Defendant 1 and one other

Defendants

For identity

Law Firm Jeongn, Attorney Cha Sung-hwan

Suwon District Court Decision 2009 High Court Decision 2679 Decided February 18, 2010

All appeals by the Defendants are dismissed.

1. Summary of the judgment of the court below

A. The facts charged in this case

The Defendants are members of Non-Indicted 2 clan (hereinafter referred to as “non-Indicted 2 clan”).

From October 20, 195, the Defendants embezzled the said real estate by selling the said real estate to Nonindicted Party 1 (the Nonindicted Party of the judgment) the real estate in the mutual Buddhist real estate located in Yon-si, Seocheon-si, 200,000 square meters (hereinafter referred to as “instant real estate”) in the face of his aptitude (hereinafter referred to as address 1 omitted) that is owned by the said clan from October 20, 1995, and (hereinafter referred to as “the address 2 omitted) the address 2,337 square meters (hereinafter referred to as “the address 2 omitted). (hereinafter referred to as “the instant real estate”) in the name of the said clan in the name of title trust from the said clan, and selling it to Nonindicted Party 1 (the Nonindicted Party of the judgment) for profit by selling it for KRW 193,00,000.

B. The judgment of the court below

The lower court found the Defendants guilty of the instant facts charged by comprehensively taking account of the Defendants’ partial legal statements, Nonindicted 3’s legal statements, and police interrogation protocol against Defendant 1.

2. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of facts or misapprehension of legal principles

For the following reasons, the lower court found Defendant 1 guilty of embezzlement or erred by misapprehending the legal doctrine.

(A) Since the clans knew that the instant real estate was owned by a clan, and even before the instant case, Defendant 1 was at issue within the clans, Defendant 1 did not have the intention to dispose of the instant real estate that was loaned by Defendant 1 as collateral, and Defendant 1 did not have an intention to dispose of the instant real estate since Defendant 1 received the title trust of the instant real estate from a clan, and paid a large amount of expenses for this, Defendant 1 thought that part of the purchase price of the instant real estate was appropriated for expenses incurred by the clans and returned to the clans, and in fact, Defendant 1 did not have any intention to acquire it, since it actually returned the remainder, excluding KRW 20 million, out of the purchase price of the instant real estate.

(B) Defendant 1 has already embezzled the instant real estate by setting up a collateral on two occasions, and thereafter, purchased and sold the instant real estate constitutes an act of disposal of the goods embezzled and constitutes an act ex post facto act.

(2) Unreasonable sentencing

Even if embezzlement against Defendant 1 is acknowledged, considering the following: (a) Defendant 1 owned the instant real estate; (b) incurred various losses while holding the instant real estate; (c) returned the remainder excluding the amount appropriated for compensation for losses out of the purchase price of the instant real estate to a clan; and (d) majority of clans and directors do not want to punish Defendant 1, the sentence of the lower court (fine 5 million won) is too unreasonable.

B. Defendant 2

For the following reasons, the lower court found Defendant 2 guilty of embezzlement or erred by misapprehending the legal doctrine.

(1) Defendant 2 was accused of Defendant 1 after Defendant 1’s remarks at a clan meeting, and there was no conspiracy with Defendant 1 to engage in embezzlement. Defendant 2 did not obtain any benefit from the sale of the instant real estate.

(2) Although Defendant 2 did not have the identity of the custodian necessary for the establishment of embezzlement on duty, the lower court determined that Defendant 2 obtained the identity of the custodian.

(3) As seen earlier, insofar as Defendant 1’s act constitutes an act ex post facto punishment, Defendant 2’s act of taking part may not be punished.

3. Judgment of the court below

A. Defendant 1

(1) Judgment on misconception of facts or misapprehension of legal principles

(A) Determination as to the intent of embezzlement and the intent of unlawful acquisition

The court below acknowledged the following circumstances based on the evidence duly adopted and investigated by the court below, that is, (i) before November 30, 1995 and around April 15, 2003, Defendant 1, without obtaining permission from the clans, used the collateral security fund of 14 million won and 7.5 million won to repay its debts, and (ii) did not pay the loans thereafter; (iii) Defendant 1 stated that the investigative agency knew that it should obtain approval from the general meeting of the clans in order to dispose of the land of this case, which is the property of this case; (iv) Defendant 2 did not obtain consent from some directors of the clans; and (iii) Defendant 1 did not report it to the board of directors or the general meeting of the clans after the disposal of the land of this case; and (iv) Defendant 1 did not report it to the board of directors of the clans or the general meeting of the clans after the disposal of the land of this case; and (iii) it did not know that the directors of the clans were disposing of the land of this case.

In addition, in the crime of embezzlement, the intention of unlawful acquisition refers to the intention to dispose of the property of another person in violation of his/her duties for the purpose of pursuing his/her own interest or a third party as if it were his/her own property, and even if there was an intention to return, compensate or preserve it later, it does not interfere with recognizing the intention of unlawful acquisition (Supreme Court Decision 2004Do5167 Decided November 10, 206, etc.). Since Defendant 1 disposed of the land of this case owned by the clan he/she without the permission of a clan without the permission of the clan, it cannot be deemed that the defendant had no intention of unlawful acquisition even if he/she intended to return the remainder after appropriating part of the proceeds after appropriating them to the claim possessed by the clan.

Therefore, this part of the defendant's argument is without merit.

(B) Determination as to whether an act constitutes an act ex post facto punishment

If the act of disposal of the embezzled goods after the act of embezzlement was completed is within the scope that can be seen as being evaluated by the act of embezzlement first conducted, it does not constitute a separate crime as an act of ex post facto gift, which does not entail any infringement of new legal interests. Therefore, if the legal interests infringed by the act of disposal of the embezzled goods exceed the scope of the legal interests infringed by the preceding act of embezzlement, it shall not be deemed as an act of ex post facto gift.

However, as seen earlier, Defendant 1 created the right to collateral security of KRW 14 million and KRW 7.5 million on each of the instant land without the consent of the clans twice, and thereafter disposed of the instant land without the consent of the clans. Since the aforementioned right to collateral security was transferred only to a person holding the right to collateral security within the scope of the maximum debt amount, and the remaining right to the instant land was reserved against the clans, the legal interests infringed upon by the right to collateral security shall be limited to the portion of the right to the instant land, and the subsequent act of disposing of the instant land violated the ownership of the clans in excess of the legal interests infringed upon by the act of creating the right to collateral security, which was first committed. Accordingly, in light of the legal principles as to the act of disposing of the instant land after the fact that in the light of the aforementioned legal principles, the act of disposing of the instant land does not constitute an act ex post facto, and thus, Defendant 1’s assertion on this part is without merit.

(2) Determination on the assertion of unreasonable sentencing

Defendant 1 set up a security on the land of this case without the consent of the clan two times before the instant case and sold the land of this case at will without the consent of the clan again even after the loaned money was repaid. The selling price of the land of this case amounts to KRW 193 million, and Defendant 1 did not return KRW 20 million out of the sale price without going through the settlement procedure with the clan, and taking into account all other factors attached to the sentencing conditions, such as Defendant 1’s age, character and conduct, environment, family relationship, and circumstances after the crime, the sentence of the court below is unreasonable. Thus, Defendant 1’s assertion of unfair sentencing is without merit.

B. Defendant 2

(1) Determination as to whether embezzlement is offered or not

In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, that is, Defendant 2, on behalf of Defendant 1, talked that he would dispose of the land of this case to the clan members, and Defendant 1, although Defendant 2 failed to obtain the consent of the above disposition from the clan members, he sold the land to the clan members. Defendant 2 knew that the resolution of the clan board of directors and the approval of the general meeting is necessary for the disposal of the land of this case, which is a clan property, was necessary, it can be recognized that Defendant 2 conspired for embezzlement of Defendant 1 and the land of this case. Accordingly, this part of the allegation by Defendant 2 is without merit.

(2) Determination on the remainder of Defendant 2’s assertion

The lower court punished Defendant 2 as a simple embezzlement, not a occupational embezzlement, and even if Defendant 2 did not have a position as a custodian on duty, he may be a joint principal offender of embezzlement pursuant to Article 33 of the Criminal Act. In addition, Defendant 1’s act does not constitute an act of non-permanent punishment and thus, Defendant 2’s act involved can be punished as a crime of embezzlement. Accordingly, Defendant 2’s remaining arguments are without merit.

4. Conclusion

Since all appeals by the defendants are without merit, they are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Park Jae-sik (Presiding Judge)