(영문) 울산지방법원 2021.1.13.선고 2020고단950 판결

On December 2, 2014, from around January 31, 2019 to around January 31, 2019, the Defendant worked as the Chairperson of the Victim ○○ Port Trade Union (hereinafter referred to as “victim Union”) which is a regional unit trade union that has obtained permission for labor supply business, and was in charge of overall affairs of the victims.

Around April 23, 2015, the Defendant received KRW 5,00,000 from Dok○○○, who wanted to join the victim’s association through the vice-chairperson of the victim’s association, through the vice-chairperson of the association, and voluntarily consumed KRW 95,325,869 in total for 11 times from around that time to July 25, 2018, including the Defendant voluntarily consumed the amount of KRW 5,325,869 in the special cooperative fee in the name of membership fee in the name of the special cooperative at the expense of the victim’s association, which he/she intends to join the association through the vice-chairperson of the association. Accordingly, the Defendant embezzled the amount of KRW 95,325,869 on his/her own by arbitrarily using the funds of the victim’s association while on duty.

Summary of Evidence

(Omission)

Application of Statutes

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

1. The grounds for sentencing of Articles 356 and 355(1) of the Criminal Act (a comprehensive application of the Criminal Act); 1. The scope of applicable sentences by law: One month to ten years from imprisonment.

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of Punishment] Embezzlement and Breach of Trust 01. Embezzlement and Breach of Trust / [Type 1] below 100 million won

【Special Convicted Person】

[Recommendation and Recommendation Scope] Basic Field, Imprisonment from April to April 1.

3. Determination of sentence;

In light of the circumstances favorable to the defendant, such as the fact that there is no record of criminal punishment exceeding the same power or fine for the defendant, the fact that the defendant has not agreed with the victim union shall be considered in consideration of the circumstances unfavorable to the defendant, and other circumstances shown in the records, such as the defendant's age, character and conduct, environment, motive, means and consequence of the crime, etc., the punishment as the order of recommendation within the scope of the sentencing guidelines (Provided, That giving an opportunity for additional agreements

(2) If the court does not place a statutory detention

Judgment on the argument of the defendant and defense counsel

1. The portion used at 25,749,847 won a year of crime sight No. 3

A. The assertion

Defendant borrowed KRW 50,00,000 on or around September 21, 2015, personally from ○○○○○○○, which is not the funds of the victim’s association.

B. Determination

In light of the following circumstances acknowledged by the evidence duly adopted and examined by this court, i.e., ① the victim union’s loan certificate drawn up between the Defendant and the Lee ○○○○ is indicated as the debtor, i.e., the borrower union (if a personal loan is made, it is deemed unnecessary to enter the name of the victim union), ② the above 50,000,00 won was lent to the said ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 50,00 as the funds of the victim union.

Furthermore, according to the evidence above, the defendant used 25,749,847 out of the above borrowed money for personal debt repayment, so it is sufficiently recognized that the defendant embezzled it.

(F) After the death, the victim union steering committee recognized the above loan as the defendant's personal loan.In addition, even if the defendant agreed to return the interest paid by the victim union, the crime of embezzlement does not affect the establishment of the crime of embezzlement.

Ultimately, this part of the argument by the defendant and his defense counsel is rejected.

2. The portion used of No. 7 No. 5,000,000 per annum, No. 92,450,000, and the portion used of No. 10,000,000 per annum

A. The assertion

On June 30, 2017, which is transferred from the account under the name of the victim's association to the account under the name of the defendant (amount half of the month in July, August, 2017), KRW 5,00,000 (amount half of the month in September, 2017), and KRW 12,450,000 (amount half of April, May, 2018 and half of June) that have been received from the lessor from the lessor shall be deducted from the amount of embezzlement as the full-time activity expenses of the defendant, since the full-time amount of such money has been received (or half of September, 2017 and part of the month in October, 2018) as the full-time activity expenses of the defendant.

B. Determination

1) Whether the defendant has the authority to receive expenses for full-time activities

According to the records, the victim union members concluded a labor supply contract with an external company and agreed to pay KRW 2,00,000 per month to the defendant including the defendant to union members until the income source is secured. However, according to the above facts of recognition, it is recognized that the victim union entered into a labor supply contract on July 11, 2016 between the victim union and the Bangladesh union. After July 11, 2016, it is thought that the defendant has no authority to receive expenses for the full-time officer from the victim union.

However, according to the records, the plaintiff unilaterally terminated the agreement immediately after the conclusion of the agreement to supply the above labor contract and did not have the revenue sources originally anticipated to the victim union. The defendant sent the written statement of the agreement to terminate the agreement to supply the above labor contract even after July 1, 2016, and the Fair Trade Commission filed a civil petition, while filing a civil lawsuit against the writing punishment by the first day of January 2019, the defendant continued to perform the business affairs of the victim union, such as trying to sign a labor supply contract with another company, and the victim union did not have any separate agreement on the suspension of the payment of the defendant's full-time officer's activity expenses, and the defendant should not be concluded to receive the full-time officer's activity expenses from the victim union after July 11, 2016.

2) According to the evidence duly adopted and examined by this court on June 30, 2017, the portion received KRW 5,000,000 (No. 7 per annum of crime list) and the evidence duly adopted and examined by this court, the defendant received KRW 2,00,000 per month as expenses for full-time officer activities up to June 2017, and the defendant stated the name of the defendant as "the full-time officer payment" at the time of transferring KRW 5,00,000 from the victim's account from the victim's association account to June 30, 2017 (Evidence 12 pages of evidence record). As seen above, it is difficult to conclude that the defendant was not authorized to receive the full-time officer activities after July 201, and it is reasonable to view that the defendant had a full-time officer's right to receive KRW 5,00,000,000 as expenses for full-time officer's expenses for activities within the scope of 5,000 won.

However, in relation to the remaining 3,00,000 won, the defendant did not have received the full-time officer activity expenses prior to the time of the transfer, and the victim union did not borrow 90,000,000 won (Evidence Records 82,271 pages) from the victim union at the time of the transfer, and it was the time of borrowing 90,00,000 won from the victim union (Evidence Records 82,271 pages). The defendant's hand-book or hand-off list prepared by the defendant does not include all relevant expenditure expenses (Evidence Records 82,271 pages), and the defendant did not appear to have undergone the internal approval procedure of the victim union. In full view of the above, it is reasonable to view that this part was arbitrarily consumed with the intent of unlawful acquisition.

Ultimately, this part of the argument by the defendant and his defense counsel is rejected.

3) The portion received at KRW 12,450,000 on January 2018 (No. 9 on the annual list of crimes)

According to the records, the Defendant was recognized to have returned KRW 10,00,000 from the lessor on January 2, 2018 and KRW 2,80,000 from the lessor on the 28th of the same month, and spent KRW 350,00 among them as the cost of removing signboards. However, the following circumstances acknowledged by the evidence duly adopted and investigated by the court, namely, ① the Defendant did not enter the aforementioned KRW 12,450,00 in the horizontal book prepared by the lessor (Evidence 274), and the list of admission and withdrawal (Evidence 88,91), and ② the Defendant did not receive the aforementioned KRW 17,00 from the police (Investigation of August 9, 2019), and the Defendant did not accept the part of the Defendant’s personal expenses for the full-time officer’s activities from the police (Evidence 17,574) to the Defendant’s personal expenses for the use of the aforementioned portion (Evidence 64, 2017).

4) On April 11, 2018, the portion received KRW 5,000,000 (No. 10 per annum) by the evidence duly adopted and investigated by the court, namely, ① the fact that the Defendant received KRW 5,00,000 as his/her full-time activity expenses (274 pages of evidence records) (274 pages of evidence records, but 88 pages of evidence records), ② unlike the fact that the Defendant was paid his/her full-time activity expenses prior to the transfer on April 11, 2018 (which stated the purport of his/her full-time activity expenses), it is reasonable to view that the Defendant did not arbitrarily use the above KRW 5,00,000 as his/her full-time activity expenses (Evidence No. 676), ④ the victim’s union at his/her discretion at the time of borrowing the above KRW 80,000,000 as his/her full-time activity expenses, and the Defendant did not accept the aforementioned portion as his/her full-time officer’s activity expenses (Evidence).

3. The portion of KRW 7,439,714 out of No. 11 per annum of the annexed crime sight table

A. The assertion

7,439,714 out of the amount of KRW 20,000,00 that has been transferred from the account in the name of the victim union to the account in the name of the defendant, 7,439,714, which has been confirmed by the auditor of the victim union through the settlement procedure. As such, such amount shall be deducted from the amount of embezzlement.

B. Determination

This part of the defendant's assertion is that the defendant has a claim equivalent to the expenses of the victim union since the defendant paid the individual expenses for the victim union, and that the defendant has appropriated the amount equivalent to the amount withdrawn from the funds of the victim union to the above claim.

However, in light of the following circumstances acknowledged by the evidence duly adopted and examined by this court, it cannot be deemed that this part of the settlement has been properly made, and it is reasonable to view that the Defendant voluntarily consumeds it with the intent of unlawful acquisition, in view of the following circumstances: (a) the Defendant did not check the evidentiary materials or accounting materials on which the Defendant spent personal expenses for the Victim Association; (b) whether the Defendant’s claim was appropriated from the funds of the Victim Association; and (c) the account books on the account books of the Victim Association at the time when the settlement procedures are formally conducted by the Defendant.

The acquittal portion

1. Summary of this part of the facts charged

The Defendant arbitrarily consumeds KRW 4,501,478 in the “amount of acquittal” in the attached list of crimes committed by the Defendant, thereby embezzlement by arbitrarily using the amount equivalent to the above amount of the victim association kept in his/her duties.

2. The portion of KRW 493,000 out of No. 4 2,000,000 per annum of the annexed crime list

A. The assertion

493,000 won out of the amount of 2,00,000 won transferred from the account in the name of the victim union to the account in the name of the defendant, shall be deducted from the amount of embezzlement as much as the amount is used for the business of the victim union.

B. Determination, according to the evidence submitted by the Defendant, the Defendant paid KRW 11,00,00 on March 6, 2017, and KRW 230,00 on stamp as well as KRW 37,00 on April 4, 2017, and stamp tax of KRW 115,00 on the same day, and the fact that the above amount has not been withdrawn in the passbook of the victim association on the same day is acknowledged. According to the above facts, it is reasonable to deem that the Defendant used the above service charges of KRW 2,00,000, which was deposited on March 5, 2017, for the victim association.

3. Of the attached list No. 6 No. 1,000,000 won per annum 300,000 won

A. The assertion

300,000 won out of the amount of 1,000,000 won transferred from the account in the name of the victim association to the account in the name of the defendant, shall be deducted from the amount of embezzlement as much as the amount is used as business expenses for the victim association.

B. Determination

With respect to the above 300,000 won claimed by the defendant, it is recognized that "30,000 won (the 300th of the 270th of the 2016th of the 30th of the 2016th of the 2016th of the 2016th of the 2016th of the 2016th of the 2016th of the 2016th of the 2016th of the 30th of the 300th of the 300th of the 300th of the 300th of the 2016th of the 206th of the 206th of the 206th of the 30th of the 206th of the 206th of the 30th of the 206th of the 30th of the 300th of the 300th of the 300th of the 2nd of the 3000.

4. Of the attached list of crimes No. 7 5,000,000 won 2,00,000 won

As seen earlier, see Article 2-2(b) of the “Judgment on the Defendant and the defense counsel’s assertion”.

5. Of the attached list 8 No. 3,127,500 won, 808,478 won

A. The assertion

Of KRW 5,880,00, which was transferred from the account in the name of the victim’s association to the account in the name of the defendant, 80,000, the amount of KRW 808,478 shall be deducted from the amount of embezzlement.

B. Determination

According to the evidence Nos. 13 and 14 submitted by the Defendant, the Defendant transferred KRW 5,880,000 from the victim’s association account to the personal account on July 25, 2017, and then remitted KRW 808,478 to the Hyundai Capital Capital on August 4, 2017. It is reasonable to view that the Defendant used the said amount of KRW 808,478,00 for the victim’s association, out of the amount of KRW 5,880,000 withdrawn on July 25, 2017.

6. Of the attached list 11 No. 14,500,000 won, 900,000 won

A. The assertion

90,000 won out of 20,000,000 won, which is transferred from the account under the name of the victim union to the account under the name of the defendant, shall be deducted from the amount of embezzlement as long as it is used for the business expenses of the victim union.

B. Determination

According to the records, the fact that on July 24, 2018, the Defendant intended to transfer the balance of the victim union to the Defendant’s personal account and keep it (Evidence 92 pages) is recognized. Meanwhile, according to the evidence No. 17 submitted by the Defendant, the Defendant paid KRW 80,000 on August 29, 2018, to the creditors of the victim union as interest, KRW 360,000 on September 7, 2018, and KRW 460,000 on October 1, 2018, and it is reasonable to view that the Defendant used the said sum of KRW 20,000,000 on July 25, 2018 for the sake of the victim association.

7. Conclusion

Thus, since the facts charged in this part of the facts charged constitute a case without proof of crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is judged guilty of the remaining facts charged in relation to the general crime, the judgment of

Judges

Judges or higher;

Attached Form

A person shall be appointed.

참조조문

-형법 제355조 제1항

-형법 제356조

-형사소송법 제325조

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