corporate embezzlement in the name of the partially modified crime

Defendant shall be punished by a fine of KRW 5,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

The defendant shall be ordered to pay an amount equivalent to the above fine by provisional payment.

The prosecutor's appeal on the embezzlement of the amount equivalent to the graduate photograph price in the judgment of the court below, the admission fee for the Kigymart water play and the embezzlement of vehicle rent shall be dismissed.

The defendant is a person who operates ‘D Child Care Center' and ‘F Child Care Center' in Dong Young-si.

(a) Embezzlements equivalent to personnel expenses for drivers;

While the Defendant was in custody of childcare fees from the guardians of infants registered in the D childcare center, the Defendant’s husband G was not working as the operator of the said D childcare center on January 26, 201, even though he was not working as the operator of the said D childcare center, and was paid KRW 700,000 to G as salary in the name of G’s salary in the name of G’s salary in the B’s influence on January 26, 201, from that time, until August 27, 2013, the Defendant embezzled the amount of KRW 15,100,000 as salary for 28 times, such as the list of crimes in attached Form 1.

(b) Embezzlements equivalent to four premiums;

While the Defendant, as an operator of a D childcare center, was in custody of childcare fees from the guardians of infants registered in the D childcare center, he embezzled the amount of money owned by the said guardian, the victim, by paying KRW 80,000 as the national pension premiums for the employment of G in the form of D childcare center in the D childcare center on August 2010, even though G had not been employed as an operator of the D childcare center, around August 2010, and paying KRW 3,772,710 over 142 times as shown in the attached crime list of crimes in attached Form 2.

The Defendant, as the operator of the D Child Care Center, was in custody of childcare fees from the guardians of infants registered in the D Child Care Center on October 21, 201, embezzled the amount of money owned by the said guardian, the victim, by paying KRW 96,280,00 from that time to August 21, 201, including paying KRW 96,280,00,000 used by the Defendant’s Hash’s mobile phone at an insular area (hereinafter referred to as the “insular area”), as indicated in the list of crimes in attached Form 3.

D. The operator of the embezzlement childcare center equivalent to the amount of travel photographs embezzled from the guardian of the infant in need of childcare, even though he/she should not pay the amount of childcare fees when he/she received separate necessary expenses, such as on-site learning expenses and on-site photographing expenses, from the guardian of the infant in need of childcare, the Defendant embezzled the amount of money owned by the said guardian, who is the victim, by causing 350,000 won to be paid for the graduation photographs separately received from the guardian of the infant registered in the childcare center on March 13, 2013.

E. The operator of the Krigy Art Art's water playground and the driver of the vehicle rent and the childcare center should not pay the above expenses from the guardians of the infants subject to childcare, even if he received separate necessary expenses, such as on-site learning expenses, and the taking-off expenses. However, the Defendant embezzled the above amount owned by the victim by paying the childcare fees from the care guardians of the infants registered in the childcare center on August 22, 2013, when he received childcare fees from the care guardians of the infants registered in the childcare center and kept them. On August 22, 2013, the Defendant embezzled the above care amount of KRW 1,356,000 for the on-site learning expenses and the vehicle rent of KRW 560,000 for the above on-site learning from the care fees.

2. The judgment of the court below

The lower court acquitted all of the charges of this case on the following grounds.

The money prosecuted as embezzlement in this case is the money paid by the State or a local government from the guardians of the infants entrusted by the Defendant with the childcare service voucher issued by the State or the local government (hereinafter in this case referred to as "child care card"). It is difficult to view that the specific usage was specified at the time when the State or the local government issued the child care card. There is insufficient evidence to deem that the infant care provider specified the infant care fee in detail when paying the infant care fee by using the child care card. Rather, it is reasonable to view the amount paid with the child care card as the money, like the ordinary service usage fee, with the cost and profit combined. It is reasonable to regard it as the money including the expenses and the Defendant's profit as the money, and it is reasonable to regard it as the money including the expenses and the Defendant's profit. Thus, the money paid with the child care card is deposited into the account that received the child care center-related expenses and paid with the child care center-related expenses, and it cannot be viewed as a specific use beyond the abstract usage, which is the child care fee that cannot be specified.

In addition, the defendant's facts charged, B, and C are merely an act of increasing the net profit of a child care center and lowering the quality of infant care service and thus cannot be punished for embezzlement. The act described in the facts charged D and E in the facts charged is not clear whether or not the money was paid from the infant care fee settled with the Love Card, and even if the money was disbursed, it is difficult to recognize the specificness. Even if the specific nature is recognized, it is difficult to recognize the intention of illegal acquisition because it can be seen that the defendant used the child care fee temporarily and included it in the necessary expenses separately received the shortage.

3. Summary of grounds for appeal;

In light of the contents of relevant Acts and subordinate statutes, such as the Infant Care Act, the details of the publication of the public announcement of the settlement of accounts of childcare centers operated by the defendant, and the fact that the above details are disclosed to the guardians of infants, childcare fees received from the guardians of infants and young children, given that childcare fees received from the guardians of the infants and young children in the settlement of accounts in the childcare center are those entrusted with the use of only the items recorded in the settlement of accounts of the childcare center, namely, personnel expenses, business operation expenses, management expenses, business expenses, expenses, transfer expenses, annual expenses, annual expenses, magazine transfer expenses, magazine publication, and reserve funds, the crime of occupational embezzlement

4. Ex officio determination

Before the judgment on the grounds for appeal, the prosecutor applied for amendments to the indictment to the effect that ex officio prior to the judgment on the grounds for appeal: (a) the prosecutor applied for amendments to the indictment to the effect that the items of the money embezzled with the victim are added to the charges; and (b) the subject of the judgment upon permission by this court; (c) the facts charged in the judgment below, (b) and (c) cannot be maintained any further.

However, although there are grounds for ex officio reversal in the above part of the judgment below, it appears that it is necessary to determine the prosecutor’s assertion of misapprehension of the legal principles as to the modified facts charged, and on the other hand, it appears that there is a close relation with the judgment of the grounds for appeal as to the portion of the modified facts charged, which was not modified. In light of this, the determination of whether the crime of occupational embezzlement is established

5. Determination on whether the crime of occupational embezzlement was established

A. Basic facts and the issues of this case

1) According to the evidence adopted and examined by the lower court and the lower court, the following facts are recognized.

(1) From October 2006, the Defendant operated a Dolin House, which is a private child care center determined by the Infant Care Act, as the president from October 2006. Since July 2012, the Defendant, as a representative, has operated a F child care center, which is a family child care center.

The Defendant received childcare fees from the guardians of infants with "child care cards" (this refers to the right to use infant care services issued to the guardians of infants in accordance with the Infant Care Act, as seen in the front and rear), and other necessary expenses (referring to the purchase cost of goods not included in infant care fees and the cost of special activities site learning, etc. that do not belong to ordinary infant care programs; hereinafter referred to as "necessary expenses"). Meanwhile, the Defendant received basic infant care fees (the cost of part of infant care), and other subsidies (the cost of meals, cooling, heating, etc.) from the Republic of Korea, the Gyeongnam-do, and the Tong-si for the operation of each child care center.

② The Defendant opened an account in the name of the D Child Care Center (S) and used it for the management of revenues and expenditures of the Child Care Center. Although her husband G was not working at the D Child Care Center, the Defendant paid the same money as stated in G’s charge in the facts charged as wages in G from the said community credit cooperatives R account (hereinafter “instant account”) and paid the premium as described in paragraph (b) of the facts charged. In addition, as described in paragraph (c) of the facts charged, the Defendant paid mobile phone charges used by ASEAN from the said account.

③ In addition, as stated in the facts charged, the Defendant paid from the above account the amount equivalent to the graduates’ photo, the amount of money equivalent to the admission fee and the vehicle rent, as set forth in paragraph (5) of the facts charged, and the amount equivalent thereto was already received from the guardians as necessary expenses other than the childcare fee.

2) Such factual relations are generally recognized by the Defendant, and there is no big dispute. The issue in this case is whether the above act of the Defendant can be evaluated as a crime of occupational embezzlement. Specifically, the issue is whether the Defendant’s care fees and necessary expenses received from the guardian of the infant, whether the Defendant’s basic childcare fees and other subsidies received from the Republic of Korea, the Gyeongnam-do, and the Tong Young-si can be viewed as another’s property in the crime of occupational embezzlement, and even if it can be viewed as another’s property, the Defendant’s use of the money in this case’s account kept together with other money related to the operation of the childcare center can be seen as using childcare fees, necessary expenses, basic childcare fees, and other subsidies, and if so, whether the said money can be specified among the money used.

(b) Whether infant care fees, necessary expenses, basic infant care fees, and other subsidies received by the defendant constitute money entrusted with the purpose and purpose of use and constitutes another person's property;

1) The money entrusted with the purpose is reserved by the truster until it is used for a specified purpose. In particular, in a case where the specific nature of the money is not required, even if it is temporarily used in a situation where the trustee can substitute it for another money at a necessary time without going against the purport of the entrustment, the crime of embezzlement is not established. The trustee constitutes embezzlement only when he consumes it for another purpose in violation of the purport of the entrustment (see, e.g., Supreme Court Decision 2002Do2939, Oct. 11, 2002).

2) As to the facts charged in the instant case from August 2010 (paragraph (b) as of the time of the first crime, the relevant provisions of the Infant Care Act and the subsequent detailed regulations are as follows.

① The current Infant Care Act provides that the State and local governments shall provide infant care services free of charge (Article 34) so that the State and local governments can provide infant care services vouchers (limited to “child care cards” in this case) to the guardians of infants to subsidize the expenses (Article 34-3). Before the Act was amended by Act No. 11627 on January 23, 2013, the State and local governments have fully or partially borne expenses incurred in infant care for beneficiaries under the National Basic Living Security Act and children below a certain amount of income prescribed by Ordinance of the Ministry of Health and Welfare, and are able to provide infant care services vouchers to their protectors for the purpose of subsidizing the expenses. In this regard, the current Infant Care Act provides that child care services vouchers shall be subject to criminal punishment in cases where a guardian who received childcare expenses or received childcare fees by unlawful means and the establisher and operator of child care centers has received childcare fees by unlawful means (Article 54(3)4 through 6 of the current Infant Care Act).

(2) Child-care centers shall be subject to criminal punishment where the founders and operators of child-care centers receive child-care fees and other necessary expenses within the extent determined by the competent Mayor/Do Governor (Article 38), and child-care fees and other necessary expenses are received by unlawful means.

(3) The State or local governments may order the establisher and operator of a child-care center to fully or partially subsidize expenses incurred in the establishment and operation of the child-care center (Article 36), and to fully or partially return expenses and subsidies granted to the establisher and operator of the child-care center in certain cases, such as where subsidies are used for purposes other than business purposes (Article 40). In addition, if the establisher and operator of the child-care center receives a subsidy or uses a subsidy by improper means (Article 54(2)

(4) A person who establishes and operates a child-care center shall operate the child-care center in accordance with the operational standards prescribed by the Ordinance of the Ministry of Health and Welfare (Article 24 of the current Infant Care Act), and the detailed operational standards, including the collection of child-care fees and the disbursement of expenses, are prescribed in the Enforcement Rules accordingly. In addition, the Minister of Health and Welfare (the Minister of Health and Welfare), the Mayor/Do Governor, and the head of a Si/Gun/Gu have provided various detailed regulations concerning the guidance and supervision of the establishment and operation of child-care centers (Article 41 of the current Infant Care Act).

(5) The Minister of Health, Welfare and Family Affairs (former Minister for Health, Welfare and Family Affairs) shall provide detailed and detailed matters concerning the establishment and operation of child-care centers with the delegation of the Infant Care Assistance Act by the Infant Care Assistance Act. Among them, matters concerning the financial accounting of child-care centers shall be implemented in accordance with the former Ordinance of the Ministry of Health, Welfare and Family, and the rules prescribed by Ordinance of the Ministry of Gender Equality and Family (current rules on finance and accounting of social welfare corporations and social welfare facilities), and shall make an accounting report accordingly mandatory, and shall establish a head of a Tong who manages only the revenues and expenditures of child-care centers to manage all revenues and expenditures through the opening of such head. Furthermore, the surplus funds from child-care facilities shall be paid higher remuneration for infant-care staff, payment of bonus for infant-care staff, purchase of teaching materials and aids, balanced use for the improvement of the environment of child-care centers, but shall be made unusable for other purposes. Meanwhile, detailed standards concerning the revenues and expenditures of child-care centers and revenues from child-care facilities, the amount of child-care subsidy and funds received from the State and local governments shall be divided into the budget.

3) The contents and purport of the Infant Care Act as above, the detailed regulations thereon, in particular, ① the revenue and expenditure of child care centers are managed in accordance with very detailed and detailed standards, and even if surplus is generated in the course of operation, it can only be used for a certain purpose related to the operation of the child care center, and it cannot be managed or made as an individual’s income (it is wrong on the premise that it includes Defendant’s profits in the child care fees received in the course of operation of the child care center which is a non-profit business). ② If the State and the local government receive the subsidy or uses the subsidy in an unlawful manner, the child care fees and other necessary expenses are collected from the guardians of the child care center. If the child care center receives the subsidy or uses the subsidy in an unlawful manner, the child care fees may be recovered; ③ the guardian entrusted to the child care center is provided with the child care service voucher as part of the child care expense or the child care service fee provided without compensation or by unlawful means, and the child care center operator can freely use it for the purpose and purpose of operation of the child care center and the money.

4) However, it is difficult to regard childcare fees that the operator of a childcare center receives from his/her guardians as being strictly limited to the above and thus cannot be used for any other item. While the operator of a childcare center has a limitation on the amount to be collected within the limit of the amount to be collected in accordance with the decision of the Mayor/Do Governor when determining the amount to be collected, the operator shall autonomously determine the amount to be received in consultation with his/her guardians within the limit of the amount to be received, and the amount to be used for various purposes of the operation of the childcare center is the amount

This is because it is difficult to see that it was well-established.

5) In this case, not only infant care fees and necessary expenses that the Defendant received from the guardians of infants, but also basic infant care fees and other subsidies corresponding to the subsidies granted from the Republic of Korea, the Republic of Korea, the Gyeonggi-do, and the Tong-si, which are local governments, constitute revenues received for the operation of child care centers in accordance with the Infant Care Act and the standards prescribed by the detailed regulations thereof, and constitute money entrusted with the purpose and purpose to the extent necessary for the operation of child care centers. Therefore, the said money constitutes another’s property kept in the custody of the Defendant, and thus, the crime of occupational embezzlement

However, as seen earlier, it is difficult to view that the use of childcare fees is more specifically restricted than the above scope, and if childcare fees are used within the scope for the operation of childcare centers, it cannot be said that there was an intention to obtain unlawful acquisition between the defendant and the defendant, specifically regardless of the item or use thereof. Accordingly, Articles 4 and 5 of the facts charged that the defendant embezzled childcare fees received from his guardian by using the childcare fees as necessary expenses, which are other purposes related to the operation of childcare centers, are not recognized as an intention to obtain unlawful acquisition, and thus, the crime

Therefore, the facts charged shall be continuously viewed only with respect to Article 1, 2, and 3 of the facts charged. Whether the Defendant can be deemed to have used childcare fees, necessary expenses, basic childcare fees, and other subsidies to use money in the account of this case. The Defendant’s money deposited in the account of this case only for the purpose of managing the revenue and expenditure of childcare centers established in the name of the childcare center and operated only for the purpose of managing the revenue and expenditure of childcare centers can be deemed to have been the revenue received for the operation of childcare centers in accordance with the Land Act and the detailed regulations of the Act, and all of the money entrusted with the purpose and purpose

However, since the Defendant also kept money of a different nature, such as borrowings from the above account, it should be proved that the Defendant’s money used in the above account constitutes childcare fees, necessary expenses, basic childcare fees, and other subsidies, not other money to be recognized as the crime of occupational embezzlement.

The evidence duly adopted and examined by the court below and the court below, that is, the money of each of the above items is the most part of the revenue of a child care center (for example, 2013, 314,443,353 won, which accounts for about 96% of the revenue revenue of D child care center). The money of each of the above items is deposited in or frequently at any time in the above account, and when considering the detailed contents of the above account, it is reasonable to regard the money used by the defendant as the money of each of the above items (for this test, the balance of the account becomes zero won and only the money falling under the above items was deposited) or the money of other items is mixed only with the money of the above items. In full view of the above facts, it is reasonable to deem that the money used by the defendant as stated in this part of the facts charged is the money of each of the above items.

However, in accordance with the detailed statement on the deposit and withdrawal of the above account, since the Defendant’s money used as above is mixed with a relatively small amount of money and other money used as above, the entire amount used cannot be deemed as the money of the above item. However, it is impossible to clearly distinguish the Defendant’s money used for a long time due to the long period of time and the details of the deposit and withdrawal, and it is impossible to clearly distinguish the part of the money used by the Defendant, which is different from the part of the money used by the Defendant.

Ultimately, the Defendant cannot accurately know the amount of each of the above items out of the money used as above, i.e., the amount embezzled by the Defendant. If so, whether the crime of occupational embezzlement is established in this case even if the amount of embezzlement is not clearly specified.

(d) Whether the amount of embezzlement is specified;

As seen above, since most of the money used by the Defendant constitutes childcare fees, necessary expenses, basic childcare fees, and other subsidies, it is difficult to accurately understand the amount of the above money used and entrusted by the Defendant from the guardian of the infant, the Republic of Korea, the ordinary south-do, and the common city, but it is evident that the Defendant embezzled the above money used for personal purposes (in accordance with the evidence of the original trial and the trial court, it is recognized that the Defendant returned the money used as above after this case was at issue and received revenue measures, and thus, it cannot be deemed that the Defendant used the above money temporarily in consideration of changing the money to other money). Furthermore, it is impossible to specify the amount corresponding to the money used by the Defendant in detail among the money used by the Defendant because the period of using the money for a long time is long, the details of deposit and withdrawal are complicated, and there is a mixture of money different from the money in each of the above items.

In light of the characteristics of the instant case, it is inevitable to specify the amount embezzled by the Defendant as an amount that is not accurately known, and this part of the facts charged is considered as an inclusive crime. The prosecutor’s prosecution also has the purport that the Defendant embezzled the amount that is not specifically identified (in the case of this part of the facts charged, the amount of embezzlement is not clearly stated, and the prosecutor is expressed at the 9th trial date) and the Defendant also has an opportunity to defend this part of the facts charged at the trial.

Therefore, the amount embezzled by the defendant in relation to this part of the facts charged can be recognized as the "amount of unclaimed money" out of the amount used as stated.

E. Sub-decision

The Defendant’s child care fees, necessary expenses, basic child care fees, and other subsidies kept in the account of this case constitute money entrusted by the guardian of the infant, the Republic of Korea, Gyeongnam-do, and Tong Young-si to the extent necessary for the operation of the child care center. As long as the Defendant used the money in most of the above items to be used for personal purposes unrelated to the operation of the child care center, such as the facts charged A, B, and C, the Defendant constitutes a crime of occupational embezzlement. The amount embezzled by the Defendant is only recognized as an amount of money that the Defendant embezzled.

However, it is difficult to see that the use of childcare fees is again restricted within the scope for the operation of childcare centers, and therefore, all of the facts charged D, and E constitute cases where there is no proof of crime. It is justifiable for the lower court to have acquitted the Defendant on this part of the facts charged with this conclusion

6. Conclusion

Therefore, the part of the judgment of the court below regarding the facts charged A, B, and C is reversed as there is a ground for ex officio reversal, and it is so decided as follows. The prosecutor's appeal against the remainder of the judgment below is dismissed as it is without merit. It is so decided as per Disposition

Criminal facts

The defendant is a person who operates a ‘D Child Care Center' and ‘F Child Care Center' in E in Dong Young-si.

1. Embezzlements equivalent to personnel expenses for drivers;

The Defendant, as the operator of the D Child Care Center, was in custody of the basic infant care fees and other subsidies from the Republic of Korea, the Gyeong-do, and the Si/Gun/Gu, and from the guardians of infants registered in the Child Care Center, while the Defendant’s husband G was not working as a driver of the said D Child Care Center, despite the fact that the Defendant’s husband G was not working as a driver of the said D Child Care Center on January 26, 2011, he was paid KRW 700,000 from that time to August 27, 2013, as indicated in the attached Table 1, paid KRW 15,100,000 for 28 times as benefits, from that time, and embezzled the amount of money owned by the said Republic of Korea, the Gyeong-do, the Si/Gu, the Si/Gu, and the infant guardian.

2. Embezzlements equivalent to four premiums;

The Defendant, as the operator of the D Child Care Center, was in custody of the basic infant care fees and other subsidies from the Republic of Korea, the Gyeong-do, and the Si/Gun/Gu, and from the guardians of infants registered in the Child Care Center, while having been in custody of the care fees and other necessary expenses, as described in the preceding paragraph, embezzled the amount of money owned by the victims of the above Republic of Korea, the Gyeong-do, the Si/Gu, the Si/Gu, the Si/Gu, and the infant care center, with the national pension insurance premiums of KRW 80,00 for the employment of G in the form of D Child Care Center at an insane area below the Si/Gu around August 2010, as described in the attached Table 2, including the payment of childcare fees of KRW 3,772,710 over 142 as insurance premiums.

3. Embezzlements equivalent to the payment of charges for personal mobile phones;

The Defendant, as an operator of the D Child Care Center, has been in custody of the basic infant care fees and other subsidies from the Republic of Korea, the Gyeongnam-do, and the Si, and from the guardians of the infants registered in the Child Care Center, paid the child care fees and other necessary expenses, and paid KRW 96,280 to the mobile phone usage fees used by the Defendant’s Hashhhh from the unclaimed area around 10, 211, around 21, and around June 21, 2013, and then embezzled the amount of money owned by the said Republic of Korea, the Gyeongnam-do, the Si, the Si, the Si, and the infant carers, from the total sum of KRW 1,140 until June 21, 2013.

Summary of Evidence

1. The trial of the defendant and each legal statement in the original judgment;

1. Examination protocol of the accused by prosecution;

1. Statement by the police police of L and Q;

1. In the application of Acts and subordinate statutes, investigation reports (in the form of a copy of the disbursement resolution), investigation reports (D-in the form of the current status of appointment and dismissal of school personnel), investigation reports (in the form of a driver of a child care center), investigation reports (in the form of a report on change of a driver of a child care center), investigation reports (in the form of a report on change of a driver of a child care center in the G), investigation reports (in the form of a 0 telephone statement hearing of a retired teacher), investigation reports

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 356 and 355(1) of the Criminal Code (as a whole, each of the facts of the crime) and each of the fines;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2)1 of the former Criminal Act (Amended by Act No. 12575, May 14, 2014)

The reason for sentencing under Article 334(1) of the Criminal Procedure Act is that the defendant, who is an operator of a child-care center with a high public nature, gains personal benefits from the care of the infant and his guardian, Korea, etc., and such act is directly connected to the result of impairing the quality of child-care services, and thus, it is necessary to punish him in good faith, and it is also necessary to prevent similar crimes. In addition, the amount that the defendant committed for a long time and embezzled seems to be considerable.

However, in the meantime, the Defendant returned all the money at issue in relation to the instant case to the revenue and return it to the Defendant, while asserting the innocence on the grounds of a legal aspect with the defense counsel, there is no criminal power, and there is no record of crime. It should also be taken into account that the amount of embezzlement cannot be specified specifically, that the Defendant is operating a childcare center with a large social need by providing facilities, such as a building, or that there is no clear standard as to whether the crime of embezzlement is established in the instant case.

The punishment shall be determined as ordered in consideration of the sentencing conditions shown in pleadings, such as the age, character and conduct, the environment, the background and result of the crime, and the circumstances after the crime.

Judges Park Chang-chul

Judges Kang Jin-jin

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.