[공갈·업무상횡령·무고·폭력행위등처벌에관한법률위반(야간·공동협박)·총포·도검·화약류등단속법위반·업무상배임][공2006.12.1.(263),2032]
[1] Where the representative of an organization pays the attorney-at-law's expenses at the organization's expense, the standard for determining whether embezzlement is established for the payment of such expenses
[2] The case holding that the act that the president of a reconstruction association appoints a lawyer as a litigation representative for the claim for damages in the name of an individual and paid the fees at the expense of a reconstruction association constitutes an occupational embezzlement
[3] In case where the president of a reconstruction association pays attorney's fees for a criminal case concerning an individual's illegal act with the funds of a reconstruction association, whether obtaining approval from the director and the board of representatives affect the establishment of embezzlement (negative)
[1] As a matter of principle, attorney fees that can be paid at the expense of an organization are limited to cases where the organization itself becomes a party to a lawsuit, the attorney fees for civil and criminal cases in which the representative of the organization becomes a party to the lawsuit cannot be paid at the expense of an organization. exceptional cases where an organization has a substantial interest in the dispute, but a dispute arises in connection with actions performed by an individual who is in the status of the representative due to legal grounds or other legal procedures, or acts performed lawfully for the sake of a representative or the status of the representative, the pertinent legal dispute may be paid at the expense of an organization only when there is a special need to conduct a lawsuit or respond to a complaint for the interest of the organization in light of the overall circumstances at the
[2] The case holding that the act that the president of a reconstruction association appoints a lawyer as a litigation representative for the claim for damages in the name of an individual and paid the fees at the expense of a reconstruction association constitutes an occupational embezzlement
[3] Since the president of a reconstruction association cannot be deemed to be the business of a reconstruction association to appoint a counsel for a criminal case against one's own illegal act for the president of the association, if he paid his own attorney's fees with the funds of a reconstruction association, it constitutes embezzlement, and even if he obtained approval from the director and the board of representatives in paying the attorney's fees in the above criminal case, it is unlawful to pay the attorney's fees for an individual criminal case against the president of the association who is irrelevant to the execution of the reconstruction association's business, so the above approval does not affect the establishment of embezzlement.
[1] Articles 355(1) and 356 of the Criminal Act / [2] Articles 355(1) and 356 of the Criminal Act / [3] Articles 355(1) and 356 of the Criminal Act
[1] [2] Supreme Court Decision 2002Do235 delivered on May 30, 2003 (Gong2003Ha, 1489) / [3] Supreme Court Decision 89Do2466 delivered on February 23, 1990 (Gong190, 829) Supreme Court Decision 2003Do4735 Delivered on April 27, 2006
Defendant
Defendant and Prosecutor
Attorney Man Jae-in et al.
Suwon District Court Decision 2004No1064 delivered on September 6, 2004
Of the convictions and innocences of the lower judgment, the part of occupational embezzlement as of March 21, 2003 and April 11, 2003 is reversed, and this part of the case is remanded to the Suwon District Court Panel Division. The Prosecutor’s remaining appeals are dismissed.
The grounds of appeal are examined.
1. As to the grounds of appeal by defense counsel
A. Occupational embezzlement of February 21, 2002 and occupational embezzlement of April 29, 2003
In principle, an attorney fee which can be paid at the expense of an organization shall be limited to cases where the organization itself becomes a party to a lawsuit. Therefore, the attorney fee for a civil and criminal case in which a representative of an organization is not allowed to be paid at the expense of an organization. An exceptional case where a substantial interest in a dispute exists in an organization but is a party to a lawsuit or other legal procedure, or where a dispute arises in relation to an act that is performed lawfully for legal reason, or an act that is performed lawfully for a representative, etc., the relevant legal dispute is deep in relation to the organization's business, and in light of the overall circumstances at the time, the attorney fee may be paid at the expense of an organization only when there is a special need to conduct a lawsuit
According to the evidence duly admitted by the court of the first instance as cited by the court below, the point of occupational breach of trust as of February 21, 2002 is the case where the non-indicted 1 appointed an attorney as a legal representative and paid the appointment fee at the expense of the reconstruction association in order to file a claim for damages against the report in the name of the defendant in the name of the non-indicted 1, which damages the defendant's reputation. The point of occupational embezzlement as of April 29, 2003 is the case where the non-indicted 1 claims that there was a false accusation or defamation of the defendant's individual. In light of the above legal principles, such a lawsuit is the case where the non-indicted 1 appointed a lawyer as a legal representative, and it cannot be found that there is a special necessity that the lawsuit should be conducted at the expense of the association for the light reconstruction association (hereinafter "association"), and therefore, the judgment of the court below that found the defendant guilty of this part of the facts charged is just and there is no violation of law
B. Violation of the Punishment of Violences, etc. Act, violation of the Control of Firearms, Swords, Explosives, etc. Act, and violation of each order
According to the evidence duly admitted by the court of the first instance as cited by the court below, the court below's finding the defendant guilty of violation of the Punishment of Violences, etc. Act, violation of the Control of Firearms, Swords, Explosives, etc. Act, and violation of the Control of Firearms, Swords, Explosives, etc. Act shall be justified in addition to the ground for ex officio reversal, and there is no violation of the rules of evidence
2. As to the Prosecutor’s ground of appeal
(a) Points of conflict;
In light of the records and the reasoning of the judgment below, we affirm the judgment of the court below that there is no evidence that the defendant received KRW 20,000 from the defendant by threatening the non-indicted 2, and there is no violation of the rules of evidence as to the conflict of interest, contrary to the prosecutor's grounds of appeal
B. The point of occupational embezzlement of March 21, 2003 and April 11, 2003
(1) Summary of the facts charged and the judgment of the court below
On March 21, 2003, the gist of this part of the facts charged is as follows: (a) the Defendant did not cooperate in all of his duties by means of delaying the contract for the appointment of a certified judicial scrivener for the registration of trust, etc. if he did not know about the reconstruction agent; and (b) the Defendant did not file a complaint by Nonindicted 3, 1,000 won, which included 20,000 won from the actual representative of the above agent; and (c) the Defendant could not be found guilty of the above facts charged by the Defendant’s embezzlement of 20,000 won under the name of the head of the National Bank in the name of the above association, as it is hard to say that the above facts charged were stated in the judgment of the court below; and (d) the Defendant could not be found guilty of the above facts charged by 30,000 won under the name of the head of the association; and (e) the Defendant could not be found guilty of the above facts charged by borrowing from Nonindicted 3 at the expense of the Association on March 18 of the same year.
(2) However, we cannot agree with the judgment of the court below.
Although not guilty of the facts charged in the instant case has to be pronounced on the grounds that there is no evidence to find it guilty (see the above paragraph (a)). However, by comparing the facts recorded in the legal principles as to attorney's fees for representative in the instant case 1. A., the contents of the facts charged and the facts charged are not related to lawful performance of duties as the president of a reconstruction association, but merely about an act of unlawful conduct by the president of a association, and it does not affect the performance of duties of a reconstruction association by being detained by the president of a association in relation to an individual's corruption, even though it does not affect the execution of duties of a reconstruction association due to lawful performance of law against the individual. Thus, even if there is no clear suspicion of the facts charged and there is a main purpose to obstruct the performance of duties of the president of the association, it cannot be deemed that the appointment of counsel of the said criminal case for the president of the association is not affected by the resolution of the board of representatives of 201.3.6.
(3) Nevertheless, the court below determined that the crime of occupational embezzlement is not established only with the above reasons presented by it. Accordingly, the court below erred by misapprehending the legal principles of occupational embezzlement, by failing to exhaust all necessary deliberations in violation of the rules of evidence, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. Therefore, the ground of appeal pointing this out is with merit.
3. The decisions are made ex officio;
The court below found the defendant guilty by applying Article 2(2) and (1) of the Punishment of Violences, etc. Act and Article 283(1) of the Criminal Act prior to the amendment (amended by Act No. 7891 of March 24, 2006; hereinafter the same shall apply) with respect to the violation of the Punishment of Violences, etc. due to at night intimidation in the judgment of the defendant. However, the "Act on the Punishment of Violences, etc." amended and enforced by Act No. 7891 of March 24, 2006, deleted the part of aggravated punishment of the person who committed the crime under Article 283(1) of the Criminal Act at night under Article 2(2) of the former Act, and this part of the court below that applied the former Act cannot be upheld and the remaining part of the crime under the former part of Article 37 of the Criminal Act cannot be relieved.
4. Conclusion
Therefore, the guilty part of the judgment of the court below and the not guilty part of the judgment of the court below as of March 21, 2003 and April 11, 2003 are reversed, and this part of the case is remanded to the court below for a new trial and determination. The prosecutor's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jeon Soo-ahn (Presiding Justice)