2. B

Attorney Lee In-ok, Counsel for the defendant-appellant

1. The summary of the facts charged in the instant case is as follows. Defendant A, as C University food engineering and professor, concurrently serves as the head of C University D from around December 2013. Defendant B, from around March 2007, served as the full-time researcher with C University Food Engineering from around December 2013 to September 23, 2016, and was serving as the research full-time professor of C University.

An industry-academic cooperation foundation for victim C-university entered into an agreement with the Ministry of Oceans and Fisheries, the Rural Development Administration, etc. to conduct research projects, and have professors, etc. belonging to C-university perform the relevant research projects under the management and responsibility of victims after receiving support or payment of research expenses, etc. from the above government departments, etc., and settle the balance of the research expenses and return the amount unfairly executed to the government department

The Defendants: (a) while conducting various research tasks through the victim, the Defendants: (b) opened the instant account in the name of Defendant B separately; and (c) collected part of the personnel expenses of the participating researchers to jointly manage them as the said account (hereinafter “instant joint management account”); and (d) had the victim’s research personnel expenses to be used for personal withdrawal equipment, publication fees of individual papers, and laboratory meal expenses; and (b) had the victim transferred the research personnel expenses to the affiliated researchers who applied for by the Defendants, the Defendants thought that part of the remittance was jointly recovered and jointly managed as the instant joint management account; and (c) did not have the intent to pay the said researchers the full amount of the personnel expenses. However, on November 1, 2013, the Defendants deceptioned the victim’s person in charge by filing an application for the full amount of 243,000 won for the research personnel expenses of the Plaintiff’s I by means of deceiving the victim’s personnel expenses to the said one’s account on November 25, 2013; and (d) acquired the total amount by fraud from the aforementioned to the date and time.

2. On the grounds indicated in its reasoning, the lower court found the Defendants guilty on the following facts: (a) based on the fact that “the Defendants had the intent not to pay to the Institute an amount remaining after deducting a certain amount of the personnel expenses paid by the victims from the time when applying for personnel expenses, to the instant joint management account in which the right to dispose of them was lost; and (b) the victims would have not paid the full amount of personnel expenses if the Defendants knew that part of the personnel expenses was recovered and used in a clear manner while managing them as the joint management account in this case; and (c) thus, (d) the Defendants

3. However, the lower court’s determination is difficult to accept for the following reasons.

(1) The intent of the crime of defraudation or the intent of unlawful acquisition, which is a subjective constituent element of the crime of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the Defendant’s financial history, environment, details and details of the crime before and after the crime, the process of transaction performance, and relationship with the victim, insofar as the Defendant does not make a confession. The conviction ought to be based on evidence with probative value that leads to the conviction that the facts charged are true to the extent that there is no reasonable doubt. Therefore, if there is no such evidence, even if there is a doubt of guilt against the Defendant, the determination is inevitable even if there is a doubt of guilt against the Defendant, and the same applies when recognizing the criminal intent or the intent of unlawful acquisition, which is a subjective element of the crime of fraud (see Supreme Court Decision 2010Do659, May

(2) Examining the reasoning and records of the lower judgment, the following circumstances are revealed.

① Defendant A, while working as C University food engineering and professor, may receive sufficient labor costs during a large period of research tasks, but no research task is available during the period for which there is no research task, and Defendant A, in order to resolve the problem that, if there is no research task being performed or there is less research task being performed during the period for which the research task is carried out, Defendant A proposed joint management of labor costs for researchers to Defendant B, who was a full-time researcher, and entrusted the management of the E Bank account and the E Bank account under his name, with the E Bank account in his name.

② At around 2007, Defendant B opened the instant joint management account under the understanding of affiliated researchers, and operated and managed three accounts including the said two accounts from that time to that of affiliated researchers’ joint management account. The researchers affiliated with Defendant A transferred labor expenses deposited into the instant joint management account to the instant joint management account after transferring labor expenses deposited into the said account under his/her name to the instant joint management account. After receiving labor expenses on a monthly basis from the instant joint management account, the researchers affiliated with Defendant B did not seem to have raised objections to the operation of the instant joint management account.

③ The joint management account, including the instant joint management account, has been managed by the researchers designated as administrative officials in charge of the affairs of entering and withdrawing from the account by starting Defendant B.

④ Since March 2013, Defendant B had been employed as a research professor of D’s transfer from March 2013, Defendant A concurrently served as the head of D from December 2013, and the joint management account of this case has been operated in the same manner as before.

⑤ The amount recovered from the instant joint management account out of the labor cost paid by the victim to the Institute during the period specified in the instant facts charged (from November 25, 2013 to January 27, 2016) exceeds a total of KRW 93,205,80, and the total labor cost paid to the Institute from the joint management account during the same period exceeds the amount recovered from the labor cost actually paid to the Institute to the jointly managed management account.

② Defendant A deposited KRW 18,705,00 in the instant joint management account from around 207 to January 2016 to appropriated for the payment of the researchers’ personnel expenses. From February 2013 to December 2015, Defendant A used the amount of money used for other purposes, such as meeting expenses, oil expenses, Defendants’ withdrawal equipment, air charges, and publication fees for the instant joint management account, which are not personnel expenses among the money in the instant joint management account.

(3) Examining the above circumstances in accordance with the legal principles as seen earlier, the Defendants began to operate the instant joint management account to resolve the problem arising from the payment method of personnel expenses, and there was no special objection among the researchers with respect to the operation of the instant joint management account. The Defendants used all labor expenses recovered by the Defendants to the instant joint management account in excess of the total labor expenses to be paid to the researchers during the period indicated in the instant facts charged. Therefore, solely on the grounds that the instant joint management account was operated and managed and that some amount was disbursed for other purposes than the labor expenses in the instant joint management account, it is difficult to view that the Defendants deceiving the victims as if the Defendants were to not pay part of the labor expenses that the Defendants would have to pay to the researchers, even if they were to have the intent to pay to the researchers, without any reasonable deliberation. Nevertheless, the lower court found the Defendants guilty of the instant facts charged on the ground that the lower court erred by misapprehending the legal principles on the intent to commit fraud and illegal acquisition from the time of applying for personnel expenses to the Defendants.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Chief Justice Cho Jae-hee

Justices Kim Jae-in

Justices Lee Jae-hwan