[2] In a case where a school foundation's fundamental property for profit was voluntarily transferred to school expenses accounts, but the fact was discovered and then the same amount was returned to the school expenses accounts again from the school expenses accounts to the corporate expenses, the case holding that the intent to obtain unlawful acquisition of embezzlement is recognized

1. As to the Prosecutor’s Grounds of Appeal

A. Article 13(2)2 of the Enforcement Decree of the Private School Act provides that “Expenses for facilities and equipment directly necessary for school education” as items for school expense accounts. In light of Article 29 of the former Private School Act (amended by Act No. 7802, Dec. 29, 2005); Article 13 of the Enforcement Decree of the Private School Act; Articles 25 and 36 of the Financial and Accounting Rules, the accounts of school juristic persons are divided into school accounting and corporate accounting; inter alia, revenues belonging to school expense accounting are not transferred or lent to other accounts as a result of collecting admission fees and tuition from the school. It strictly limits the use of such funds by the school juristic persons, which are not subject to establishment approval of the school juristic persons, or by the school juristic persons themselves for other purposes than establishment approval of the school juristic persons according to Article 20 of the Enforcement Decree of the Private School Act (see, e.g., Supreme Court Decision 200Du17060, Mar. 26, 201).

B. According to the records, while the defendant was in office as the secretary general of the Daegu Arts University operated by the National Institute of Education and Human Resources Development around April 2003, he received an order to pay 757,214,000 won out of 757,214,000 won out of 757,214,000 won as the basic property for profit of the school foundation without the resolution of the board of directors and the permission of the competent authorities, and to correct the remainder as the operating expenses of the school foundation. However, the defendant did not have the ability to implement the order. However, in collusion with the chief director of the above school foundation, the defendant voluntarily transferred 757,214,00 won out of the above school foundation's school expense accounting to the corporate account of the above school foundation. Examining these facts in light of the aforementioned legal principles, the defendant's arbitrary transfer of 70,000 won from the school expense accounting to the school foundation's basic property for profit to the school foundation's basic property for restitution, and thus, it cannot be exempt from the corporate foundation's acquisition of unlawful accounting.

Nevertheless, the court below sentenced not guilty of this part of the facts charged on the ground that the mere fact that it transferred revenues belonging to school expenses accounts to other accounts does not constitute embezzlement. The court below erred by misapprehending the legal principles on embezzlement due to exclusive use of school expenses accounts, or by misunderstanding facts in violation of the rules of evidence, thereby affecting the conclusion of the judgment. The prosecutor's grounds of appeal on this point are with merit.

The Supreme Court precedents cited by the court below are different from those applied to this case.

2. As to the Defendant’s grounds of appeal

The defendant's state appointed defense counsel submitted a statement of grounds for appeal on the premise that the defendant appealed against the judgment of the court below. However, the defendant did not appeal against the judgment of the court below, and it is obvious that only the prosecutor appealed against the acquittal part of the court below's reasoning. Thus, the defendant's grounds for appeal by

3. Conclusion

Therefore, the non-guilty portion of the judgment of the court below (the part of embezzlement by the exclusive use of school expenses accounts) cannot be maintained as it is. The embezzlement by the exclusive use of school expenses accounts of this case is in a commercial concurrent relationship with the crime of violation of the Private School Act which the court below found guilty. Since the crime of violation of the Private School Act was sentenced as one of the concurrent crimes of the remaining crimes of occupational embezzlement and the former part of Article 37 of the Criminal Act which the court below found guilty, the whole judgment of the court below is reversed and the case is remanded to the court below for a new trial

Justices Park Si-hwan (Presiding Justice)