[2] Whether a corporation’s executive officer’s continuous and repeated use of a corporate card that can be used only for public performance of his/her duties constitutes a crime of occupational breach of trust (affirmative in principle), and whether it should be viewed differently solely on the ground that the actual one shareholder’s understanding of the use of the corporate card was obtained (negative)

[2] In a case where an executive officer of a corporation continues to use a corporate card that can be used only for public performance of his/her duties for an individual purpose, barring special circumstances, he/she may be deemed to have been aware that he/she acquired his/her interest and suffered damage to the corporation, and barring special circumstances, such act constitutes a crime of occupational breach of trust. Such an act constitutes a crime of occupational breach of trust. The mere fact that the actual shareholder understanding of the use of the corporate card, or that the actual one shareholder unilaterally expects that he/she would reimburse and preserve the corporate card price in the future, cannot be deemed to have denied the intent of occupational breach of trust

1. As to the Defendant’s ground of appeal

A. The point of occupational breach of trust due to the lease of the parking lot

In the crime of occupational breach of trust, the term "if the damage is inflicted on the principal" refers to the case where the damage is comprehensively incurred to the principal's property status, and includes the case where the damage was caused by the risk of actual damage to property. Thus, even if the damage was not clearly determined, the establishment of occupational breach of trust does not affect the establishment of occupational breach of trust (see, e.g., Supreme Court Decisions 2000Do2914, Jan. 19, 2001; 2007Do6772, Oct. 29, 2009).

Based on the circumstances indicated in its reasoning, the lower court upheld the first instance judgment convicting the Defendant of this part of the charges on this part, on the ground that the Defendant, the representative director of the victim Nonindicted Co. 1 (hereinafter “victim Nonindicted Co. 1”) determined KRW 2,00,000,000, which is less than the total profit earned each month at the time from each of the above parking lots and the △△△ parking lots managed by the victim Nonindicted Co. 1 Company, as rent, and concluded a lease agreement with a period of five years longer than ordinary, thereby acquiring property benefits and causing damage equivalent to the same amount.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and the evidence duly admitted, the lower court’s aforementioned determination is just and acceptable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on property damage in the crime of occupational breach of trust and the principle of reinforcement of confession.

On the other hand, the argument in the grounds of appeal that even if the owner of the ○○ Parking Lot was Nonindicted 2 and the defendant leased the ○○ Parking Lot at low price, the victim is not Nonindicted 2 and Nonindicted 1, the victim is not a victim of the ○○ Parking Lot. The grounds of appeal are not asserted as the grounds of appeal, and it is not subject to judgment ex officio in the appellate trial, and it is not a legitimate ground of appeal. In addition, according to the evidence duly adopted by the defendant, registration of preservation of ownership and registration of transfer of ownership are completed in the name of Nonindicted 2 as well as in the name of Nonindicted 1 as to the building and land in which the ○○ Parking Lot is located at the time of the above lease. Accordingly, the argument in the grounds

In addition, where a company engages in the business of managing another person's business, if the representative director of the company obtains pecuniary advantage or has a third party obtain it by doing an act in violation of his duties while managing another person's business, and thereby causes damage to the company or damage to the company (see, e.g., Supreme Court Decisions 83Do1568, Apr. 28, 1987; 2012Do10822, Dec. 27, 2012). Such an act constitutes an occupational breach of trust in relation to the company. In light of this, even if it is deemed that Nonindicted 2 has de facto control over the 00 parking lot, it is reasonable to determine that the above act of leasing another person's parking lot constitutes an occupational breach of trust against the non-indicted corporation, and thus, it is not reasonable to conclude that the above act of leasing another person's parking lot constitutes an occupational breach of trust against the non-indicted corporation. Thus, the above assertion in the grounds of appeal is without merit.

B. The point of occupational embezzlement with respect to KRW 745.10 million

In the crime of occupational embezzlement, the intent of illegal acquisition refers to an intention to dispose of another person's property, such as his/her own property, in breach of his/her occupational duty, for the purpose of seeking the benefit of himself/herself or a third party, and even if he/she has an intention to return, compensate or preserve it later, it does not interfere with the recognition thereof (see, e.g., Supreme Court Decisions 95Do59, Mar. 14, 1995; 2010Do9871, Jun. 14, 2012).

The court below affirmed the judgment of the court of first instance which convicted the defendant of this part of the charges on the ground that the defendant's act of voluntarily consuming the funds of this case by withdrawing KRW 704,510,000 on behalf of the non-indicted 2 on behalf of the non-indicted 3 constitutes a crime of occupational embezzlement, based on the following circumstances: the defendant's withdrawal of the funds of this case from the non-indicted 1's company 704,510,000 won was rejected at the general meeting of shareholders at the time of withdrawal; the relation with the husband non-indicted 2 was aggravated; the defendant's father non-indicted 3 and the non-indicted 1 company; the defendant's non-indicted 2 borrowed KRW 705,736,605 from the non-indicted 3; the defendant's assertion that the non-indicted 2 borrowed the funds of this case from the above funds of this case; the defendant did not process a long-term accounting for the withdrawal of the funds of this case; and the registration relation with each real estate of this case.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on intentional or unlawful acquisition of and liability for proof in the crime of occupational embezzlement, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules

C. Breach of trust due to the use of the corporate card

Since a stock company and a shareholder may not be the same person as a separate legal entity, and the loss of the company shall not always coincide with the loss of the shareholder, even in cases where an executive officer, who is a real shareholder, acquires property benefits or has a third party acquire them by acting in breach of his/her duties and inflicted damage on the company, he/she shall be liable for the crime of occupational breach of trust. Therefore, in cases where an executive officer of a stock company has acquired property benefits or has a third party obtain them, thereby causing damage to the stock company, the actual one shareholder’s understanding as to the act of breach of duty shall be obtained, even if he/she has obtained the understanding as to the act of breach of duty (see, e.g., Supreme Court en banc Decision 83Do230, Dec. 13, 1983; Supreme Court Decision 2008Do6335, Mar. 10, 201

Meanwhile, barring any special circumstance, in a case where an executive officer of a corporation continues to use a corporate card that can be used only for public performance of his/her duties for an individual purpose, barring special circumstances, he/she may be deemed to have been aware that he/she acquired his/her interest and suffered damage to the stock company. Therefore, such an act constitutes a crime of occupational breach of trust. This act cannot be deemed to constitute a crime of occupational breach of trust solely on the ground that the actual shareholder understanding of the use of the corporate card, or that the actual one shareholder unilaterally expects that he/she would reimburse and compensate the corporate card price in the future.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly admitted, it is justifiable to maintain the judgment of the court of first instance which found the Defendant guilty of this part of the charges on the ground that the Defendant’s use of Chapter IV of the victim Nonindicted Co. 1’s corporate card for personal purposes constitutes occupational breach of trust. Contrary to the allegations in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on intention or intent of unlawful acquisition in the crime of occupational breach of trust and by exceeding the bounds of

D. Whether the provision on the precedent of relatives is applied

The victim of the crime of occupational breach of trust and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) found guilty by the court below is not the non-indicted 2, the spouse of the defendant, but the non-indicted 1. Therefore, the relative award provision of Article 328 of the Criminal Act applied mutatis mutandis by Article 361 of the Criminal Act is not likely to be applied

2. As to the Prosecutor’s Grounds of Appeal

With respect to the examination of evidence, the court has the discretion to determine whether it is necessary to hear the case (see, e.g., Supreme Court Decision 83Do1419, Jul. 12, 1983). The recognition of facts and the selection and evaluation of evidence, which is the premise thereof, belong to the discretionary power of the fact-finding court, unless it exceeds the bounds of the principle of free evaluation of evidence against logical and empirical rules (see, e.g., Supreme Court Decision 2013Do1011, Nov. 28, 201

According to the records, the court below affirmed the judgment of the court of first instance which acquitted the defendant of this part of the charges on the ground that it is not sufficient to recognize that the defendant embezzled the funds of Nonindicted Company 1 under his own salary, bonus, and retirement allowance, and there is no other evidence to acknowledge this differently, after the prosecutor accepted the request of the witness from the prosecutor as to Nonindicted 4 on the second trial date of the court below, the prosecutor revoked the above request of the witness from the prosecutor on the fifth trial

Examining the reasoning of the lower judgment in light of the relevant evidence, it is difficult to view that the lower court’s revocation of Nonindicted 4’s decision to adopt a witness according to the prosecutor’s withdrawal of the application for witness examination was unlawful, or that the lower court rendered a not-guilty verdict of this part of the facts charged due to such measures, and that the lower court did not err in exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)