[업무상횡령피고사건][하집1984(1),541]
In the case of refusal to pay the deposit upon request, the part of embezzlement
Money deposited in a village treasury is not the ownership of the deposit but the ownership of the village treasury. The custody of the deposited money by the president of the village treasury is based on the delegation relationship with the village treasury, and it is not the custody of the deposit money in accordance with the delegation relationship with the deposit owner. Therefore, it cannot be deemed that the president of the village treasury embezzled the deposit money if he/she refuses payment without complying with the request for payment from the deposit owner while he/she receives the request for payment from the deposit owner.
Article 356 of the Criminal Act
Defendant
Prosecutor
Suwon District Court Branch (83 High Court Decision 624 delivered on July 1, 200)
The prosecutor's appeal is dismissed.
The gist of the Prosecutor’s grounds for appeal is that the lower court erred by misapprehending the legal doctrine on occupational embezzlement, thereby rendering the Defendant not guilty under the former part of Article 325 of the Criminal Procedure Act, thereby adversely affecting the conclusion of the judgment, on the grounds that the facts charged constitute an offense.
Therefore, the president of the village cooperative shall be a person who is in custody of the deposited money in the village cooperative. However, the deposited money is not owned by the village cooperative, but is already owned by the president of the village cooperative. The custody of the deposited money by the president of the village cooperative is not a custody of the deposited money in accordance with the delegation relation with the village cooperative. Thus, the president of the village cooperative shall not be deemed to embezzled the deposited money in a case where the president of the village cooperative received a request for payment from the deposit owner and refused payment without complying with the request. Thus, the facts charged that the defendant, the president of the village cooperative, received a request for payment from the deposit owner, and refuses payment without complying with the request for payment of the ordinary deposit amount of 5 million won, does not constitute a crime of punishment. Accordingly, the court below's decision is justified and without the prosecutor's appeal is justified.
Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.
Judges Song-gu (Presiding Judge) Kim Ho-ho et al.