[1] The degree of proof of the act of embezzlement as the act of realizing the intent of an unlawful acquisition

[2] Subjective requirements for the crime of occupational breach of trust and the method of proof

[3] The probative value of the facts admitted in the judgment of the relevant civil case in a criminal trial

[1] Article 35 (1) of the Criminal Code, Articles 307 and 308 of the Criminal Procedure Act / [2] Articles 355 (2) and 356 of the Criminal Code, Article 308 of the Criminal Procedure Act / [3] Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 94Do998 delivered on September 9, 1994 (Gong1994Ha, 2679), Supreme Court Decision 2000Do637 delivered on September 4, 2002 (Gong2002Ha, 2374), Supreme Court Decision 2009Do495 Delivered on April 23, 2009 / [2] Supreme Court Decision 99Do334 Delivered on April 11, 200 (Gong200Sang, 1217), Supreme Court Decision 2003Do788 delivered on March 26, 2004 (Gong204Sang, 753), Supreme Court Decision 2004Do810 delivered on July 9, 2004 (Gong2004Do810939 delivered on April 23, 209), Supreme Court Decision 2009Do3899 Delivered on March 26, 2004)

Defendant

Prosecutor

Attorney Han-hwan et al.

Seoul High Court Decision 2007No690 decided August 28, 2008

The appeal is dismissed.

1. As to the facts charged (including the preliminary facts charged) in Articles 1 through 12 of the facts charged in the judgment of the court below (Embezzlement, occupational embezzlement, occupational breach of trust)

Even if there is an act of embezzlement as an act of realizing the intent of unlawful acquisition in the crime of embezzlement, the prosecutor must prove the existence of such act. The evidence must be based on strict evidence with probative value sufficient to make a judge a reasonable doubt. If there is no such evidence, even if there is doubt of guilt against the defendant, it is inevitable to determine the defendant's interest. If the defendant does not properly explain his/her whereabouts or use of money in his/her entrusted custody even though there is no money in his/her entrusted custody, it can be presumed that the defendant voluntarily consumed and embezzled it. However, if the defendant does not explain his/her whereabouts or use of money, it is difficult to recognize the existence of the intention of unlawful acquisition, and if there are materials corresponding thereto, it cannot be deemed that the defendant withdrawn the entrusted money for another purpose and embezzled it as an unlawful acquisition, unless it is acknowledged that the defendant has separately consumed the money for another purpose, and then he/she has deposited or returned it separately (see, e.g., Supreme Court Decision 200Do940, Apr. 29, 1990).

In addition, the intention of the crime of occupational breach of trust is established in combination with the perception that the person handling another's business affairs causes property damage to the principal and that the intention of the person himself/herself or a third party is in violation of his/her duty. The subjective element of the crime of occupational breach of trust (such as intention, motive, etc.) is the subjective element of the crime of occupational breach of trust in a case where the defendant denies the criminal intent by asserting that he/she committed the act at issue on his/her own interest, it is inevitable to prove by the method of proving indirect facts that have considerable relevance with the intention due to the nature of the object, and what constitutes considerable relevance indirect facts should be determined by the method of reasonably determining the link of facts based on the close observation or analysis capacity based on normal empirical rule (see Supreme Court Decision 9Do334, Apr. 11, 200).

According to the reasoning of the judgment below, the court below acquitted each of the charges on this part on the ground that it is difficult to recognize the criminal intent of unlawful acquisition and the criminal intent of breach of trust against the defendant in light of the circumstances stated in its reasoning, or there is a high possibility that the victim gave consent or understanding to Nonindicted 1, etc., or it is difficult to recognize that the place of use is the repayment of the defendant's personal obligation, and rather, there is materials corresponding to the place of use claimed by the defendant.

In light of the above legal principles and records, the judgment of the court below is just, and there is no violation of the rules of evidence or misapprehension of legal principles as otherwise alleged in the ground of appeal.

2. As to the charges No. 13 of the facts charged in the judgment below

In a criminal trial, even though the facts recognized in the judgment of a civil case related to the facts charged constitute a valuable evidence for recognition, it is not always bound by the final and conclusive facts of the civil judgment, and the criminal court can recognize facts different from the facts established in the civil judgment by evidence (see Supreme Court Decision 95Do192 delivered on August 23, 196).

According to the records, in a lawsuit claiming construction price against Nonindicted Co. 2 (representative director 1), it can be found that the judgment was rendered and confirmed that there was no evidence to support the fact that Nonindicted Co. 4, the Defendant’s wife, lent KRW 400 million to Nonindicted Co. 2. However, based on the adopted evidence, the lower court made a monetary loan contract with KRW 400 million in total under the above Nonindicted Co. 4, and Nonindicted Co. 1, his employee, asserted that the Defendant and his employee forged the above monetary loan contract, and filed a complaint against Nonindicted Co. 5. The prosecutor made a disposition against the Defendant for lack of evidence as to the above complaint. In this case’s business, as indicated in the tax settlement statement for the year 2002, it is highly probable that the Defendant’s investment funds were in a position of being repaid KRW 600 million with 50% interest of KRW 500 million in the above amount, and contrary to this, it is difficult to find the Defendant’s statement contrary to the above evidence that the Defendant and the Defendant’s investment funds were in this case.

In light of the above legal principles and records, the judgment of the court below is just, and there is no violation of the rules of evidence or misapprehension of legal principles as otherwise alleged in the ground of appeal.

3. As to the charges No. 14 (Fraud) in the judgment of the court below

The ground of appeal pointing this out is eventually erroneous for the selection of evidence or fact-finding which belongs to the exclusive jurisdiction of the court below, which is a fact-finding court. The court below did not err in violating the rules of evidence as otherwise alleged in the ground of appeal. Thus, the above ground of appeal cannot be justified or acceptable.

4. Conclusion

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

Justices Kim Young-ran (Presiding Justice)