[1] Whether embezzlement is established in a case where a private school’s accounts for school expenses are used for another purpose (affirmative)

[2] The case affirming the establishment of the crime of occupational embezzlement in case where a school foundation, which was subject to the Minister of Education and Human Resources Development’s approval on transfer of school campaigns, transferred the corporation’s contributions to the corporation account by pretending the payment of allowances and donation collection

[1] Articles 35(1) and 356 of the Criminal Act; Article 29 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005); Article 13(1) and (2) of the Enforcement Decree of the Private School Act / [2] Articles 355(1) and 356 of the Criminal Act; Article 29 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005); Article 13(1) and (2) of the Enforcement Decree of the Private School Act

[1] Supreme Court Decision 2005Do3929 Decided September 28, 2005 (Gong2005Ha, 1731), Supreme Court Decision 2007Do9755 Decided February 29, 2008 (Gong2008Sang, 491), Supreme Court Decision 2006Do3742 Decided May 29, 2008, Supreme Court Decision 2008Do11967 Decided December 24, 2009

Defendant

Defendant

Attorney Cho Chang-soo et al.

Changwon District Court Decision 2008No2103 decided June 25, 2009

The appeal is dismissed.

We examine the grounds of appeal.

In full view of the provisions of Article 29 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005), Article 13 of the Enforcement Decree of the Private School Act, and Articles 25 and 36 of the Financial and Accounting Rules of Private School, the accounts of school juristic persons are divided into school accounts and corporate accounts, and in particular, income from school accounts is limited to the school accounts, such as transfer or lending of income from school expenses to other accounts as a result of entrance fees, tuition fees, etc. collected from a school from a student, and thus, it cannot be disbursed from school expenses accounts for purposes other than the limited purpose. If the school juristic person’s corporate accounts are entrusted with a limited amount of money and used for purposes other than the limited purpose, the use of money is derived from the personal purpose, and thus, it is established that the intent of unlawful acquisition is realized as the act of use, even if the entrusted principal is above, and if the income from school expenses belongs to 200 square meters or more, it cannot be exempted from the unlawful purpose of education.

Article 13 (2) 2 of the Enforcement Decree of the Private School Act provides "expenses for facilities and equipment directly necessary for school education" as items for school expense accounts. Thus, even if the defendant finally intended to use the money for the expenses to move the school campus, if a school juristic person was to bear the corporate expenses of KRW 2.2 billion in the course of obtaining approval of transfer from the Minister of Education and Human Resources Development in the course of obtaining approval of the plan for relocation of the school campus, the above corporate expenses shall not be disbursed from the corporate accounts of the school juristic person, and it shall not be disbursed from the school juristic person's corporate expenses on account of Article 13 (2) 2 of the Enforcement Decree of the Private School Act. Thus, if the school juristic person, which is the main body of the corporate expenses to be paid as part of the expenses, actually bears the expenses from the corporate accounts, as if the order for preservation measures from the corporate accounts to the corporate expenses is actually implemented, it shall be deemed that the funds already used for the purpose other than the funds already used for the school education.

Based on the facts and circumstances stated in its reasoning, the lower court found the Defendant guilty of the charge of occupational embezzlement of this case, on the ground that the Defendant embezzled the accounts of school expenses, the use of which is strictly limited, in order to raise corporate contributions. In light of the above legal principles and records, the lower court’s findings of fact and determination to the same effect are all justifiable.

The court below did not err in the misapprehension of legal principles as to embezzlement and intent of unlawful acquisition as otherwise alleged in the ground of appeal.

The Supreme Court precedents cited in the grounds of appeal are different from this case and are not appropriate to invoke this case.

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

Justices Yang Chang-soo (Presiding Justice)