208No3896 Occupational embezzlement

A (53years, South Korea), drivers

Both parties

Man-Consul

Busan District Court Decision 2008 Godan2966 Decided September 30, 2008

December 19, 2008

The judgment of the court below is reversed.

The sentence of sentence against the defendant shall be suspended.

1. Summary of grounds for appeal;

A. Summary of grounds for appeal by the defendant

The gist of the Defendant’s grounds for appeal is that: (a) even though the x Transport Co., Ltd. is obligated to pay the cost of occupation-oriented trial of the Tex, a transport employee, in accordance with Article 3 of the Guidelines for the Enforcement of the Total Management of taxi Transport Revenues (No. 292 of the Ministry of Construction and Transportation Directive) on September 14, 2002, the Defendant’s use of part of the transport earnings as meal costs, such act is legitimate and does not constitute embezzlement; and (b) the said company paid the Defendant wages lower than the standard prescribed by the Minimum Wage Act to the Defendant, and did not pay a regular bonus on the ground that the Defendant’s use of the costs of meals out of the transport earnings constitutes a person with unpaid monthly transport earnings of at least 300,00

B. Summary of prosecutor's grounds for appeal

The sentence of the court below against the defendant (the fine of KRW 1,00,000, the suspended sentence) is too unfluent and unfair.

2. Determination

A. Ex officio determination

Before the judgment on the grounds for appeal by the Defendant and the Prosecutor was made ex officio, the Prosecutor changed the facts charged in the trial from the trial to May 21, 2008, to the sum of KRW 402,500 in the same way as indicated in the List of Crimes in the attached Table from the day of Busan to the day of May 21, 2008, and embezzled it in the same way as in the attached Table (Omission) from the day of September 24, 2008. The Prosecutor changed from the day of Busan to the sum of KRW 683,90 to the sum of KRW 130 times in the same way as indicated in the List of Crimes in the attached Table (Omission) and the judgment of the court below was changed to the sum of KRW 130 times in the same way, and thus the judgment of the court below was no longer maintained. However, since the Defendant’s assertion of misapprehension of legal principles is still subject to the judgment of this court even if there was a ground for ex officio reversal, this will be examined below.

B. Judgment on the grounds for appeal by the defendant

The crime of embezzlement in Article 356 of the Criminal Act is established when a person who keeps another's property embezzled or refuses to return the property, and the crime of embezzlement is not established on the ground that the person voluntarily consumeds another's property, and that the latter returned the article embezzled or repaid the corresponding amount.

In light of the evidence duly adopted and examined by the court below, the defendant adopted the so-called so-called "total amount management system" in which the defendant entered into an employment contract with the company, and the defendant paid the transport income in full to the company and received a monthly fixed wage from the company. The defendant arbitrarily used the transport income from December 11, 2007 to September 24, 2008, the total sum of 683,900 won out of the transport income as meal expenses, and the above company and the defendant did not agree to pay the transport income separately or use part of the transport income as meal expenses.

In light of the above facts, since the defendant paid the transport income in full between the above company and received monthly wages from the company, the defendant's arbitrary use of the transport income as meal expenses without the company's consent while keeping the above transport income belongs to the whole company, it constitutes embezzlement. The defendant, on September 14, 2002, provides that "all expenses necessary for vehicle operation (including expenses, rent, vehicle repair expenses, accident disposal expenses, etc.) are appropriated for transport income or other money," and the above expenses are not included in the above expenses for taxi transportation business operator's violation of the provisions of Article 3 of the Enforcement Rule of the Passenger Transport Service Act, since the defendant's use of the above transport income without the company's consent is merely an act of embezzlement. Since the defendant's use of the above transport income without the company's consent, it cannot be viewed that the above expenses for taxi transportation are not included in the calculation of meal expenses and food expenses for taxi transportation employees, it cannot be viewed that the above provision of the Enforcement Rule of the Passenger Transport Service Act should not be established because it does not affect the aforementioned guidelines for the defendant's internal use of meal expenses.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act without examining the prosecutor's assertion of unfair sentencing, on the ground of ex officio reversal, and the following decision is again rendered.

Criminal facts and summary of evidence

The summary of the facts constituting an offense and evidence acknowledged by this court is as follows: "The sum of 50,300 won was consumed and embezzled in mind from Japan to August 31, 2008 by the same method through 123 times as shown in the annexed list of crimes" among the facts constituting an offense in the judgment of the court below, which changed from around September 24 to "from around September 24, 2008 to 683,90 won in total from Japan in the same way as shown in the annexed list of crimes" and except for the change to the annexed list of crimes in the annexed list of the judgment of the court below to the annexed list of crimes in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 356 and 355(1) of the Criminal Act (Selection of Fine)

2. Aggravation of concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

3. Punishment for which a sentence is suspended.

Fines 1,000,000

4. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act (Conversion of KRW 60,000 per day)

5. Suspension of sentence;

Article 59(1) of the Criminal Act (ConsiderationS 1) (ConsiderationS 1)

Grounds for sentencing

In light of the following circumstances: (a) transport earnings voluntarily consumed by the Defendant are entirely deducted from the benefits, and there is no damage suffered by the victim; (b) the Defendant was paid monthly salary below the minimum wage; (c) the Defendant was not subject to criminal punishment; and (d) the Defendant’s age, character and conduct, family environment, and branch business are examined; and (c) the sentencing criteria specified in the pleadings of the instant case is determined as the same as the order.

The presiding judge, the number of judges

Judge Park Jae-in;

Judges Nam-jin