment on the misapprehension of legal principles

An act of using funds for purposes other than the purpose of being entrusted with a limited amount of funds by others is not only derived from the personal purpose, but also from the personal purpose of the entrusted person, and even if the entrusted person is above the entrusted person, the act of using funds itself constitutes embezzlement as it realizes the intent of unlawful acquisition (see Supreme Court Decision 2003Do4732, Aug. 20, 2004), and even if a resolution was passed by the general meeting of shareholders, the board of directors, the board of directors, etc. on illegal budgetary expenditure, such act of embezzlement does not interfere with the establishment of embezzlement, and the act of embezzlement cannot be justified on the ground that it is an execution of budget in accordance with such resolution (see Supreme Court Decision 2003Do4735, Apr. 27, 2006).

In light of the above legal principles in this case, according to the evidence duly adopted and examined by the court below, the defendant can be found to have used the special repair reserve of this case, the purpose of which is strictly restricted by the apartment management rules of this case as structural diagnosis expenses and attorney fees, so even if the defendant used the special repair reserve of this case as mentioned above through the resolution of the council of occupants' representatives or as a result, the above use of the special repair reserve of this case is dismissed by the tenant who entrusted the special repair reserve of this case, it cannot be deemed that the defendant did not have any intention of unlawful acquisition, and further, the defendant's act does not constitute a justifiable act that does not violate the social rules. Therefore, the defendant's assertion of legal principles is

3) Sub-decisions

Ultimately, the defendant's assertion is without merit.

3. Conclusion

Therefore, the appeal by the defendant and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Park Jong-won (Presiding Justice)