2012No3931 Embezzlement

A

Defendant

Plux (prosecutions) and the last citizen (public trial)

Attorney J

Daegu District Court Decision 2012Ma3912 Decided November 22, 2012

oly 10, 17

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

The Defendant received KRW 200,000 from the victim E and used KRW 49,80,000 among them as Defendant’s living expenses, Defendant’s debt repayment, etc. However, the above KRW 200,000 includes both the agreed amount to be paid to the victims of the larceny incident against F, the father of the victim E and the former wife H, and the expenses to be incurred and expenses to be incurred. The Defendant, as the Defendant was released by agreement with the victims, was 200,000 won, and the remaining amount after the agreement is not necessary to return, or the Defendant’s implied consent was given to arbitrarily dispose of the remaining amount. Even if the Defendant used the said money, the crime of embezzlement is not established. The lower court erred by misapprehending the facts or misapprehending the legal doctrine.

2. Determination

A. The money entrusted with the purpose and purpose of use is reserved to the truster until the money is used for the prescribed purpose and purpose. Thus, if the trustee voluntarily consumes the money, the crime of embezzlement is established (see Supreme Court Decision 2008Do3787, Oct. 9, 2008).

B. According to the evidence duly adopted and examined by the court below and witness E and H, the following facts or circumstances are acknowledged. In other words, (1) When F was under detention investigation due to a special larceny suspicion that stolen another person’s property over 58 times a total of 168 million won, the victim E requested the defendant to agree with the victims of the F criminal case, and (200 million won as expenses necessary for the agreement, deposit money, and agreement was entrusted to the G attorney-at-law office which is F’s counsel, and (2) the defendant used the above money whenever necessary in the course of attending the agreement. ② During the process of making an agreement with the victims of the F criminal case, the defendant received the necessary agreement and expenses from the G attorney’s office and recorded the date and amount each time when G did not reach an agreement with the victims as to how to pay the balance to the victim’s debt and amount, regardless of the amount of the victim’s balance between the victim’s debt and E in the investigation agency, and the Defendant did not have reached an agreement with the victim’s remaining 200 million won.

In full view of the above facts and circumstances, the aforementioned KRW 200 million was entrusted to the victims of F criminal cases for specific purposes to use the said money as a deposit and expense necessary for the recovery of damage, and the Defendant was obligated to use the said money in accordance with the purport of the entrustment. Nevertheless, the Defendant, contrary to the purport of the entrustment, voluntarily consumed the said money as the Defendant’s living expenses, and the Defendant’s debt repayment for the Defendant’s debt, which were irrelevant to the agreement, constitutes embezzlement.

Even if the Defendant agreed with the victims on behalf of F, and the victim E made a speech or behavior to the effect that the victim E would make compensation as alleged by the Defendant, insofar as the details of use, such as agreed money and deposit money, and the balance are not settled with the victim E and is consumed at will without agreement on the disposition of the balance, the Defendant’s intent of embezzlement and intent of unlawful acquisition may be fully recognized.

The court below's finding the defendant guilty of the facts charged of this case is just and there is no error of mistake or misapprehension of legal principles.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge, the senior judge

Judges Kim Gin-han

Judges Maximum Beneficiaries