1. As to Defendant 2 and 3’s grounds of appeal

In light of the legislative intent of the Act and subordinate statutes, such as the Elementary and Secondary Education Act, the Enforcement Decree of the Elementary and Secondary Education Act, the regulations on the creation, operation, and accounting of the school development fund, as well as the subject, purpose, procedure, method, etc. of the school development fund, and the operation, use, accounting management, etc. of the school development fund, and in light of the fact that the legislative intent of the Act and subordinate statutes is “to ensure transparency in the creation and use of the fund and eliminate any deficit related to the money and valuables raising, instead of allowing the raising of the fund through the school operation committee in consideration of poor educational circumstances,” in the case of the money contributed to the school development fund under the Elementary and Secondary Education Act, it shall be used only for a specific purpose necessary for school operation, other than for public interest, in light of the substance of the donation, purpose, situation, amount, etc., except in exceptional cases where it can be deemed that it is received for a specific purpose necessary for school operation, and therefore, the act of use other than the prescribed purpose shall be deemed embezzlement in principle (see Supreme Court Decision 2007Do41377, July 222, 20107.

According to the reasoning of the judgment below, the court below found, based on the evidence of employment, that Defendant 2 and Defendant 3 used KRW 30 million of the school development fund to be used only for the purpose of use prescribed by the law, for the design service cost necessary for the repair and expansion of △△ Middle School’s school educational facilities in △△△ Middle School, and determined that even if the expansion of ○○○ School’s corridor was caused to contribute to the convenience and safety of students, it is reasonable to deem that the above Defendants realizing the intent of unlawful acquisition, and that the above Defendants used the school development fund in the design service cost for the expansion of ○○ High School for the expansion of ○○ School’s corridor, since all of the above Defendants were aware of the fact that the above Defendants used it for the design service cost for the expansion of ○○ School Development Fund in the field of occupational embezzlement, and even if the design service contract was concluded in the name of the principal of the school, it is difficult to use it for the school without the consent of the Private School Committee in accordance with the resolution of the school affairs committee.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and contrary to what is alleged in the grounds of appeal, there were no errors of misapprehending the legal principles as to the crime of embezzlement in the course of business.

2. As to the Prosecutor’s Grounds of Appeal

The lower court determined that: (a) Nonindicted 1 and 2’s act of delivering KRW 50 million to the school foundation at the time of the delivery of KRW 20 million to the school foundation under the pretext of supporting the △△ Middle School which cannot be executed with the school development fund of ○○○○○, and Nonindicted 1 and 2’s parents; (b) it cannot be deemed as the school development fund for the ○○○, other than the donations to the school foundation, even if Nonindicted 1 and 2 were to have been born before the above KRW 50 million; (c) it is difficult for the school foundation to view that the school foundation’s act of delivering money to the △△○, which was not a donation to the △○, was not a donation to the school foundation; and (d) Nonindicted 3 and Nonindicted 4, 2009, which was the head of the school foundation that was the school foundation of the △△△ to receive the consent of the parents’ parents from the school foundation that was not a donation of KRW 100,000,00.

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending

3. Conclusion

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

Justices Kim Chang-suk (Presiding Justice)