In a case where multiple assets kept by several consignment relations are embezzled by one act, the relationship between the crime of embezzlement and the crime of embezzlement (=the crime of commercial concurrence)

Articles 40 and 355(1) of the Criminal Act

Defendant

Defendant

Daejeon District Court Decision 2012No2524 Decided July 25, 2013

The judgment below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below found, based on its adopted evidence, the defendant guilty of the embezzlement of computer body, monitor, etc. held by the victim non-indicted 1 corporation (hereinafter "non-indicted 1 corporation") and the embezzlement of computer body, monitor, traffic card, horse card, etc. held by the victim non-indicted 2 corporation (hereinafter "non-indicted 2 corporation") by lease from the victim non-indicted 2 corporation (hereinafter "non-indicted 2 corporation"), and found the defendant guilty of all of the embezzlement of the main body, monitor, traffic card, and horse, etc., and aggravated concurrent crimes pursuant to Articles 38 (1) 2 and 50 of the Criminal Act by deeming each embezzlement as a substantial concurrent crime under the former part of Article 37 of the Criminal Act.

Where multiple assets kept by several consignment relations are embezzled by one act, several embezzlements are established by each consignment relationship, and among them, there is a relationship of commercial concurrence.

Examining the facts charged in the instant case in light of the aforementioned legal principles, the Defendant concluded a siren (lease) agreement with the victim Nonindicted Company 1 and kept 24 and one monitor from the computer. The Defendant concluded a lease agreement with the victim Nonindicted Company 2 and kept 13, monitoring 41, traffic card 13, and 11 of the computer main body from the victim Nonindicted Company 2. On February 22, 2011, and embezzled it by disposing of it in a lump sum to the non-indicted Nonindicted Company 1, it is reasonable to evaluate such embezzlement as one act in light of the social concept, and each embezzlement against the victims should be deemed as a commercial concurrence relationship.

Nevertheless, the lower court deemed that each of the above crimes was in a substantive concurrent relationship, and aggravated concurrent crimes. In so doing, the lower court erred by misapprehending the legal doctrine on the number of embezzlement, thereby adversely affecting the conclusion of the judgment.

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 Lee Sang-hoon (Presiding Justice)