[1] The method of calculating the amount of embezzlement in the case of embezzlement of a partner's business property without any settlement of profits and losses between the partners

[2] The case reversing the judgment of the court below that recognized the amount of money to be paid for the distribution of residual property through the distribution of profits and losses in the case of embezzlement of the same business property without the settlement of profits and losses among the partners for the reasons such as incomplete hearing on the amount of embezzlement

[1] If the settlement of profits and losses was not made between partners, a partner does not have the right to dispose of the business property belonging to the partner's partnership at his own discretion. Thus, if a partner has embezzled the business property at his own discretion during the custody of the business property, the partner bears the responsibility for the crime of embezzlement against the whole amount embezzled at his own discretion regardless of the ratio of shares.

[2] The case reversing the judgment of the court below which recognized the amount of money to be paid through the distribution of residual assets through the equity in the business property or the settlement of profit-and-loss distribution as embezzlement in the case of embezzlement of the business property without the settlement of profits-and-loss distribution among the partners on the grounds of insufficient deliberation as to the amount of embezzlement

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

[1] Supreme Court Decision 81Do2777 delivered on September 28, 1982 (Gong1982, 1039) Supreme Court Decision 95Do2824 delivered on March 22, 1996 (Gong1996Sang, 1460)

Defendant

Defendant

Attorney Park Chang-hoon

Changwon District Court Decision 99No201 delivered on June 20, 2000

The judgment below is reversed. The case is remanded to the Changwon District Court Panel Division.

The grounds of appeal are examined.

1. Summary of the facts charged in this case

The summary of the facts charged of this case is that the defendant invested the construction cost in relation to the above construction work after being awarded a contract with the victim for the new construction work by the Lee Young-young, and the defendant made a partnership contract with the victim that he divided the profits from the construction into half of the above construction work, and the above construction work shall be executed with the investment money received from the victim and the construction cost received from Lee Young-young, which is the owner of the building, shall be settled with the victim or used with his consent, although the construction cost received from Lee Young-young, which is the owner of the building, is settled with the victim or used with his consent during the period from February 22, 1996 to April 10, 197, received KRW 101,60,000 in aggregate from this Enforcement Rule and embezzled the profits or the amount of the investment to be paid to the victim out of the above money for the victim as a voluntary use of the construction cost in the building being executed separately by the defendant for the victim.

2. The judgment of the court below

In full view of the evidence adopted in its judgment, the court below found that the defendant and the victim engaged in the construction of the building of this case delivered 98,180,000 won to the defendant as investment money for the construction of this case, and the defendant paid 101,60,000 won as the design cost of the construction of this case. The defendant and the victim showed damages of 6,580,000 won due to the construction of this case. The amount of damages to be borne by the defendant and the victim are 3,290,000 won, and since the victim directly received 21,00,000 won from the Lee Young-young as investment money, it was reasonable to find the defendant guilty of 10,000 won for the above 73,890,000 won (the amount to be paid by the defendant as investment money of this case, 98,000 won) as investment money of this case.

3. Judgment of party members

However, if the settlement of profits and losses between partners was not made, a partner does not have the right to dispose of the partnership property belonging to the partner's own partnership property at his own discretion. Thus, if a partner has embezzled the partnership property at his own discretion during the custody of the partnership property, he bears the responsibility for the crime of embezzlement against the whole amount embezzled at his own discretion regardless of the ratio of shares (see, e.g., Supreme Court Decisions 81Do2777, Sept. 28, 1982; 95Do2824, Mar. 22, 1996).

Even according to the court below's findings, since the defendant and the victim did not settle the settlement of profit and loss distribution between the defendant and the victim, the defendant cannot be deemed to have been in the position of keeping the amount to be paid to the victim through the repayment of profit or investment funds for the victim. Rather, the defendant could be deemed to have been in the position of keeping the investment funds received from the victim and the construction payment received from the Lee Young-young as the partnership property of the defendant and the victim as the partner's partner and the victim's partner's partner's partner's partner's partner's partner's partner's partner's partner's partner's partner's partner's partner's partner's partner's partner's partner's partner'

According to the records, the defendant can look at the facts that part of the amount invested by the victim or part of the construction cost received from the Lee Young-young after completion of the instant construction for the purpose of the instant construction. As such, the court below should have determined it as the amount of embezzlement of the defendant by clarifying the credibility of the book submitted by the defendant in order to clarify the amount of embezzlement of the defendant. In cases where it is acknowledged that credibility exists after examining whether the book submitted by the court below is reliable, the entries of the book should also be specifically examined, and if necessary, investigating the details of using the same kind of business property belonging to the same kind of business with the victim by exercising the right of explanation and investigating the details of the defendant's use of the company property belonging to the same kind of business with the victim.

Nevertheless, the court below held that the defendant's embezzlement did not calculate the amount of the defendant's embezzlement by the above method, but it is not sufficient to conclude that the defendant used the above amount for the defendant's own business without using it for the company's business, and that there is no evidence to support that the defendant paid the above amount to the victim for repayment of investment or distribution of profit, and that there is no evidence to support that the defendant had been in the custody of the above amount for the victim. Thus, the above amount is merely an amount of the victim's share in the business property or that the defendant should pay for the victim's residual property through the settlement of profit-and-loss distribution. Thus, the court below's decision that the defendant did not pay the above amount to the victim without using it for the company's business. Further, it cannot be concluded that the defendant used the above amount for the defendant's own business without using it. Thus, the court below's decision that the above amount was an embezzlement amount of the defendant's embezzlement or did not affect the conclusion of the judgment by misunderstanding the facts that it did not affect the judgment.

4. 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 with the assent of all Justices who reviewed the appeal.

Justices Lee Yong-woo (Presiding Justice)