[1] The case holding that the crime of occupational embezzlement is established in a case where the head of the Army Army leader received and consumed the amount, including the expenses for the operation of the library room of the head of the Gun, which was set as the expense for the command of the head of the Gun Army leader's activities, on the ground that he

[2] The case reversing the judgment of the court below which found the crime of occupational embezzlement on the ground that it is difficult to view that there was an intent of unlawful acquisition, even if the head of the Army headquarters received and consumed the operating expenses of the command department and the Military Welfare Fund on a daily basis in violation

[3] The case holding that, although it is difficult to view that a donation received by the head of the Army Headquarters from the head of the sisterhood group in return for the special interview of the president's children, if he arbitrarily consumeds the above money, it constitutes a crime of occupational embezzlement

[4] The case holding that it is difficult to recognize the intention of unlawful acquisition, even if the Korea Army Command Commander did not return the balance of the training cost to the National Treasury at the end of the year, and the purpose was not to secure personal interests, but to cover the shortage of the Korea Army Headquarters, and it was not yet used to use the money and had been stored in the military unit

[5] The case holding that if the head of the Army and the defendant, who served as the vice commander of the Korea Army Headquarters, received and keeps the public funds, etc. kept and managed by an employee in charge of the accounting affairs of the Army, he shall have the status of a custodian of the public funds in the course of business

[6] The case holding that the defendant, who served as the head of the Army and the vice commander of the Korea Army Headquarters, constitutes "a person who deals with the accounting affairs of any other country" as stipulated in Article 2 subparagraph 1 (k) of the Diplomatic Officers Act

[1] The case holding that the crime of occupational embezzlement is established in a case where the head of the Army Army leader received and consumed the amount, including the expenses for the operation of the library room of the head of the Gun and the expenses for the operation of the library room of the head of the Gun.

[2] The case reversing the judgment of the court below which recognized the crime of occupational embezzlement on the ground that even if the head of the Army Army leader received and consumed the operating expenses of the Command and the Military Welfare Fund on a daily basis in violation of the accounting-related provisions on the grounds and procedures for disbursement, some of the expenses were consumed according to the original purpose of the budget, and the portion consumed with the diversion of the budget items did not have any unlawful purpose, and since the use of the budget itself does not have any strict restriction between the items, it is difficult to deem that the defendant had an intent to acquire

[3] The case holding that since the above money received from the head of the Army Headquarters from the head of the sisterhood group in return for the special interview of the chairman's children, it is difficult to view that the above money was received as a donation from the head of the Gun group in the position of the head of the Gun group, the above money was deemed to have been reverted to the competent Gun group in light of social norms, and it cannot be deemed to have been owned by an individual since it was received, and it cannot be deemed that it was private consumption

[4] The case holding that even if the vice commander of the Korea-U.S. military headquarters permitted a change in the item item items, purchased a tobacco gift with the balance of the training cost for the Korea-U.S. military headquarters training, and arranged an account book as if the remaining amount was lawfully paid to the National Treasury without going through the procedure to return it to the National Treasury, if the purpose was not for personal interest, but for personal interest, if the purpose was to cover the shortage of the Korea-U.S. military headquarters, and it was still stored in the military unit without using the money, it is difficult to recognize the intention of illegal acquisition of the above amount, regardless of the fact that the provisions of the accounting relations are kept and the administrative responsibility is held.

[5] The case holding that, where the defendant, who served as the head of the Army and the vice commander of the Korea Army Headquarters, while exercising overall control over, directing, and supervising the accounting affairs of the military units under his control, received and kept the money, such as encouragement reward expenses, operating expenses, library operating expenses, official business operating expenses, military welfare funds, donations, etc., which are kept and managed by the personnel under his control, the defendant has the status of a custodian of the public fund in the course of business of the public fund even though he is not the custodian of the above amount under the accounting-related provisions

[6] The case holding that if the defendant, who served as the leader of the Army and the vice commander of the Korea Army Headquarters, directed and supervises the leader of the Army Command and the director of the Korea Army Command's accounting division, approved the disbursement of military operating expenses, military welfare funds, etc., and performed the accounting affairs of the budget by receiving a monthly report on the details of the budget spending from the head of the military team or the assistant commander of the Korea Army Headquarters, etc. who manages the operation expenses of the military unit at the above leader, the director of the accounting division, or the assistant commander of the Korea Army Command's command, etc., and arranged the relevant accounts, the defendant constitutes "a person who performs the accounting affairs of any other country" as stipulated in Article 2 subparagraph 1 (k) of the Assistant Officer General of the Korea Army Headquarters.

[1] Article 356 of the Criminal Code / [2] Article 356 of the Criminal Code / [3] Article 356 of the Criminal Code / [4] Article 356 of the Criminal Code / [5] Article 356 of the Criminal Code / [6] Article 2 subparagraph 1 (k) of

[6] Supreme Court Decision 99Du5498 delivered on February 23, 2001 (Gong2001Sang, 780) Supreme Court Decision 2003Do6534 Delivered on October 27, 2004

Defendant

Defendant and Military Prosecutors

Dried Jin Park

Attorney Han-chul

Ministry of National Defense General Military Court Decision 2004Da32 decided May 24, 2004

1. The judgment below is reversed.

2. The defendant shall be punished by a fine of KRW 10,000,000.

3. If the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

4. Fifteen days of detention before the sentence of the original judgment is made shall be included in the period of detention in the workhouse.

5. 69,441,460 won shall be collected from the defendant.

6. The charge of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) is not guilty.

A. Defendant

(1) The embezzlement of operating expenses of the book room

It is true that the defendant received and consumed a total of KRW 1,530,000 in addition to the total of KRW 615,000,000, which was originally determined as the command activity expenses each month at the time of the head of the 3th Army head's employment. However, the fact that the above KRW 1,530,000 includes the management of the 1,530,000, but the defendant did not have received a report from the head of the 1,530,000, but did not require the defendant to pay the 1,530,000,000, the part of the 3th Army head's operating expenses received as the direction activity expenses. Thus, the court below erred by misapprehending the facts or by misapprehending the legal principles on embezzlement that the defendant embezzled the 1,530

(2) The embezzlement of the aggregate of the daily average amount of expenses for the operation of the military unit and the revenues of the welfare fund

It was true that the defendant received KRW 4,87,00 on a daily basis, including the sum of daily average revenues of the welfare fund, from the third-class head of the military group, and received KRW 4,887,00,00 for the pertinent month. However, this was intended to pay the amount to six staff members of the military unit search team, each of which was 20-30,000 won to 6 staff members of the military unit search team, and 300,000 won to 30,000 won and 50,000 won, 4 staff members of the military group and 12 staff of the military group, each of whom were 10,000 won and 10,000 won and 5-10,000 won and 8-10,000 won and 5-10,000 won and 80,000 won and 4,000,000 won and 4,000,000 won and 7,0.

(3) The embezzlement of the training costs of the KAF in 2003

The reason behind the Defendant’s failure to return KRW 10,336,00 to the National Treasury in 2003 when he/she was in office as the vice commander of the Korea-U.S. military headquarters was very insufficient in the budget of the Korea-U.S.A.A.A. to use the balance of the training increase costs in the year 2003, since the budget for the Korea-U.S. event held at the end of the year was very insufficient, the Defendant left the concept of the reserve fund and had the assistant take custody of the said money. Therefore, the lower court erred by misapprehending the facts or misapprehending the legal principles on embezzlement, thereby recognizing the Defendant to have embezzled the said money for business

(4) The point of embezzlement, such as operating expenses by the command division

In addition to the expenses directly needed to direct the military unit to which the defendant belongs, the defendant is also included in the cost of operation of the command division within the meaning of ensuring a wide sense of command of military units such as active duty service visiting the military unit, entertainment expenses for reserve-related personnel, and expenses for promoting smooth public relations. Since the defendant used the command operation expenses of this case for military personnel such as military infrastructure, old load, etc., it does not constitute embezzlement, nor should the defendant have any intention to acquire illegal profits, the court below erred by misapprehending the legal principles as to embezzlement or by misunderstanding that the defendant embezzled the command operation expenses, etc. in the course of business.

(b) Defense counsel;

(1) misunderstanding of legal principles as to the elements of occupational embezzlement

The Defendant is an employer of the budget and did not have the status of a person who keeps the budget, and even if accounting personnel are not, the lower court erred by misapprehending the legal doctrine as to the requirements for establishing the crime of occupational embezzlement, thereby deeming the Defendant as an occupational custodian of public funds and thereby

(2) misunderstanding of legal principles as to collection

The Defendant does not correspond to the “accounting personnel” as stipulated in Articles 6 and 2 subparag. 1(b) of the Act on Special Cases Concerning the Confiscation of Public Officials, and even though he did not possess “illegal property,” the lower court erred by misapprehending the legal doctrine, thereby collecting additionally the amount that the Defendant embezzled by applying Article 2 subparag. 1(k) of the above Act and the Punishment of Assistant Officers.

(3) Unreasonable sentencing

Considering the various sentencing conditions indicated in the instant case, such as the Defendant’s contribution to the State, the award and decoration relationship, the period of service, the amount of use and usage of the public funds in this case, etc., the sentence of the lower judgment against the Defendant is too unreasonable.

(c) Military prosecutors;

(1) The receipt of KRW 10 million from Nonindicted 1

The defendant, as the head of the third group group group group, serving as an administrative soldier at the headquarters of the third group group group, which is a unit of the third group group group, at the time, received KRW 10 million in relation to his duties from Nonindicted Party 1, such as having the president of the (title omitted) group non-indicted 1 special amnestys, which constitutes an act of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery). Even though it is not so, since Nonindicted Party 1 used money and valuables contributed to the defendant's military unit as the chairperson of the (title omitted) group, which is the sisterhood group of the third group, for personal purposes, for which the defendant was employed for the defendant's personal purposes, it constitutes an occupational embezzlement. However, the court below erred by misapprehending the legal principles on bribe or occupational embezzlement, thereby acquitted all of the facts charged and the ancillary facts charged.

(2) The embezzlement of KRW 4,350,00 for the purpose of acquiring gifts on April 17, 200

In light of the fact that there is no evidence to acknowledge that the defendant purchased 270 million won of public fund 4.35 million won on April 17, 2000 and all of them were paid as valuable goods by the defendant, the defendant should be deemed to have embezzled public fund for a false purchase of the above futures, but the court below found the defendant to have committed an unlawful act of misunderstanding the fact that the defendant did not embezzled it.

(3) Unreasonable sentencing

In light of the various sentencing conditions of this case, the sentence imposed by the court below against the defendant is too uneasible and unfair, and in particular, it is unreasonable that the conversion amount into the conversion amount into the conversion amount of the fine is KRW 20,000 per day.

1. Determination

(a) Basic facts;

According to the evidence duly adopted and examined by the court below and the results of the fact-finding on the Minister of National Defense and the Army Chief of Staff, the following facts can be acknowledged regarding the military operation expenses of the Army Head of the 3th Army, a financial resource for the defendant's funds in this case, the military welfare fund, consolation money or donation, the incidental operation expenses, business promotion expenses, etc. of the Army Head of the 3rd Army, a financial resource for the defendant's funds in the budget.

(1) Incidental operating expenses (operating expenses)

(1) At the time when the defendant was employed as the head of the third Army group, the guidelines for the execution of military operating expenses were in force.

(2) According to the above guidelines, the Army Security Manual, etc., the budget compiled for the operation cost of each military unit is the national defense budget to strengthen the military unit through boosting the morale and encouragement of the military in leading the military unit and contribute to the military combat force, and if the Army Headquarters through the military headquarters in each month allocates the military unit, it shall be received and kept in the military unit management office, and it shall be disbursed at that time by receiving a request from the commander, whenever the budget requires.

③ The budget for the operation expenses of the foregoing military unit is largely divided into the operation expenses of the staff group and the operation expenses of the staff group in charge of the military unit. Of these, the operation expenses of the staff group in charge refers to expenses paid to guarantee the command activities of the commander of the military unit. This is divided into command activity expenses, encouragement reward expenses, meeting expenses, expenses for the library room operation expenses, and expenses for the operation of the staff group. Among them, the operation expenses of the staff group in charge can be disbursed at the discretion of the commander of the military unit for the command activities of the commander. The budget for the operation expenses of the staff group in charge of the military unit in charge of the military unit in charge of the military unit in charge of the activities of the commander. The expense for the promotion of the staff group in charge of the military unit in charge of the military unit in charge of the performance of the duties of the commander in charge of the staff group in charge of the military unit in charge of the performance of the duties of the staff group in charge of the staff group in charge of the military unit in charge of the duties of the staff group in charge of the staff group.

④ The monthly operating expenses of the military command headquarters that the Defendant was employed as the head of the third military command group, were KRW 915,00,000 for the command activity expenses, KRW 2,166,00 for encouragement reward, KRW 65,00 for meeting expenses, KRW 615,00 for the library operating expenses of the command group, KRW 615,00 for the library operating expenses of the command group, and KRW 898,00 for the library operating expenses.

(2) Military Welfare Fund

(1) The Military Welfare Fund means net income generated by the operation of military welfare facilities and sports facilities, etc. of the third group in the Army, which accrues from the Green Community Center in the Army or the welfare center in military apartments.

② According to Article 6 subparagraph 5 of the Military Welfare Fund Act, the Military Welfare Fund may be used for projects necessary for boosting the morale of military personnel prescribed by Presidential Decree. According to Article 3 (2) of the Enforcement Decree of the same Act, projects necessary for boosting the morale of military personnel under the above Act refers to support for sports and cultural events, encouragement and reward for military units and exemplary soldiers, encouragement for military personnel in special areas and military service, encouragement for military personnel in special areas, the status of injured soldiers and their bereaved families, support for the operation of facilities for military welfare, support for job-seeking activities.

In addition, according to Article 20 of the Regulations on the Management and Operation of the Military Welfare Fund, which is the Ministry of National Defense's directives, the Military Welfare Fund can be disbursed as projects for the promotion of soldiers, etc., which are disbursed by the General Officers of various levels, in cases where it is necessary to encourage a major commander of various levels of military units, such as a mid-term, annual and late-term, training, support for the dispatch of soldiers, etc., articles of merit and monetary rewards, training, prizes and monetary rewards for the units or individuals who have contributed to combat development, 30 years old-term care, soldiers' training events, exemplary soldiers' training events, exemplary soldiers' training events, large-scale training and assistance, large-scale training and assistance, soldiers or their bereaved families at the time of national disasters, funeral cultural events, social gatherings by rank and status, volunteer gathering, support for the dispatch of soldiers abroad, support for the dispatch of soldiers from overseas, and other projects for the promotion of soldiers decided by the Welfare Committee for each military group.

(3) Donations or donations

(1) Donations and consolation money mean money and other valuables contributed by outside institutions, such as companies that have sisterhoodly concluded with the relevant military unit, and outside persons, for the promotion of military formation when they visit the military, or when they visit the military.

(2) According to the Army's guidelines for the acceptance of, and management of, money and valuables for the Army (Ch. - 45), requests for money and valuables or the receipt of unjust money and valuables for the use of various military events shall be prohibited regardless of the pretext.

(3) After reporting in advance to the commander, he/she may receive a penalty or donation by issuing a receipt to a person who provides a penalty or donation in the personnel management office. In such cases, the penalty or donation concerned shall be deposited in the revenue and expenditure custody and stored in the revenue and expenditure custody, and if the commander or the commander makes a request for use to use it according to the purport of the donor, it shall be disbursed by applying mutatis mutandis the guidelines for the payment of the expenditure of the unit.

(4) Business promotion expenses

Business promotion expenses are classified into general business expenses and expenses for local government offices. ① Among them, general business expenses may be disbursed for official business promotion, such as entertainment expenses, annual fee and regular meeting expenses, event expenses, overseas business trip support expenses, sports competition expenses, and expenses for supporting research meetings, etc.

B. Determination on the usefulness of individual budget amount

(1) The embezzlement of operating expenses of the book room

According to evidence duly adopted and examined by the lower court and the fact-finding results on the Army Chief of Staff, it is reasonable that the Defendant: (a) reported the details of the execution of the military operation expenses to the Defendant on November 9, 199; (b) reported the performance of the military operation expenses to the Defendant; and (c) stated that the cost of the military operation expenses is KRW 915,00 per month; and (d) the Defendant, who received the direction of the head of the military operation expenses and received the direction of the head of the military operation expenses from the head of the 3rd Military Administration, was not subject to the direction of the head of the 10th Military Administration and received the direction of the head of the 10th Military Administration and was not subject to the direction of the head of the 10th Military Administration and was not subject to the direction of the head of the 10th Military Administration and was not subject to the direction of the head of the 30th Military Administration and the head of the 15th Military Administration and the head of the 1005th Military Operation Expenses.

(2) The act of embezzlement of the sum of daily average income of the welfare fund and the daily average amount of income, such as encouragement reward and reward.

In the crime of occupational embezzlement, "the intention of illegal acquisition" refers to the intention of disposal of the property of another person in violation of his/her duties for the purpose of pursuing the benefit of himself/herself or a third party, such as that of his/her own property or by law. Thus, where a person in a position to execute a budget uses the budget to fill a shortage of expenses, the use of the budget item itself has an unlawful purpose, or the budget uses are strictly restricted, except in cases where the use of the budget itself is deemed to be illegal, or where the expenditure is necessary expenses to be determined or received, and where the expenditure can be permitted upon the completion of certain procedures, it cannot be readily concluded that the use of the budget was useful to fill the gap (see Supreme Court Decision 94Do2911, Feb. 10, 195).

As seen earlier, operating expenses of the Command consisting of encouragement reward, meeting expenses, and official operation expenses. Among them, encouragement reward expenses can be disbursed for the purpose of encouragement activities of the soldiers belonging to the unit, support for the withdrawal from active service, etc., and the Military Welfare Fund can be disbursed for the purpose of the use of the budget among the above items, and since the use of the budget among the above items is not strictly restricted, if the defendant consumed the military welfare fund out of the operation expenses of the Command with the encouragement reward or the military welfare fund out of the operation expenses of the Command, it was disbursed for the original purpose of the budget. In addition, even if the expenses of the Command spent out of the operation expenses of the Command for the above purpose of the above purpose, it is difficult to conclude that the defendant had an intent to obtain unlawful permission. The same applies to the operation expenses of the Command and the Military Welfare Fund even if the defendant violated the regulations on the calculation of the number of days of service days prior to the appointment of the defendant.

According to evidence duly adopted and examined and examined by the court below, the highest witness question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question question issue issue issue issue issue issue issue of command expense can be paid on a daily basis according to the number of actual working days of the commander each month, but encouragement reward expense or official work expense can be disbursed on the basis of the last day of each month as the budget amount which can be paid on the last day of the month. The execution of the profits of the Military Welfare Fund should be reported to the military headquarters through the military headquarters, 50% of the total amount of money paid to the head of the military office on the day of 20% of the total amount of money paid to the head of the military office, 30% of the amount of money paid to the head of the military office on the day of 20% of the total amount of money paid to the head of the military office below.

According to the above facts, even if the defendant received and consumed the sum of the daily average revenues of the Military Welfare Fund, such as encouragement reward costs, official operating expenses, and meeting expenses, which are calculated on a daily basis from the beginning of the month including the date of transfer to the date of transfer in violation of the accounting-related provisions, it is difficult to view that the defendant expressed his intention of unlawful acquisition, since the defendant did not strictly limit the use of the budget among the items, it is difficult to view that he expressed his intention of unlawful acquisition, since he did not indicate his intention of unlawful acquisition.

On the other hand, in this case, it was not revealed that the amount paid by the Defendant to the lower-class soldiers as an incentive was whole. As to the Defendant’s consumption of part of the above amount for private purposes, the military prosecutor bears the burden of proving that the Defendant spent it for the Defendant’s private purposes, not the encouragement money. However, unless there is no proof on it, it is difficult to readily conclude that the Defendant embezzled part of the above amount.

Nevertheless, the lower court recognized that the Defendant embezzled the above money as an occupational embezzlement, thereby misunderstanding the facts or misunderstanding the legal doctrine as to the crime of occupational embezzlement, thereby adversely affecting the conclusion of the judgment, and thus, the Defendant’s assertion assigning

(3) The consumption was made with Nonindicted 1’s KRW 10 million.

(A) Facts of recognition

According to evidence duly adopted and examined by the court below, (Name omitted) group as a military unit, shall be sisterhoodly sisterhood with three military units in the Army and visit three military units before and after October 16, 2000 each year, which is the date of the establishment of the third military unit, and (name omitted) group president of the group visited 3 military units in the middle of 100 in the year 200 where the defendant was the head of the above three military units, and remitted 10 million won to the three military unit bank accounts of the above 3 military unit on the day before the above 10th day of the visit. The defendant sent the above 10 million won to the defendant who was the head of the above 3 military unit, who was the head of the management office of the 10th military unit and the head of the 10th military unit, who was the head of the 3th military unit to receive the above 10th military unit's receipts on the day of his year-end settlement, regardless of whether the defendant was the head of the 3 military unit.

(B) Judgment on the main facts charged

Of the facts charged in the instant case, the facts charged are as follows: (a) at the office of the third group head of the Army (date omitted); (b) at the office of the third group head of the Army, Nonindicted Party 1, the president of the Group of the said third group, knew that the Defendant received KRW 10 million from Nonindicted Party 1’s children in the office of the said third group and received bribe in connection with his duties; (c) the status of the head of the military group as indicated in the facts charged; (d) the relationship between the third group and the (name omitted); (d) the purpose of the said money and valuables presented by Nonindicted Party 1; (e) the Defendant arranged books with the above money in consideration of the receipt and use of the above money; and (e) Nonindicted Party 1, the president of the Group of the said third group, who is the military unit of the said third group of the Army branch of the Army, and (e) notified the Defendant of the above money and delivered it to the said 30 million military unit of the said 300 million military unit of the first group of the above official visit.

Therefore, the court below's decision that the defendant not guilty of the facts charged above on the ground that he cannot be seen as accepting a bribe in relation to his duties does not contain any error of law in misunderstanding of facts or misunderstanding of legal principles as to bribery, and therefore the appeal by the military prosecutor

(C) Judgment on the conjunctive charges

In full view of the facts charged in the instant case, if the Defendant: (a) the president of the Group (name omitted) group, who is a sisterhood alliance with the Defendant, visited 10 million won to which he belongs; and (b) instructed the management staff to enter the amount of KRW 10 million in the said military room as if he had paid it in a false manner during his business custody; and (c) embezzled it with the intent to consume it for his own purpose; (d) the status of the Defendant as recognized earlier; (e) the place and circumstance of receiving money; (e) the relationship between the third group and the group; (f) the place and the place of receiving money; (f) the use of the said money presented by Nonindicted 1; and (f) the Defendant and the Defendant did not have any personal-friendly relationship with the third group; (c) in light of the fact that the Defendant considered it as a donation to the third group; and (d) the president of Group 1 had no personal-friendly relationship with the Defendant received money from the said 30th group leader, which is a sisterhood with the first group leader.

Therefore, the judgment of the court below that held the above preliminary charges not guilty is erroneous or erroneous, which affected the conclusion of the judgment by misapprehending the legal principles as to the crime of embezzlement on duty, and the prosecutor's assertion on this point is with merit.

(4)(Omission)The embezzlement of costs for the training of the KAF in the year.

According to the evidence duly adopted and investigated by the court below and the results of fact inquiries about the Minister of National Defense, the training costs of the Korea-U.S. military headquarters are included in the budget for unique items (201-05), and if it is intended to divert them to other items, such as travel expenses, business promotion expenses, etc., the Minister of National Defense shall obtain approval, and if it is used within the same item, the remaining budget should be returned to the National Treasury at the end of the pertinent fiscal year without using the remaining funds in accordance with the legitimate accounting procedure. The training increase cost planned without using the above special accounting procedure is the money used for the training cost of the personnel of the Korea-U.S. military headquarters, which is not the director of the accounting division, and it is difficult for the defendant to lawfully manage and disburse the remaining amount of money for the above 60th anniversary of the fixed amount of money for the above 6th anniversary of the fixed amount of money for the above 6th anniversary of the number of persons of the Korea-U.S. military currency headquarters. It is possible for the defendant to use the remaining amount of the above 40th year.

Therefore, the lower court determined that the Defendant embezzled the balance of the training costs as a job, by misapprehending the legal doctrine as to the crime of occupational embezzlement, thereby adversely affecting the conclusion of the judgment. Therefore, the Defendant’s assertion pointing this out is with merit.

(5) Points of embezzlement, such as incidental operating expenses and indirect official business expenses.

As seen earlier, the intent of unlawful acquisition in the crime of occupational embezzlement refers to the intention of disposal of the property of another person in violation of his/her duties for the purpose of pursuing the benefit of himself/herself or a third party, as in fact or in law. Thus, where a person in a position to execute the budget uses the budget to fill the shortage of expenses, the use of the item itself for the purpose of the budget is illegal, or the use of the budget is strictly restricted, apart from the case where the use of the budget itself is determined or it is necessary expenses to be determined or received, so if the disbursement is permitted upon a certain procedure, it cannot be readily concluded that the person has the intent of unlawful acquisition solely on the ground that there was utility for filling the interval (see Supreme Court Decision 94Do2911, Feb. 10, 1995).

(A) (Date omitted) using 4,350,00 won for the purpose of purchase of gifts

According to the evidence duly adopted and examined by the court below, and the testimony of Non-Indicted 3, the defendant purchased the flive flicker with public funds of KRW 4,350,000,00,000 for the first time of the year, and completed meetings for the executive officers of the year (Omission of the date) and paid to the flick's officers such as the military team commander, the flicker's leader, and non-commissioned Officer, or the flicker's flicker's relocation. In light of the above legal principles, if the defendant used the flicker's flicker's flicker's flicker's flicker's flicker's flicker's flicker's flick, and the defendant did not use the flicker's flick's flick's flur's fl's fl.

(B) Use of military operating expenses, military welfare funds, donations, and indirect official business expenses, etc.

In this case, financial resources used by the defendant are funds for the operation of military units in the third group of the Army, military welfare fund, donation or donation to the third group of the Army, expenses for the operation of military units in the first group of the Army, expenses for the operation of military units in the first group of the Korea Army Command, expenses for the operation of military units in the first group of the Korea Army Command, expenses for the operation of military units in the first group of the Ministry of National Defense, expenses for the operation of military units in the second group of the Ministry of National Defense, expenses for the operation of military units in the first group of the Ministry of National Defense, expenses for the operation of military units in the second group of the Ministry of National Defense, expenses for the operation of military units in the first group of the Ministry of National Defense, expenses for the operation of military units in the second group of the Ministry of National Defense such as funds for the operation of military service, expenses for the operation of military units in the second group of the Ministry of National Defense, expenses for the operation of military units in the second group of the Ministry of National Defense, expenses for public training, etc.

Therefore, it cannot be deemed that the defendant embezzled the expenditures of each item in the annexed sheet (3) and (4), which appears to have been disbursed for the above purpose. However, the court below held that the defendant committed an illegal act that recognizes that the defendant embezzled each of the above money as an occupational embezzlement. Thus, the defendant's assertion on this part is justified.

However, since the consumption of each item in the attached table (1) and (2), which appears that the defendant used the above budget for private purposes, such as the cost of using welfare facilities, cannot be deemed to have used for the military unit in compliance with the above criteria, there is no error of misunderstanding of facts or misunderstanding of legal principles as to the crime of occupational embezzlement in the judgment of the court below that the defendant arbitrarily consumed and embezzled it. Accordingly, the defendant's assertion on this part is without merit

C. Judgment on the misapprehension of the legal principle of counsel

(1) As to the assertion of misapprehension of legal principles as to the elements of occupational embezzlement

The duties of a person who keeps another's property, the main agent of the crime of occupational embezzlement, refers to duties that are conducted repeatedly or continuously in accordance with the social status, and the entrustment relation of another's property to another's property is established in connection with the occupational status of the custodian. As recognized earlier, the defendant's duty to supervise, direct, and supervise the accounting affairs of the third head of the Army or the vice commander of the Korea-U.S. Army, while working as the commander of the third Army or the vice commander of the Korea-U.S. military headquarters, and keeps the money after withdrawal of the money, the defendant has the status of a custodian of the public fund even if the defendant is not the main agent of the above amount under the provisions of accounting relations. Thus, the decision of the court below with the same purport is just, and there is no error in the misapprehension of legal principles as to the administrator of the occupational affairs. Therefore, this part of the defense counsel's assertion is without merit.

(2) As to the assertion of misapprehension of legal principles as to collection

Article 6 and Article 2 subparagraph 1 (b) of the Act on Special Cases concerning the Confiscation of Public Officials shall be deemed as accounting personnel, even if they are not specifically designated as accounting personnel in accordance with the official titles listed in Article 2 subparagraph 1 (a) through (j) of the Assistant Officer General of the Police Officers, if they deal with accounting affairs in the substance of their duties (see Supreme Court Decisions 99Du5498 delivered on February 23, 2001, 2003Do6534 delivered on October 27, 2004, etc.).

According to the evidence duly adopted and examined by the court below, the defendant is acknowledged as having handled the accounting affairs of the budget by guiding and supervising the managing staff of the third group of the Army of the Army of the Army of the Republic of Korea or the managing staff of the Korea Army of the Korea Army of the Army of the Republic of Korea, who is a staff member in charge of the accounting affairs, and approving the disbursement of the operating expense of the military unit and the military welfare fund of the Korea Army of the Republic of Korea, and by having the head of the third group of the Army of the Korea Army of the managing staff or the assistant officer of the Korea Army of the Korea Army of the Association of the United States of America, etc. report on the details of the budget use each month, and arranging related books. In light of the above legal principles as seen earlier, the defendant is deemed to be "a person who performs the accounting affairs of any other country" as defined in Article 2 subparagraph 1 (k) of the Korean Army of the Korea Army of the Korea Army of the Republic of Korea. Thus, this part of the judgment of the court

3. Conclusion

Therefore, the appeal by the defendant and his defense counsel is with merit as to the guilty part of the judgment below on the fact that the defendant embezzled 4,87,000 won in aggregate of the daily daily revenues of the Military Welfare Fund and the daily daily revenues of the military unit operation expenses, embezzlement of 10,36,000 won in the training cost of the Korea-U.S. military headquarters in the year, and embezzlement of 10,36,000 won in the attached table, and the disbursement of each item in the attached table (3) and (4). The appeal by the military prosecutor is with merit as to the acquittal part of the judgment of the court below on the defendant's use of 10,000 won in payment from the non-indicted 1, and without examining the argument on unfair sentencing by the defense counsel and the military prosecutor, the judgment of the court below is reversed pursuant to Article 364 (6) of the

From November 13, 2001, the Defendant served as the third unit commander of the Army, and as the vice commander of the Korea-U.S. military headquarters, from (the term of office omitted) to November 13, 2001;

1.The third-class head of the Army, during his/her term of office:

A. Although the head of the secretariat who assists the general administrative affairs of the head of the Gun group, such as the establishment of time planning, etc., shall manage and operate the above public funds in accordance with his/her instructions, such as ordering the head of the Gun office to manage and operate the above public funds in a manner different from the specific purpose of each of the above public funds, the head of the 3-Gun office located in the 3-Gun office located in Gangwon-do to use them for personal purposes (a crime prevention period omitted) by receiving KRW 615,00,000 in total 24 times in total, including the direction activity expenses, and using KRW 14,760,000,00 in total by receiving KRW 24 times in total, including the direction activity expenses, and using them for his/her private use at his/her own expense, etc. (a crime prevention period is omitted).

B. (Date omitted) The president of the (name omitted) Group 1, the sisterhood alliance of the 3th Army Group, visited the third group group by Nonindicted Party 1, who was a sisterhood alliance of the said 3th group, instructed the management staff to enter 10,000,000 won as a contribution from the head of the said military group’s office for the said 3th group, as if he had been paid as a encouragement money to his subordinate members, and embezzled it by consuming it for his private use;

2. Despite the fact that the accounting management and operation of the Ministry of Trade, Industry and Energy, during the term of office of the Vice Commander of the Korea-U.S. Army Command, the Ministry of Trade, Industry and Energy, during his/her duties, should take charge of the accounting management and operation of the Ministry of Trade, Industry and Energy, such as expenses for the operation of the Ministry of Trade, Industry and Energy, and expenses for business operation, have an assistant officer assisting the general administrative affairs of the Vice Commander manage and operate the above public funds at his/

(Date omitted) At the commander of Yongsan-gu Seoul Metropolitan Government Yongsan-gu Military Headquarters, 52,500 won of the above public funds was embezzled as total 3,001,120 won, such as recklessly consuming the above public funds under business management during the period of 36 times as shown in the table of sight (2).

1. Partial statements of the defendant in the trial court room;

1. Some of the statements made by Nonindicted 3, Nonindicted 5, and Nonindicted 6 in the trial of the political party

1. Statements of the defendant in part of the trial records of the court below;

1. The statement in the trial records of the court below as to the witness non-indicted 2 and the political research

1. In the trial records of the court below, some statements made by the witness Nonindicted 3, Nonindicted 4, and Nonindicted 5 are written.

1. Some statements in the suspect examination protocol of the accused prepared by the military prosecutor;

1. Entry of each of the statements made by the military prosecutor on Nonindicted 2 and Kim Tae-tae, and entry of some of the statements made by Nonindicted 3, Nonindicted 4, and Nonindicted 5 in the military prosecutor’s preparation

1. Entry of each of the statements made by the military judicial police officers on Nonindicted 2, 2, 3, 4, and 5 in the military judicial police officer’s preparation of each of the statements made in relation to Kim Jong-chul, Lee Jin, Lee Jin, and Park Jin-jin

1. Each investigation report prepared by prosecution investigators of the Ministry of National Defense and corresponding thereto;

1. Article applicable to criminal facts;

Articles 356 and 355(1) of each Criminal Code (Article 356, Paragraph 1, Paragraph 1, Paragraph 1, Paragraph 1, Paragraph 1, and Paragraph 2, Paragraph 1, each inclusive)

1. Selection of punishment;

Selection of each fine

1. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38(1)2, and Article 50 (A) of the Criminal Act (A. Aggravation of concurrent crimes with the punishment specified in the crime of occupational embezzlement)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Ratification;

Article 6, Article 2 subparagraph 1 (b) of the Act on Special Cases concerning the Confiscation of Public Officials, Article 2 subparagraph 1 (k) of the Act on Special Cases concerning Crimes of Public Officials, Article 355 (Article 56,440,340 (Article 1-1 (a) of the 1-3,000,000 of the 1-2) of the Criminal Act, + KRW 10,001,120 of the Decision 3,001,120 = 69,441,460 of the 1-2)

1. A violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on KRW 10,000,000 received from the president of the (title omitted) Group on October 12, 2001 from Nonindicted Party 1

The summary of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) which is the primary charge of this case is identical to that of this part in the judgment on the grounds of appeal. In such judgment, this part of the facts charged is given when there is no proof of crime, and thus, it is not guilty under the latter part of Article 32

2. (Date omitted) As to embezzlement of occupational embezzlement due to consumption of KRW 4,350,00 in the name of purchase of gifts and embezzlement of KRW 4,887,00 in total as average earnings of the Military Welfare Fund and KRW 4,887,00 in total as average earnings of the Military Welfare Fund.

The summary of each of the facts charged in the instant case is the same as that of the judgment on the grounds for appeal in this part. As such, each of the facts charged constitutes a case where there is no proof of a crime, and thus, a not-guilty verdict should be rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found to be guilty of the occupational embezzlement of Article 15 of the judgment on the relation of a single comprehensive crime, the sentence of innocence shall not

3. (Omission) As to the embezzlement of costs for training at the Korea-U.S. Military Command during the year

Of the facts charged in the instant case, the summary of the above point is the same as that of the judgment on the grounds for appeal in this part. As such, in its judgment, each of the facts charged constitutes a case where there is no proof of crime, and thus, a not-guilty verdict should be rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the court found a guilty of occupational embezzlement of Article 2 of the judgment that was prosecuted for a single comprehensive

4. As to each embezzlement in the annexed Table (3) and (4)

Of the facts charged in this case, the summary of the facts charged as to each item of the attached Table Nos. 3 and 4 is also the same in the judgment as to the grounds for appeal. In this judgment, as the facts charged in this part of the facts charged are the time when there is no proof of crime, and thus, the acquittal should be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found to be guilty of the facts charged in relation to the occupational embezzlement of Article 2 of the Decision No. 1A and the judgment No. 2,

In light of the fact that the defendant, who is a person in charge of legitimate accounting affairs at the time of holding office as the head of the 3th Army group leader, managed the director of the 3rd Army, the director of the 3rd Army office to manage the operating expenses of the command department, the military welfare fund, and the money for consolation, etc., received the operating expenses of the 10 million won for personal consumption from the management leader, and used the 10 million won for the consolation money received from the non-indicted 1 for the chairperson of the 1st group group group leader, the director of the 3th group headquarters of the Korea-U.S. Army headquarters shall exclude the director of the 10 million won who is in charge of legitimate accounting and has the assistant manage the amount of the expenses for the operation of the unit and the expenses for business promotion, and embezzled the national budget for personal use

However, the defendant did not seem to have committed the crime of this case in the motive for personal custody, the defendant did not seem to have voluntarily managed and operated the budget, etc. for a long time from the time of the president of the association, and there was no point of view as to the management of the budget sufficient for the officers in charge to manage and operate the budget, or for the audit of the higher unit's accounts. Thus, it appears that the defendant's own budget operation method has been caused to commit the crime of this case due to lack of clear awareness of illegality, the defendant's status as the chief officer in the military, who was bound by the crime of this case as the highest rank in the military, has been deprived of one-year honor as a soldier, and has contributed significantly to the development of the military and national security through long-term military service, and the punishment shall be determined as ordered by the disposition of this case in consideration of various sentencing conditions indicated in this case.

Judges Lee Jae-ki (Presiding Judge)