2011Do1701 (a) Occupational embezzlement

(b) Violation of the Act on Budget and Management of Subsidies;

1. A;

2. B

Defendants

C. Law Firm

Seoul Central District Court Decision 2010No3212 Decided January 12, 2011

January 31, 2013

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal No. 1, Article 298(1) of the Criminal Procedure Act, "the prosecutor may add, withdraw, or change charges or applicable provisions of Acts stated in the indictment with the permission of the court. In this case, the court shall grant permission to the extent that the identity of the charges is not undermined. As such, the purport of the above provision is to interpret that the public prosecutor's application for changes of indictment is not detrimental to the identity of the facts charged, and the identity of the facts charged is maintained as it is in basic respect, while the social factual relations, which form the basis of the facts, are the same in basic respect. However, when determining the identity of these basic facts, the defendant's act and social factual relations shall be based in consideration of the function of identity of the facts, and normative elements shall also be considered (see Supreme Court Decision 98Do1438, May 14, 199, etc.).

According to the records, the amendment of a bill of amendment made at the first instance court and the original instance court added a violation of the Act on the Management and Budget of Subsidies in which some crimes of occupational embezzlement and commercial concurrence among the facts charged in this case are added, while maintaining the basic facts of the embezzlement act, supplementation of the entrance fee process, correction of the victim only based on legal evaluation based on the same facts, and rhythizing the expressions of the facts charged. Thus, in light of the above legal principles and the process of the lawsuit in this case, the amendment of a bill of amendment was made within the extent that does not harm the identity of the facts charged. Thus, the above amendment of a bill of amendment was made within the extent that it did not infringe the identity of the facts charged. Thus, it cannot be said that the first instance court and the original court did not err by misapprehending the legal principles on the amendment of a bill of amendment, contrary to what is alleged

2. As to the ground of appeal No. 2, the custody of the property in the crime of embezzlement refers to the status of actual or legal control over the property and the custody thereof should be based on the consignment relationship. However, it does not necessarily require that it is established by a contract such as loan of use, lease, delegation, etc., and may also be established by the business management, custom, cooking, good faith principle, etc. In addition, even if it is an occupation assistant under the Civil Act, if it actually exercises control over the property, it can be seen as the subject of custody under the Criminal Act (see Supreme Court Decision 2003Do3840, Sept. 23, 2003).

In light of the circumstances indicated in its reasoning, the lower court determined that the Defendants were in the custodian’s position on each of the instant project costs or subsidies in light of the following: (a) the Defendants planned each of the instant projects and applied for external project costs or subsidies, and directly managed, executed, and settled accounts by means of withdrawing or depositing them into their own accounts; and (b) the Defendants were in the position of custodian for each of the instant project costs or subsidies.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the status of a person in charge of occupational embezzlement.

3. As to the grounds of appeal Nos. 3 and 4, using funds entrusted to others for purposes other than for the purpose of using funds, which are strictly limited for the purpose of its use, is derived from the personal purpose, as well as from the personal purpose, and even if the person who entrusted the funds, the act of use itself realizes the intention of unlawful acquisition, thereby constituting embezzlement (see, e.g., Supreme Court Decisions 2007Do9755, Feb. 29, 2008; 2010Do987, Sept. 30, 2010).

The lower court determined that, in full view of the following circumstances: (a) the Defendants received from D’s business expenses; (b) the State subsidies received from H for business; (c) the Defendants received from H; and (d) the subsidies for the use of K’s exercise, which are funds strictly limited to the use; (b) the Defendants, the person in charge of each of the pertinent business departments, opened a separate account and received the said subsidies; (c) the Defendants received some of the business expenses or subsidies from the relevant department, and used them for the employees’ benefits, operating expenses, etc.; and (d) the Defendants transferred part of the business expenses or subsidies of the instant case to L’s central accounts and the payment of employees’ benefits; or (d) the Defendants’ personal accounts that received some of the subsidies of this case, etc. from the Defendants’ personal accounts that were deposited with the said subsidies of this case, the Defendants transferred part of the Defendants’ fixed deposit funds, apartment purchase expenses, and studying expenses to the Defendant’s personal account under the name of each of the instant projects, which was not related to the use of each of the instant funds.

According to the evidence duly adopted, "D's Regulations on Donations" provides that organizations that received donations shall submit a report on the use of donations within 30 days and that shall not recover donations or provide future subsidies, and Article 22 (1) of the former Act on the Budgeting and Management of Subsidies (amended by Act on the Management of Subsidies, July 25, 201; hereinafter the same shall apply), which serve as the basis for subsidies granted by F, shall not use subsidies for any other purpose. "Article 34 (1) shall clearly separate the revenues and expenditures of the subsidy granted to the subsidized operator from their own account and shall keep separate accounts. Article 11 of the M&D Ordinance provides that "No subsidy shall be used for any other purpose" and "no subsidy may be used for any other purpose," and the Defendants’ funds cannot be used for the limited purpose or for any other purpose, and shall not be used for the limited purpose or for any other purpose, in light of the legal principles as seen above, nor shall the Defendants’ funds be used for the limited purpose or for any other purpose."

However, according to the records, it is not appropriate for the court below's decision that the defendants' money received from H was entrusted to H with the program "I", and paid KRW 48 million, and it did not strictly limit the use of the above fund under the provisions of statutes or the internal regulations of H, and it is difficult to conclude that the above funds paid by H were strictly limited, since there are no other data to limit the use of the above funds, it is difficult to conclude that the above funds paid by H are funds that are strictly limited to the use of the funds received from H. However, according to the facts established by the court below, since the defendants can be aware of the fact that some funds remitted to the personal account of the defendants among the above funds received from H were used for their personal use, it does not interfere with the establishment of illegal acquisition intent and embezzlement, and therefore, the conclusion of the court below is justified that the defendants transferred some funds to the personal account in the name of the defendants, thereby expressing the intent of unlawful acquisition and embezzlement.

Ultimately, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the timing of acceptance or intent of unlawful acquisition in embezzlement, thereby adversely affecting the conclusion of the judgment.

4. As to the ground of appeal No. 5, this part of the ground of appeal is alleged to be unacceptable to Defendant B, who merely transferred money to L’s account under the direction of the superior, and Defendant B cannot be recognized.

4. The court below did not make a decision on the assertion that there was no withdrawal of KRW 35 million on 25.3 and 5 million. However, the court below determined that the Defendants were the custodian of the crime of occupational embezzlement as seen above, and based on the evidence, the court below determined that Defendant B was the custodian of the crime of occupational embezzlement. L on April 25, 2005.

In addition, Article 323(2) of the Criminal Procedure Act provides that the judgment on the above assertion should be clearly stated as to the legal grounds barring the formation of a crime, the aggravation of punishment, or the statement of facts that are the grounds for reduction or exemption. “Inasmuch as the aforementioned provision provides, it cannot be deemed unlawful even if the lower court did not determine on the assertion that it does not constitute the elements of a crime as above.

5. Where the ground of appeal No. 6 does not pose a substantial disadvantage to the defendant's exercise of the defendant's right to defense, it does not violate the principle of no accusation even if the court acknowledged facts different from the facts charged without going through changes in indictment to the same extent (Supreme Court Decision 2011.

6. 24. See, 201Do5690, etc.)

The court below acknowledged the criminal facts that the Defendants embezzled KRW 20,424,697 by receiving subsidies from J to receive KRW 57 million from J to deposit KRW 18,00,000 among them into the Defendant’s Dong-in account, and deposited KRW 25,090,00 among the above subsidies to D’s Dong-in account, but did not return KRW 20,424,697, which remains in D’s account even though the above exercise was completed while the Defendants deposited KRW 25,09,00 among the above subsidies to D’s Dong-in account, and thus, he embezzled the above KRW 20,424,697 as wages, etc. to employees, and recognized that there was any error in the facts charged, contrary to the facts charged.

In light of the above legal principles and the process of the instant lawsuit, even if the Defendants embezzled some of the amount of KRW 20,424,697 remaining in D’s account after the completion of the above exercise without returning it, it does not seem to have any substantial disadvantage to the Defendant’s exercise of the Defendant’s right to defense, and thus, contrary to what is alleged in the grounds of appeal, the lower court did not err by violating the principle of non-defluence, contrary to what is alleged in the grounds of appeal.

6. As to ground of appeal No. 7

A prosecutor may decide whether to institute a public prosecution in consideration of the age, character and conduct, intelligence and environment of the suspect, relationship with the victim, motive, means and consequence of the crime, circumstances after the crime, etc. (Article 247 of the Criminal Procedure Act). A public prosecutor cannot assert that the right of equality has been infringed solely on the ground that a person who initiated a public prosecution on the ground that his/her act constitutes the elements of crime (Article 247 of the Criminal Procedure Act) is another person for whom no public prosecution has been instituted even though he/she simply performed an act that meets the requirements of the same crime as himself/herself (see, e.g., Supreme Court Decision 2006Do1623, Dec

In this case, even if the prosecutor brought a prosecution against the Defendants on the part of the subsidies, etc. of this case, without taking any question as to the practical performance of L, etc. used for the employees’ benefits, such circumstance alone cannot be deemed as going beyond the discretion of prosecution or infringing the Defendants’ right to equality.

In the same purport, the lower court did not err by misapprehending the legal doctrine on the institution of public prosecution against the right to equality, contrary to what is alleged in the grounds of appeal.

7. As to the ground of appeal No. 8, Article 2 of the former Act on the Budgeting and Management of Subsidies provides that "subsidies" refers to subsidies (limited to subsidies to local governments, and those to funds for facilities or operation of corporations or individuals) and charges granted by the State for the purpose of creating them or providing financial assistance (limited to subsidies to local governments, and those to funds for facilities or operation of corporations or individuals), and "subsidized projects" refers to affairs or projects subject to subsidies, and "subsidized project operators" refers to persons who carry out a subsidized project (subparagraph 2), and "subsidized project operators" pursuant to Article 41 of the same Act. Article 22 (1) of the same Act provides that "a subsidy project operator shall not use subsidies for any other purpose" and "a person who uses subsidies for any other purpose in violation of Article 41 of the same Act."

Article 43 of the same Act provides that punishment shall be imposed, and joint penal provisions for corporations, etc. shall be provided.

In light of the contents and purport of the above provisions, it is reasonable to view that "a subsidized business operator" under Article 22 of the above Act may include a natural person who carries out a subsidized business in detail, such as representative or working person, if the subsidized business operator is a juristic person or organization.

The judgment of the court below to the same purport does not err by misapprehending the legal principles on the subject of a violation of the Act on the Budgeting and Management of Subsidies, as alleged in the grounds of appeal

8. Conclusion

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

Justices Shin Young-chul.

Justices Lee Sang-hoon

Justices Kim Yong-deok

Justices Kim So-young