[특정경제범죄가중처벌등에관한법률위반(횡령)][공2005.2.1.(219),219]
[1] The meaning of the intent of unlawful acquisition in the crime of occupational embezzlement, and the meaning of the budget diversion and the intent of unlawful acquisition
[2] The case holding that the crime of embezzlement is established in the case where the use of a national subsidy belonging to the accounts of school expenses of a private school is made for the acquisition of assets for profit of the school foundation
[3] Whether the use of school expenses accounting funds and embezzlement in a private school is established (affirmative)
[1] The intent of unlawful acquisition in the crime of occupational embezzlement refers to the intention of disposal of another person's property in violation of his/her duties for the purpose of pursuing the benefit of himself/herself or a third party, such as his/her own property. In cases where a person in a position to execute the budget diverts the budget for the purpose of facilitating the shortage of expenses not for his/her own interest but for his/her own interest, it cannot be readily concluded that the person has the intention of unlawful acquisition only because there was a useful use to fill the gap when the expenditure is allowed if it is determined or received, and where the budget has been strictly limited, the intent of unlawful acquisition is recognized.
[2] In light of the intent of the provision on the Act on the Budgeting and Management of Subsidies, since it is reasonable to see the state subsidy under the above Act as a strictly limited fund, embezzlement is established in the case where it is used as profit-making asset acquisition cost by the school foundation for its diversion
[3] In the case of a private school, the accounts of the school juristic person are divided into the accounts of the school and the corporate accounts under Article 29 of the Private School Act and the Enforcement Decree of the same Act, and in particular, the income belonging to the accounts of school expenses is strictly limited, such as the income from the accounts of school expenses cannot be transferred to other accounts or lent, so if the accounts of school expenses are used for other purposes,
[1] Articles 355(1) and 356 of the Criminal Act / [2] Article 355(1) of the Criminal Act; Articles 22(1), 30(1), 31(1), 33(1), 34(1), and 41 of the Act on the Budgeting and Management of Subsidies / [3] Article 355(1) of the Criminal Act; Article 29 of the Private School Act; Article 13 of the Enforcement Decree of the Private School Act
[1] Supreme Court Decision 94Do2911 delivered on February 10, 1995 (Gong1995Sang, 1368) Supreme Court Decision 2001Do5439 delivered on February 5, 2002 (Gong2002Sang, 709) Supreme Court Decision 2002Do5130 Delivered on November 26, 2002 (Gong2003Sang, 290) / [3] Supreme Court Decision 2001Do1779 Delivered on May 10, 2002 (Gong2002Ha, 1448) (Gong203Ha, 1489)
Defendant
Defendant
Law Firm Barun Law, Attorney Jeong Ho-ho
Gwangju High Court Decision 2003No327 delivered on July 18, 2003
The appeal is dismissed.
1. On June 30, 199, the court below recognized that the defendant, who worked as the head of the military school foundation, the head of the military school foundation, the head of the military administrative office of the university (the Director of the current Financial Management Office) and was in charge of the management and execution of the funds of the above university, had the officer in charge of planning support of the above university, Nonindicted 1 (the Death of November 2, 2002) deposit account opened a deposit account in the nine names, including Kim Chang-ro, etc. on June 30, 199 in order to deposit the total amount of KRW 1,706,00,000 in the above deposit account (the total amount of KRW 1,250,000,000 in the above deposit account) with the defendant and the non-indicted corporation deposited it in the above deposit account, as if he concluded a contract without entering into the contract with the supplier or concluded a false contract with the head of the above school foundation, and then voluntarily withdraws the funds in the above amount of KRW 200,00.
2. The intent of unlawful acquisition in the crime of occupational embezzlement means the intention of disposal of another person's property in violation of his/her duties for the purpose of pursuing the benefit of himself/herself or a third party, such as his/her own property. In cases where a person in a position to execute the budget diverts the budget for the purpose of facilitating the shortage of expenses not for his/her own interest but for his/her own interest, it cannot be readily concluded that the person has the intention of unlawful acquisition only because there was a useful use to fill the interval when the expenditure could have been permitted if the expenditure was conducted through certain procedures. However, if the item of the budget itself has an unlawful purpose or the budget is strictly limited (see Supreme Court Decisions 94Do2911, Feb. 10, 1995; 201Do5439, Feb. 5, 2002, etc.).
Meanwhile, according to the Act on the Budgeting and Management of Subsidies (hereinafter referred to as the “Subsidy Act”), a separate account is set up and managed by clearly separating its revenues and expenditures (Article 34(1)), and the use of subsidies for other purposes is strictly prohibited (Article 22(1)), and where such subsidies are violated, imprisonment for not more than three years or a fine not exceeding two million won shall be imposed (Article 41), the decision to grant has been revoked in whole or in part (Article 30(1)), and the refund of the subsidy corresponding to the revoked portion shall be revoked (Article 31(1)), and the refund of the subsidy shall be ordered (Article 33(1)) shall be collected in accordance with the example of the collection of national taxes (Article 33(1)). In light of the purport of these provisions, it is reasonable to see that the above national subsidy is strictly limited in its use.
The lower court’s recognition and determination are justifiable in accordance with the aforementioned legal doctrine, and it did not err by misapprehending the legal doctrine on the intent to acquire embezzlement and the interpretation of the Subsidy Act.
3. In addition, this case's subsidy falls under the category (a) of the national subsidy (including the government subsidy) out of the revenue of the school expenses accounts (see attached Table 6.), and the records reveal that the real estate for which the payment of the subsidy was made by using the subsidy as above constitutes not the "facilities and equipment directly necessary for school education" as provided by Article 13 (2) 2 of the Enforcement Decree of the Private School Act, but the basic property for lease profit of the school juristic person is not the "facilities and equipment directly necessary for school education" as provided by Article 13 (2) 2 of the Enforcement Decree of the Private School Act, and the payment of the purchase price constitutes the basic property for lease profit of the school juristic person. It can be seen that the property purchase price is entered (a title (e.g., the private school institution financial rules) in the expenditure department of the corporate accounting (see attached Table 5. 5.) among the facility cost(s) of the corporate fund. In light of Article 29 of the Private School Act and the Enforcement Decree of the same Act, it can not be established for another purpose.
4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Zwon-won (Presiding Justice)