[1] The meaning of embezzlement act in embezzlement

[2] The meaning of stolen

[3] The degree of awareness and criteria for recognition of stolen property in the crime of acquiring stolen property

[4] The case holding that in case where Gap paid Eul with the funds of the company of this case to Eul, such funds constitute stolens obtained by embezzlement rather than merely those provided for embezzlement

[1] The crime of embezzlement is established when a person who keeps another's property embezzleds such property. The act of embezzlement as a constituent element of the crime of embezzlement refers to all the acts of realizing the intent of unlawful acquisition, and the crime of embezzlement is established when there is an objective act that can be externally known by the intent of unlawful acquisition.

[2] Stolen property means a thing obtained by a criminal act, which is a property crime, and shall be a thing acquired by a crime of acquisition, such as theft, robbery, fraud, extortion, embezzlement, etc.

[3] In the crime of acquiring stolens, it is not required that the perception of stolens is a conclusive perception, and it is sufficient to have dolusent perceptions to the extent of doubt that the stolens are ambiguous, and whether or not the stolens have been aware of the fact that it is a stolen shall be recognized by taking into account the identity of the stolens possessor, the nature of the stolens, the transaction cost, and other circumstances.

[4] The case holding that in case where Gap paid Eul with the funds of this company Gap to the proceeds of stock sale, the funds shall not be merely those provided for embezzlement but constitute stolens through embezzlement, and furthermore, even if Gap's act of giving the funds to this company is an embezzlement, it shall be deemed that Gap's occupational embezzlement at the same time constitutes stolens.

[1] Article 355 (1) of the Criminal Code / [2] Article 362 of the Criminal Code / [3] Article 362 of the Criminal Code / [4] Article 362 of the Criminal Code

[1] Supreme Court Decision 97Do3282 delivered on February 24, 1998 (Gong1993Sang, 1185), Supreme Court Decision 92Do299 delivered on March 9, 1993 (Gong1998Sang, 948) / [2] Supreme Court Decision 74Do1804 delivered on September 23, 1975 (Gong1975, 8691) / [3] Supreme Court Decision 94Do1968 delivered on January 20, 195 (Gong195Sang, 943 delivered on September 5, 2000)

Defendant

Prosecutor

Law Firm Sejong, Attorneys Choi Young-soo et al., Counsel for defendant-appellant

Daegu High Court Decision 2004No207 delivered on August 26, 2004

The judgment below is reversed, and the case is remanded to the Daegu High Court.

We examine the grounds of appeal.

We examine the grounds of appeal.

1. As to the primary facts charged in this case

According to the reasoning of the judgment below, the court below maintained the first instance court which acquitted the defendant on the ground that the evidence submitted by the prosecutor alone is insufficient to recognize that "the defendant embezzled the above company's funds in collusion with the non-indicted 1 and the non-indicted 2 or that the non-indicted 1 and the non-indicted 2 conspired with the non-indicted 2 on May 2001, he arbitrarily delivered KRW 50 million to the defendant and embezzled it on four occasions during the period from that time to December 2002, as well as that the non-indicted 1 and the non-indicted 2 embezzled a total of KRW 500 million to the non-indicted 2", which is the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), which is the primary charge of this case, and there is no other evidence to acknowledge this otherwise. In light of the records, the recognition and judgment of the court below is justified, and there is no error of law such as misconception of facts as alleged in the grounds for appeal.

2. As to the ancillary charges of this case

A. According to the reasoning of the judgment below, the court below found the defendant not guilty on the ground that "the defendant received 50 million won from the police officer on May 2001, from the non-indicted 1 and the non-indicted 2, and the non-indicted 2, while being aware that it was a stolen property, and acquired stolen goods by receiving 500 million won in total from the proceeds of the sale of the stock, four times from that time to December 2002." As for the acquisition of stolen goods, which are the ancillary charges of this case, "the non-indicted 1 and the non-indicted 2 received 50 million won in total from the non-indicted 1 and the non-indicted 2's embezzlement of the goods provided for the occupational embezzlement of the non-indicted 1 and the non-indicted 2, and it cannot be viewed as stolen goods (see Supreme Court Decision 82Do2119, Nov. 8, 1983).

B. However, it is difficult to accept such recognition and determination by the lower court.

The crime of embezzlement is established when a person who keeps another's property embezzled the property. The embezzlement as a constituent element of the crime of embezzlement refers to any act realizing the intention of unlawful acquisition, and the crime of embezzlement is established when there is an objective act that can be perceived from the outside (see Supreme Court Decisions 92Do299, Mar. 9, 1993; 97Do3282, Feb. 24, 1998; 97Do3282, Feb. 24, 1998, etc.). Meanwhile, stolen property refers to an object acquired through a criminal act that is a property crime, and it shall be an object acquired through such crime as theft, robbery, fraud, threat, embezzlement, etc. (see Supreme Court Decision 74Do1804, Sept. 23, 1975).

According to the records, in instituting a charge of the acquisition of stolen property as the ancillary charge of this case against the defendant, it is clear that the prosecutor received the money obtained from the embezzlement and acquired stolen property from the defendant on the premise that there was an objective act that could have been perceived from the outside, that is, the intention of illegal acquisition, and thus, the defendant was indicted for the acquisition of stolen property on the premise that there had already been an objective act that could be perceived from the outside. Thus, in itself, in the facts charged, the money is not merely a thing provided for embezzlement but a thing obtained through the embezzlement. Furthermore, even if the act of delivering money to the defendant by Nonindicted 1 and 2 is an embezzlement, it is not appropriate to invoke the case as to the crime of embezzlement, which is not the crime of acquisition, and it is not appropriate to use it differently from the case of this case.

Nevertheless, the court below decided that the amount delivered by Nonindicted 1 and Nonindicted 2 to the defendant is not stolen, and sentenced not guilty of the acquisition of stolen property, which is the ancillary charge of this case. Thus, there is no error of law by misunderstanding the legal principles as to stolen property, which affected the conclusion of the judgment. Accordingly, the ground of appeal pointing this out is with merit.

C. In the crime of acquiring stolens, the perception of stolens is not required to be a conclusive perception, and it is sufficient to be dolusent perceptions to the extent of doubt that the stolens are ambiguous, and whether or not the stolens were aware of the fact that it is the stolens, shall be recognized by taking into account the identity of the stolens possessor, the nature of the stolens, the transaction cost, and other circumstances (see, e.g., Supreme Court Decisions 94Do1968, Jan. 20, 195; 99Do3590, Sept. 5, 200).

According to the records, Defendant 1 and Nonindicted 3 obtained money from around January 200 to the same business type, and managed the above company by jointly taking over the Defendant and Nonindicted 1 as its representative director. The Defendant knew that the funds of the above company were missing or left for office on December 200, and Nonindicted 1 was transferred from Nonindicted 3 to the above company and actually managed the above company by taking over shares from Nonindicted 2, 400 million won, and the Defendant did not have any dispute over the acquisition of the above company’s capital from March 14, 200 to KRW 100,000,000 for the above company’s temporary payment or acquisition of the above company’s capital. The Defendant, who received money from Nonindicted 1 to KRW 500,000,000,000 for the above company’s KRW 100,000,000,000,000,000,000 won, which was 10,000 won.

Nevertheless, the court below judged that it is difficult to see that the defendant acquired the stolen property with the knowledge of the circumstance and there is no other evidence to acknowledge it. Thus, there is no error of law in finding a fact in violation of the rules of evidence, and therefore, the ground of appeal pointing this out is justified.

3. Conclusion

Therefore, among the judgment below, the part concerning the conjunctive facts charged cannot be reversed, and the part concerning the primary facts charged in relation to the same body can be reversed. Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)