2015Do17597 A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

(b) Violation of the Act on the Registration of Real Estate under Actual Titleholder's Name;

(c) Offering of bribe;

(d) Occupational embezzlement;

(e) Issuing a false tax invoice in violation of the Act on the Aggravated Punishment, etc.;

(f) Violation of the Punishment of Tax Evaders Act;

(g) Violation of the Labor Standards Act;

(h) Violation of the Guarantee of Workers' Retirement Benefits Act;

(i) Violation of the Private School Act;

(j)be forced;

Escopics

Defendant and Prosecutor

B Law Firm (Attorneys C, D)

Gwangju High Court Decision 2013Do318, 504 (Consolidation), 2015do decided October 29, 2015

Article 174 (Joint Judgment)

May 24, 2016

All of the appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief filed by the Defendant after the lapse of the submission period).

1. As to the Defendant’s ground of appeal

A. In principle, revenues from the accounts of class 1 through 3 of the grounds of appeal cannot be transferred or lent to other accounts (Article 29(6) of the Private School Act). The accounts here include all accounts other than the accounts of the school in question or of the school in question, not limited to other accounts of the school in question but to other accounts of the school in question.

Meanwhile, using funds from others for purposes other than for a limited purpose upon being entrusted with a strictly limited amount of funds, which result in not only an individual purpose but also an act of using funds to realize the intent of unlawful acquisition by itself, thereby establishing embezzlement. As such, if the income belonging to the accounts of a private school is used for any purpose other than that of a legitimate school education, i.e., the act of using the income belonging to the accounts of a private school, which is included in the expenditure of the accounts of school expenses, i.e., the act of using it, realize the intention of unlawful acquisition by itself, and thus, the act of using it cannot be exempted (see Supreme Court Decisions 2007Do9755, Feb. 29, 2008, etc.). The same applies to cases where funds belonging to the accounts of school expenses are used for other school expenses (see, e.g., Supreme Court Decisions 2014Do6286, Aug. 28, 2014; 201Do7179, May 17, 2002).

Meanwhile, the intent of embezzlement for occupational purposes is that a person who keeps another's property in violation of his/her occupational duties for the purpose of pursuing the benefit of himself/herself or a third party, and it does not necessarily mean an intention to dispose of another's property in his/her custody as his/her own property. In cases where an operator or a manager of a juristic person separate funds for the purpose of returning a juristic person's property to a non-related purpose or an individual purpose, not for the juristic person in question, rather than for the juristic person in question, the act of creation itself is realized with the intent of unlawful acquisition. In such a case, whether there was such an objective should be determined by comprehensively taking into account all the circumstances such as the nature of the juristic person and the motive, method, scale, and period of raising funds, method of storage of funds, method of storage of funds, method of actual use (see, e.g., Supreme Court Decisions 2009Do1373, May 13, 2010; 2010Do129234, Feb. 10, 2013).

In addition, in a case where the property of another person is disposed of in violation of his/her duties as his/her own possession, there is no obstacle to recognizing the intention of unlawful acquisition even if he/she later returns, compensates, or compensates for it. Thus, if the act of raising funds with funds withdrawn from the school expense account, etc. of each school itself, thereby resulting in embezzlement, even if the funds withdrawn from the school expense account of each school were again deposited into the school expense account of the relevant school, such circumstance does not affect the existing establishment of embezzlement (see, e.g., Supreme Court Decision 9Do214, Dec. 8, 200).

The court below found the Defendant guilty of all of the remainder of the charges of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against the Defendant, on the grounds stated in its reasoning, on the following grounds: (a) the Defendant received tuition fees from each university established by himself/herself; and (b) he/she could use them in mind for any purpose other than the purpose of direct school education, such as personal company’s funds that he/she operated; and (c) he/she used the funds deposited in school tuition accounts for the purpose of determining that the funds should be disbursed as false wages, and then should be disbursed in cash again; and (d) the Defendant’s intent of unlawful acquisition may be deemed to have been realized at the time of withdrawal as wages.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the time of establishment of embezzlement and the intent of

B. Ground of appeal No. 4

The lower court determined that the Defendant’s act of committing the instant crime constituted a separate crime of embezzlement beyond the scope of risk assessed by the existing crime of embezzlement and thereby constituting a separate crime of embezzlement, since the Defendant’s payment of some of the funds embezzled to the school expense account is “funds reverted to the new school expense account.” Thus, the lower court’s further withdrawal under the name of false wage and disbursement for the purpose not falling under the expenses directly required for the pertinent school education.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the act of ex post facto embezzlement.

2. As to the Prosecutor’s ground of appeal

The lower court found the Defendant not guilty on the grounds stated in its reasoning, on the grounds as indicated in its reasoning, that it is difficult to view that the Defendant donated a school foundation H and I’s deposits, which are the basic property of G, to have been proved without any reasonable doubt.

Examining the reasoning of the judgment below in light of the records, the above judgment below is just and acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err 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 donation, lending, and disposal under Article 28

On the other hand, the prosecutor appealed the entire not guilty portion, but there is no specific reason in the petition of appeal as to the remaining not guilty portion, nor there is no reason in the statement of appeal as to the grounds of appeal.

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 Yong-deok

Justices Lee In-bok

Justices Kim Gin-young

Chief Justice Lee Ki-taik