[2] The amount of embezzlement in a case where one party embezzleds his/her business property without any settlement of profits and losses between the partners

1. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

Since the business property belongs to the partnership of the partner, as long as the partnership relationship exists, the partner does not have the right to dispose of his/her share of the business property at his/her own discretion, and if he/she arbitrarily consumess his/her share of the proceeds acquired from the disposition of the business property at his/her own discretion or during his/her custody, he/she cannot be exempted from the crime of embezzlement (see Supreme Court Decision 81Do277 delivered on September 28, 1982, etc

In addition, if the settlement of profits and losses between partners was not made, a partner does not have the right to dispose of the partnership property belonging to the partner's own partnership property at his own discretion. Thus, if a partner embezzlements at his own discretion during the custody of the partnership property, the partner bears the responsibility for the crime of embezzlement against the whole amount embezzled at his own discretion regardless of the ratio of shares (see Supreme Court Decision 2000Do3013, Nov. 10, 200).

According to the reasoning of the judgment below, the court below acknowledged the facts that the non-indicted corporation was in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement). The non-indicted corporation 1 and the victim non-indicted corporation 2 (hereinafter "victim corporation") agreed on the joint business agreement between the non-indicted corporation 1 and the victim company in relation to the joint business agreement of this case and agreed on the return of principal amount of 15 billion won, and agreed on the joint business agreement between the non-indicted corporation 1 and the victim company, and agreed on the joint business agreement between the non-indicted corporation 1 and the non-indicted corporation for the purpose of distributing the profits of the non-indicted corporation to the non-indicted corporation and the non-indicted corporation for the purpose of collecting the profits of the non-indicted corporation and the non-indicted corporation's share in the contract of this case. The non-indicted corporation's share in the above joint business agreement should not be deemed to exist as part of the agreement of the non-indicted corporation and the non-indicted corporation's share in the contract of this case.

In light of the records and the above legal principles, the above judgment of the court below is just and there is no error in the misapprehension of legal principles as to partnership or partnership business relations as alleged in the grounds of appeal.

2. As to fraud

The court below affirmed the judgment of the court of first instance that convicted the victim non-indicted 6 on the grounds that it is reasonable to deem that the crime of fraud of this case committed by the defendant was committed under the name of several companies actually operated and that the defendant acquired the shares of the shareholders of the non-indicted 5 corporation, which was a listed company in excess of the debt to be exempted from the failure to raise the total amount of the purchase price, but did not have sufficient means to pay the purchase price. In light of the records, the judgment of the court below is just and there is no violation of the rules of evidence as alleged in the grounds of appeal.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)