Defendant

Both parties

Courtroom (prosecution), decoration and decoration (public trial)

LLC et al., Counsel for the defendant-appellant in charge of the Pacific LLC et al.

Suwon District Court Decision 2012Da4131 Decided October 16, 2013

The judgment of the court below is reversed.

The defendant shall be innocent.

【Judgment on Grounds for Appeal】

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misapprehension of legal principles

A) According to the purport of Article 60-2 main text of Article 60-2 of the Elementary and Secondary Education Act, which excludes the application of Article 30-2 and Article 30-3 of the Elementary and Secondary Education Act to foreigners’ schools, Article 29(6) main text of the former Private School Act (amended by Act No. 12125, Dec. 30, 2013; hereinafter the same) does not apply to ○○○○○ School (hereinafter “○○ School”).

B) Since ○○○○○ school and △△△△ school are actually a single school, transferring ○○○ school funds to △△△△△ school does not correspond to school expenses accounting exclusive, and ○○ school did not operate separate accounts for school expenses. Therefore, it cannot be deemed that the funds that ○○ school sent to △△△△ school are diverted from school expenses accounting.

C) Since the ○○○○ School received a loan from a bank to support the construction funds of △△△△ schools, the loan is not intended to cover the expenditure of the school expenses accounts, and thus does not constitute the revenue of the school expenses accounts. Therefore, the loan is not included in the school expenses accounts.

라) 피고인은 별지 범죄일람표 순번 1∼3번 기재 금원을 미국의 투자회사 ▷▷▷ ▷▷에 대한 예치금을 송금하기 위하여 △△△△△학교의 계좌로 이전하였고, 이후 ▷▷▷ ▷▷로부터 대출을 받아 그 대출금의 일부를 ○○○○○학교가 사용하려고 하였으므로 위와 같은 금원 이전 행위를 ○○○○○학교의 교비를 전용한 것으로 볼 수 없다.

E) The amount stated in the [Attachment 9] No. 9 is that the real estate of △△△△ school was paid in return for the purchase of the real estate by ○○○○ school, which is not an exclusive account for school expenses

F) At the time of supporting △△△△ school money as indicated in the facts charged in the instant case, the Defendant did not have awareness that such support was illegal as it constitutes the diversion of school expenses accounts. As such, there was a justifiable reason that the Defendant did not recognize illegality. Thus, the Defendant cannot be punished by Article 16 of the Criminal Act.

2) Unreasonable sentencing

The sentence of the court below against the defendant (one year of imprisonment, two years of suspended execution) is too unreasonable.

(b) Prosecutors;

(1) misunderstanding of facts

Since the Defendant approved or was aware of the fact that Nonindicted Party 1 deposited the money set forth in [Attachment 6 and 8] Nos. 6 and 8 into the account of △△△△ School, the lower court’s judgment that acquitted this part of the charges is erroneous in matters of mistake of facts.

2) Unreasonable sentencing

The sentence of the court below against the defendant is too unjustifiable.

2. Summary of the facts charged in this case and the judgment of the court below

A. Summary of the facts charged in this case

On June 12, 2006, the Defendant established the ○○○ School at Suwon-si ( Address 1 omitted) with the authorization of the superintendent of an office of education of Gyeonggi-do on June 12, 2006, and is a private school operator who operated the above school as the general superintendent of the ○○ School until August 31, 201.

In addition, the Defendant is running the above school as the general superintendent of the △△△△△△ School (on the present △△△△△ School), located in the Daejeon ( Address 2 omitted) from around 1996, which was prior to the establishment of the ○○○○ School.

The operator of a private school shall not transfer or lend income belonging to the accounts of school expenses to other accounts.

Nevertheless, as the teachers of △△△△ school has deteriorated, the Defendant promoted the business of newly building and moving a teacher to the site in the Daesung-gu ( Address 3 omitted) which was leased from around 2009 to the Daejeon Metropolitan City for 20 years, but as the financial difficulties make it difficult to cover the construction capital due to the financial difficulties, the Defendant was willing to lend the revenue belonging to the school expense accounts of △△△△△△△△△ school to the school.

Accordingly, on January 4, 2011, the Defendant lent KRW 2.2 billion to △△△△ school, which belongs to the school expense accounts of the above school, from that time to May 31, 2011, from that time, the Defendant loaned KRW 13,642,30,000 to △△△△△△△△△△ school in total, a total of 12 times as shown in the attached crime sight table.

B. The judgment of the court below

For the following reasons, the lower court acquitted the Defendant on the act of lending KRW 11,442,30,00 in total over 10 times as indicated in the [Attachment Table Nos. 1 through 5, 7, 9, and 12] among the facts charged in the instant case, as to the act of lending KRW 2.2 billion in total, as indicated in the [Attachment Table Nos. 6 and 8].

1) 원심은 자세한 근거를 들어, ① ○○○○○학교에 구 사립학교법 제29조 가 적용되고, ② ○○○○○학교와 △△△△△학교는 별개로 설립인가 되고 예산도 별도로 운영되는 독립된 학교로서 두 학교를 동일한 학교로 볼 수 없으며, ③ △△△△△학교에 대여된 ○○○○○학교의 운영자금과 대출금은 모두 교비회계의 세입에 해당되고, ④ ▷▷▷ ▷▷로부터 차용할 금원을 ○○○○○학교가 사용할 목적을 가졌다고 볼 수 없으며, ⑤ 별지 범죄일람표 순번 9번 기재 금원도 대여금으로 지급된 것으로 판단되고, ⑥ 피고인이 ○○○○○학교의 금원을 △△△△△학교에 대여하는 것이 위법하다는 인식을 하지 못하였다 하더라도 그에 대해 정당한 이유가 있다고 하기 어렵다는 이유로 피고인의 주장을 모두 배척하였다.

2) The lower court determined that, in light of the following facts: (a) there is no evidence that the Defendant permitted or approved the transfer of funds listed in attached Tables 6 and 8; (b) Nonindicted Party 1, who was entrusted by the Secretary General of ○○○○○○ School with the affairs related to the transfer of the site for △△△△△△ School, was in the custody of Nonindicted Party 1 in the account transferred to Nonindicted Party 1; (c) Nonindicted Party 1 was also in the custody of the head of the Tong; and (d) Nonindicted Party 1 was in the account of △△△△△△△△△ School managed by Nonindicted Party 1 on May 4, 201; and (e) the remaining KRW 1 billion was returned to the account of ○○○○○○ School on September 5, 2011, Nonindicted Party 1 cannot be excluded from the possibility that he arbitrarily instructed the transfer; and (e) the evidence submitted by the Prosecutor alone alone did not prove any reasonable doubt as to this part of the facts charged.

3. Judgment of the court below

A. As to the misapprehension of facts and misapprehension of legal principles by both parties

In light of the records, a thorough examination of the evidence of this case is conducted by the court below as to the defendant's assertion as to the above 1. A. (a) through (e) of the above 1.1 through (n). Since the court below is justified in rejecting the above argument of the defendant for the same reasons as 2.b. (1) through (n) the court below rejected the defendant's assertion, this part of the appeal is without merit that there is misconception of facts and misapprehension of legal principles in the court below's rejection of the defendant's argument, and the court below is also justified in the court below's decision of not guilty of the transfer of the money listed in

B. As to the assertion of error of law

Article 16 of the Criminal Act provides that an act of misunderstanding that one's own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there are justifiable grounds for misunderstanding. However, it is generally accepted that his act constitutes a crime, but it does not constitute a crime under the Acts and subordinate statutes in his own special circumstances, and if there are justifiable grounds for misunderstanding, it shall not be punishable. Whether there exists justifiable grounds shall be determined depending on whether the act of misunderstanding is not aware of the illegality of his own act as a result of misunderstanding, even though it was possible to recognize the illegality of his act if the act was done in full with his intellectual ability, even though it was possible to recognize the illegality of his act, and the degree of efforts necessary for recognizing the illegality should be determined differently depending on the situation of the act, the awareness ability of the actor, and the social group to which the actor belongs (see Supreme Court Decision 2005Do3717, Mar. 24, 2006).

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, the defendant did not have awareness that lending ○○○ school funds to △△△△△△ school as stated in the facts charged in this case violates Article 29 of the former Private School Act, which is a provision on the accounting management of the private school, and there was a justifiable reason therefor.

① Under Article 2 of the former Elementary and Secondary Education Act, it is difficult to interpret the provisions of Article 2 of the Elementary and Secondary Education Act as to the establishment of a foreigners’ school; Article 60-2 of the Elementary and Secondary Education Act; Article 51 of the former Private School Act is applicable to a foreigners’ school; Article 29 (1) of the former Private School Act provides that it may cause confusion as to the legal provisions applicable to a foreigners’ school; Article 29 (6) of the former Private School Act provides that the provisions regarding the establishment of a foreigners’ school shall not apply to a foreigners’ school, which is not applicable to a foreigners’ school under Article 6 of the former Private School Act; and Article 30-2 of the Elementary and Secondary Education Act provides that the provisions concerning the establishment of a foreigners’ school shall not apply to a foreigners’ school, which is not applicable to a foreigners’ school, as stated above, if the said provisions are not applicable to a foreigners’ school, such as the establishment of a 00 school.

② Article 31 (Submission of Budget and Settlement of Accounts) of the former Private School Act provides that “(1) A school foundation shall report and publicly announce the budget prior to each fiscal year under the conditions as prescribed by the Presidential Decree, and the settlement of accounts after the end of each fiscal year to the competent agency.” (2) If it is deemed that the budget under paragraph (1) has been compiled in violation of the accounting-related Acts and subordinate statutes, etc., the competent agency may guide a private school manager to correct it. According to the above provision, if the competent agency determined that the budget and settlement of accounts have been reported from ○○ school, and that the contents have violated the accounting-related provisions prescribed in the former Private School Act, etc., it would have been deemed that the competent agency had directed the correction thereof, and if it did not know that the accounts of ○○ school, which belongs to the school, were operated separately from the opening of ○○ school on September 206, 2011, it appears that the former Private School Act should be applied.”

③ From September 23, 2011, Nonindicted 15’s accounting firm confirmed that Nonindicted 15 loaned the instant money while conducting the “end-end audit” of ○○○○○ School from September 23, 2011. However, accounting firms suggested improvement to the effect that the lending of money was contrary to the former Private School Act or relevant statutes, and that “in lending of money, the lending must clearly state the lending amount, interest rate, maturity, and other terms and conditions of transaction.”

④ When preparing for the establishment of ○○○○ school, the Defendant expressed his intention to appropriate the self-paid portion as the borrowed money borrowed from △△△ school, and Gyeonggi-do, on March 31, 2005, the Defendant sent a public notice to the effect that “The Gyeonggi-do Office of Education refused to receive an application for approval for the establishment of a school on the grounds that the borrowing of expenses for facilities, equipment, etc. at △△△△ school and redemption of the borrowed money from the operating income after opening the school at ○○○ school violates the accounting independence principle of the school, and is contrary to the Gyeonggi-do basic principles for the establishment of schools for foreigners (an independent foreigners’ school, equipment, etc.) of Gyeonggi-do, and thus, requests confirmation as to whether the Defendant’s self-paid expenses are met.” However, the above public notice is more than demanding the fulfillment of the Defendant’s self-paid school’s funds to be faithful to the school’s funds of △△△△△ school, and thus, it does not seem to have any justifiable ground for rejecting the Defendant’s assertion.

On the other hand, on April 4, 2005, the Defendant sent an answer to the Governor of the Gyeonggi-do on the above public notice to the Governor of the Gyeonggi-do, stating, “When △△△△△ school opens the operating fund required for the early opening of ○○○○○ school and is able to operate the school independently in an appropriate period, it is not unreasonable to receive the principal in full redemption of interest without interest,” and, in order to establish ○○○○○ school, expressed his intention to borrow and repay money from △△△△△△ school in order to establish ○○○ school, and on May 1, 2006, the Defendant finally submitted an application for school establishment authorization to the Superintendent of the Gyeonggi-do Office of Education, and submitted an application for school establishment authorization to the Superintendent of the Gyeonggi-do on the attached documents, “documents on operating expenses and maintenance methods of ○○○ school,” stating that the method of raising funds is appropriated for loans from foreign enterprises and △△△ school”, and that the establishment of ○○ school is recognized in accordance with the above application.

In light of the developments leading up to the establishment of the ○○○○ school, it seems to have been indirectly confirmed by the competent authorities that, in the process of the establishment of the ○○ school, “it is problematic that ○○ school borrows funds from the competent authorities △△△△△ school,” and, even though the Defendant stated in the application for the establishment authorization that ○○○ school will borrow money from the △△△△△ school for the operation of the ○○○ school, the Defendant, who was given authorization from the competent authorities, was generally aware that the lending of funds between the two schools, is not a matter of law due to special circumstances, even if the lending of funds between the two schools is legally problematic.

⑤ According to the records of this case, on August 30, 2010, the Defendant stated in the general report submitted at the board of directors at △△△△△△△△ school, that “The △△△△△ school intends to obtain loans of KRW 3 billion from ○○○ school for construction.” On October 4, 2010, the head of ○○○○ school, which is the members of the Steering Committee, sent the meeting agenda to the head of △△△△△△△△△△△△△○ school, which was written at the meeting of △△△△△△△△△△△△△△, on the 3rd meeting’s general meeting, which was written at the meeting of △△△△△△△△△△△△△△△△, which was written at the meeting of △△△△△△△△△△△△△, which was written at the meeting of △△△△△△△△△, which was written at the meeting of 201.

In light of the following circumstances acknowledged by the above facts, i.e., the Defendant appears to have been aware that the case of lending funds to ○○○○ school was an important agenda to be reported to the Steering Committee, and in light of the amount or content of the meeting minutes of the Steering Committee, the Defendant could not be recognized to have omitted the Defendant’s report solely on the ground that the Defendant only stated the very brief contents, such as the order of progress of the meeting, etc., and there is no content that the Defendant reported the instant funds to ○○ school. It is difficult to believe that the Defendant omitted the report at the Steering Committee on the actual matters to be reported in the document to inform the opening of the Steering Committee, which actually stated that the support for △△△△△△ school was the total amount to be reported, against the rule of experience, and it is difficult to report the instant funds lending case that may have a enormous burden on the finance of the ○○○ school, and it appears that the Defendant actually reported the matters concerning the lending of funds to the above Steering Committee, which is a public official of the pertinent school.

6) The lower court explained, as evidence against the Defendant’s argument, the statement that Nonindicted 7, a person in charge of accounting affairs, stated in Nonindicted 7’s statement that “The Nonindicted 7, a person in charge of Nonindicted 7’s accounting affairs, filed an objection to Nonindicted 1’s transfer of ○○○ school to △△△△△, on January 201, to Nonindicted 1, who was the secretary general, of Nonindicted 14, who was in charge of Nonindicted 7’s audit of ○○○ school and △△△△△△△△ school, could have been at issue if the money of two schools were raised.” However, there is no ground to view that Nonindicted 7 was aware of the Defendant’s objection not directly raised

⑦ 이와 같이 ㉮ 초·중등교육법과 구 사립학교법에서 외국인학교의 회계설치 및 그 운영에 대하여 정한 규정들이 미비하거나 혼란스러워 관할청의 공무원도 외국인학교에 구 사립학교법의 회계 관련 규정이 적용되는지에 대하여 정확한 판단을 내리기 어려웠던 점, ㉯ ○○○○○학교 설립 이후 이 사건이 발생하기 이전까지 학교에 속하는 회계를 구분하지 않고 행한 위 학교의 회계보고에 대하여 관할청이 아무런 문제를 제기하지 않았던 점, ㉰ ○○○○○학교의 회계처리를 감사한 전문가인 회계사들도 이 사건 자금 대여가 법령위반에 해당된다고 지적하지는 않았던 점, ㉱ ○○○○○학교의 설립과정에서 △△△△△학교로부터의 자금 차용이 문제되어 관할청이 그 시정을 요구하였으나 피고인이 이를 시정하지 않고 설립인가신청을 하였음에도 설립인가가 있었던 점, ㉲ 피고인이 관할청의 공무원들이 참석한 ○○○○○학교 운영위원회에서 이 사건 자금 대여에 관하여 보고하였음에도 공무원들이 특별한 이의를 제기하지 않았던 점, ㉳ 피고인은 미국인으로 미국에서 교육행정에 종사하다가 말레이시아의 외국인학교, △△△△△학교의 총감으로 근무하였던 경력을 가지고 있고 한국어를 거의 하지 못하는 점 등을 종합해 보면, 피고인으로서는 대한민국에서 일반 학교들 사이의 자금 대여가 위법할 수 있지만 이 사건과 같이 외국인학교들 사이의 자금 대여는 법령에 의하여 허용된 행위로서 죄가 되지 아니한다고 그릇 인식하였던 것으로 보이고, 위에서 본 것과 같은 경력을 가진 피고인이 외부 전문가인 회계사에게 회계감사를 의뢰하고, ○○○○○학교의 자금을 △△△△△학교에 대여하는 것을 관할청의 공무원이 참석한 운영위원회에 보고하는 등의 조치를 취하였다면, 피고인으로서는 자신행위의 위법 가능성을 회피하기 위한 진지한 노력을 다하였다고 평가할 수 있다(검사는 이 사건 범행이 피고인의 단독 범행에 해당하는 것으로 보아 공소를 제기하였으나, 이 사건 당시 실무 담당자로 ○○○○○학교의 행정업무를 총괄하던 사무처장인 공소외 1, 경리담당자인 공소외 7, 공소외 8 등이 있었으므로, 위와 같은 공소제기는 사실관계에 부합하지 않고, 공소사실의 기재나 검사가 제출한 증거들만으로는 피고인과 다른 관여자들의 관계가 형법 제30조 내지 제34조 중 어디에 해당하는지 명확하지 않다).

4. Conclusion

Therefore, since the defendant's appeal against the guilty portion of the judgment below is well-grounded, the part of innocence with the grounds for such a single comprehensive crime shall be reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the judgment of the court below shall be reversed, and the appeal by the prosecutor shall not be dismissed as follows after the pleading (as long as the judgment of the court below is accepted

The summary of the facts charged in this case is the same as the above [Judgment on the grounds for appeal] 2-A. This constitutes a case where a crime is not committed on the grounds as seen in Article 325 of the Criminal Procedure Act. Thus, the defendant is acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act.

[Attachment]

Judges Song Jae-man (Presiding Judge)

(1) Article 30-2 (Establishment of School Accounting) (1) of the Elementary and Secondary Education Act shall be established in each national or public elementary school, middle school, high school, and special school. Article 30-3 (Administration of School Accounting) (1) Articles 7, 9, 11 through 16, 21, 23 through 26, 28, 29, 30-2, 30-3, 31, 31-2, 31-2, 31-2, 32 through 34, and 34-2 may not apply to schools established to educate children of foreigners residing in Korea and those prescribed by Presidential Decree from among nationals who have returned to Korea after residing for a specified period in a foreign country (hereinafter referred to as "foreign school").

2) Article 29 (Classification of Accounts) (1) of the former Private School Act shall be classified into accounts that belong to a school established and operated by the school juristic person and accounts that belong to the affairs of the juristic person. (2) Accounts belonging to a school under paragraph (1) shall be classified into accounts of school expenses and accounts of an affiliated hospital (limited to cases where an affiliated hospital exists). The accounts of school expenses shall be classified into accounts of tuition fees and accounts of non-registered fees, and matters concerning the revenue and expenditure of each account shall be determined by Presidential Decree, and matters concerning the revenue and expenditure of donations, tuition fees, and other charges that the school has received shall be managed in a separate account.

3) For the purpose of this Act, the term "private school" means a school as prescribed by subparagraph 2 of Article 2 of the Early Childhood Education Act, Article 2 of the Elementary and Secondary Education Act, and Article 2 of the Higher Education Act, which is established by a juristic person other than school juristic persons or public organizations, or other private persons. (2) The term "school juristic person" in this Act means a juristic person established by this Act for the purpose of establishing and operating only a private school.

4) The following schools shall be established to provide elementary and secondary education under Article 2 (Types of Schools) of the Elementary and Secondary Education Act. 1. Elementary schools and civic schools 2. Middle schools, civic schools 3. High schools and high technical schools 4. 5. Special schools:

5) The provisions of Articles 51 (Applicable Provisions), 28 (2), 29, 31 through 33, 43, 44, and 48 shall apply mutatis mutandis to managers of private schools: Provided, That the provisions of Articles 31 through 33 shall apply mutatis mutandis only to the part concerning private schools established and operated by them.

6) Furthermore, Article 14(4) and (5) of the Enforcement Decree of the Private School Act also provides that an accounting belonging to the affairs of a school juristic person and a budget statement of accounts belonging to the school, and a statement of accounts, shall be posted on the website. Article 14 (Reporting and Disclosure of Budget and Settlement of Accounts) (4) of the Enforcement Decree of the Private School Act provides that an educational foundation shall disclose the accounts belonging to the affairs of the school juristic person and the budget statement of accounts belonging to the school (including supplementary schedules under the Regulations on Finance and Accounting of Private School and the Special Rules on the Rules on the Rules on the Financial Accounting and Accounting of Private School) on the website of the school at least five days prior to the commencement of each fiscal year.