[1] The meaning of the intent of unlawful acquisition in the crime of occupational embezzlement

[2] The case reversing the judgment of the court below which convicted the representative liquidator on the ground that the act of paying the liquidation money without the resolution of the liquidation committee is for the liquidation corporation, which is the principal, and is not contrary to the duties of the representative liquidator or there is sufficient room to deem that there was no intention

[3] Whether it can be determined whether the intent of unlawful acquisition of occupational embezzlement can be determined solely on the basis of the use of budget items (negative with qualification)

[4] The case holding that the board of directors cannot readily conclude the intent of unlawful acquisition solely on the ground that the representative of a corporation used the reserve fund as expenses for institutional operation, meeting expenses, etc. for exclusive use of the reserve fund, etc.

[1] For the crime of occupational embezzlement to be established, a person who keeps another's property as his/her business shall, with the intent of unlawful acquisition, refuse to confiscate or return the property in violation of his/her occupational duty. Here, the intent of unlawful acquisition refers to a person who actually or legally disposes of another's property in violation of his/her occupational duty for the purpose of seeking the benefit of himself/herself or a third party.

[2] The case reversing the judgment of the court below which convicted the representative liquidator on the ground that the act of having paid the liquidation money without the resolution of the liquidation committee is for the liquidation corporation, which is the principal, and is not contrary to the duties of the representative liquidator or there is sufficient room to deem that he did not have

[3] In a case where a person in a position to execute a budget diverts the budget for the purpose of covering a shortage of expenses, rather than for his own interest, the mere fact that the use of the budget itself has an unlawful purpose, or the use of the budget has been strictly restricted cannot be readily concluded to have had the intent of unlawful acquisition, solely on the basis that there was an usefulness for filling the interval, if it was permissible to allow the disbursement upon going through a certain procedure, because the use of the budget itself is the necessary expenses to be set or met, regardless of the fact that the use of the budget itself has been set or met.

[4] The case holding that the board of directors cannot readily conclude the intent of unlawful acquisition solely on the ground that the representative of a corporation used the reserve fund exclusively for an institution operating expenses, meeting expenses, etc. for the exclusive use of the reserve fund, etc.

[1] Articles 355(1) and 356 of the Criminal Act / [2] Article 356 of the Criminal Act / [3] Article 356 of the Criminal Act / [4] Article 356 of the Criminal Act

[1] Supreme Court Decisions 85Do2212 delivered on July 8, 1986 (Gong1986, 1139) 85Do2698 delivered on October 14, 1986 (Gong1986, 3058) 87Do1901 delivered on October 10, 1989 (Gong1989, 1705), 94Do291 delivered on February 10, 1995 (Gong195, 1368 delivered on February 13, 198), 97Do1962 delivered on February 13, 198 (Gong198, 198, 1909) 9Do40989 delivered on July 10, 209 (Gong198, 823, 199)

Defendant

Defendant

Attorney Lee Won-gu

Seoul District Court Decision 2001No3431 Delivered on September 27, 2001

The part of the judgment of the court of first instance regarding the crime Nos. 1 and 3 is reversed, and that part of the case is remanded to the Panel Division of the Seoul District Court. The remaining appeal is dismissed.

The grounds of appeal are examined.

1. Summary of the facts charged in this case

Since March 11, 1993, the defendant served as the chairperson of the trucking services federation of non-indicted 1 (hereinafter referred to as the "non-indicted 1 federation"), who is a corporation established for the purpose of promoting common interests of individual trucking services providers, and has been in charge of various business affairs such as the management of funds of the federation. ① The freight trucking services association of non-indicted 2 (hereinafter referred to as the "non-indicted 2 association"), which is the telegraph of the federation, has been registered as liquidation corporation on August 20, 192, and the liquidation has not been completed. Meanwhile, the defendant, who was established separately by the non-indicted 2 federation, concurrently serves as the liquidator representative of the non-indicted 2 association, from April 5, 1994 to December 195, the non-indicted 1 association's voluntary embezzlement of 23 million won from the office of the non-indicted 1 federation to the non-indicted 1 association's consumption of funds, etc. from the non-indicted 1 association's funds for business purposes.

2. The judgment of the court below

In light of the evidence duly adopted by the first instance court, the lower court affirmed the first instance court's conviction as to the facts charged on the following grounds: (a) the settlement money should be disbursed after the resolution of the liquidation committee; (b) the Defendant was resolved only at the board of directors of the non-indicted 1 federation, not the liquidation committee of the non-indicted 2 association, with respect to the amount of KRW 23 million used for the special sales fund; (c) the amount of KRW 1.5 million deposited into the passbook of the non-indicted 1 federation on December 5, 1995 was remitted to the Association for advance payment of the membership fee in January 197; and (d) on December 1, 1997, the board of directors of the non-indicted 1 federation at the meeting of the non-indicted 1 federation to divert the amount of KRW 10 million from the funds for activities of the committee on the non-indicted 1 federation to the special sales fund; and therefore, (e) the fact that the Defendant committed each crime stated in the facts charged can be sufficiently recognized.

3. Judgment of the Supreme Court

A. As to the facts charged No. 1

We cannot accept the judgment of the court below on this part in the following respects.

According to the records, individual freight trucking services were originally organized by Nonindicted 2 and established in a City/Do branch of Nonindicted 2, and joined the Korea Freight Trucking Services Association (hereinafter referred to as the “Korea Freight Trucking Services Association”). However, around 1991, Nonindicted 2 association decided to dissolve at the ordinary meeting on May 19, 192 and formed a federation consisting of Nonindicted 1 federation consisting of members of each City/Do Association on March 11, 1993; the Defendant, as the representative of Nonindicted 2 association and the president of each Association on May 7, 1993, collected approximately KRW 80 million from each City/Do branch of Nonindicted 2, and paid KRW 90,000,000 to the board of directors of Nonindicted 2, the Defendant paid KRW 90,000 to Nonindicted 3 Association at the expense of Nonindicted 5 Association, and paid KRW 90,000,000,000 for the remaining amount of liquidation membership dues to be paid by Nonindicted 2, 969, respectively.

In order to be established as a crime of occupational embezzlement, a person who keeps another's property as his/her business violates his/her occupational duty with the intent of unlawful acquisition, and thus wrongfully obtained intent refers to the intent of disposing of another's property in fact or by law, such as where the person who keeps another's property, owns another's property in violation of his/her occupational duty for the purpose of seeking the benefit of himself/herself or a third party (see, e.g., Supreme Court Decision 9Do4699, May 8, 2001). Thus, in order to constitute the crime of occupational embezzlement, the defendant's act of using the above money as special sales fund by the resolution of the board of directors of the non-indicted 1 federation should be premised on that act that the defendant transferred the above funds of the non-indicted 2 association to the non-indicted 1 federation.

However, as seen above, if the non-indicted 2’s association had a duty to support the above funds amounting to KRW 309,969,40,00 against the non-indicted 1 federation, the transfer of the above funds to the above funds to the federation by the defendant may be deemed to have been a representative of the liquidator to have repaid the liquidation association’s obligations. In addition, the non-indicted 2 association or the non-indicted 1 federation may be deemed to have been actually the same organization with its purpose or members together. If a majority of the liquidators attended the board of directors of the non-indicted 1 federation and agreed to use the funds of the defendant, if the liquidation committee was held, the resolution for the transfer of the above funds to the non-indicted 1 federation would have been reached. Considering these facts, even if the defendant did not undergo the resolution of the liquidation committee, the act of transferring the above funds owned by the non-indicted 2 association to the non-indicted 1 federation is for the principal, and it does not violate the duty of the liquidation committee, or at least at the time there is sufficient room to deem that the defendant has made no intent to acquire unlawful profits in the manner.

Nevertheless, the court below held that the defendant's act constitutes embezzlement solely on the ground that the defendant paid liquidation money without the resolution of the Liquidation Committee. Thus, the court below did not err in the misapprehension of legal principles as to embezzlement or intent of unlawful acquisition, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

B. As to the indictment No. 2

The court below recognized that the amount of 1.5 million won deposited in the passbook of the Association on December 5, 1996 by the court of first instance based on the evidence duly examined and adopted by the court of first instance was the money remitted by the Association to pay the federation's expenses out of the funds of the Association on January 1997. In comparison with the records, the above fact-finding by the court below is just, and there is no violation of the rules of evidence as alleged in the grounds of appeal. The ground of appeal on this part is without merit.

C. As to the facts charged No. 3

According to the records, the amount of KRW 37,484,00 was set at KRW 377,00 out of the reserve funds in the budget of the 1997 federation and the amount of KRW 30,000 among them was decided to be used as funds for the activities of the Emergency Countermeasure Committee. However, among the above reserve funds, the amount of KRW 4,147,00,00 with the special fund for the operation of the organization, KRW 1,809,370 with the funds for the operation of the organization, KRW 4,451,250 at the meeting’s expense, KRW 4,451,250, and KRW 3,000 with the expense for the production of the Emergency Stick was used exclusively. Therefore, the specific content that the Defendant embezzled KRW 10,000 out of the funds for the above activities in this case is not the funds for the operation of the Association but the funds for the exclusive purpose of the non-indicted 1.

However, in a case where a person in a position to execute a budget diverts the budget for the purpose of correcting the shortage of expenses, rather than for his own interest, the mere fact that the use of the budget itself has an unlawful purpose, or the use of the budget has been strictly restricted, if the expenditure can be permitted upon the request of a certain procedure due to the fact that the use of the budget itself is the necessary expenses to be determined or carried out, it cannot be readily concluded that the use of the budget itself has an intent to obtain unlawful acquisition (see, e.g., Supreme Court Decision 94Do2911, Feb. 10, 195).

In light of the records, the defendant's special funds balance as of the end of November 197 was 3,00 won, and the balance was 21,630 won, and the meeting expenses was 1,176,250 won or more. On December 1, 1997, the board of directors of the non-indicted 1 Federation of the non-indicted 1 Federation of the non-indicted 1,50 million won was 1,000 won or more from the funds for the non-indicted 1 Association of the non-indicted 1, 1997, and it was understood that the non-indicted 1 and non-indicted 9 were not able to use the funds as the special funds for the non-indicted 1,00 won at the meeting's meeting's meeting's meeting's meeting's meeting's expense, and the defendant was not able to use the funds for the above non-indicted 1,000 won or less from the funds for the non-indicted 2's meeting's meeting's expense.

On the contrary, the judgment of the court below convicting the above charged facts is erroneous in the misapprehension of legal principles as to the intention of unlawful acquisition in the crime of embezzlement, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The grounds of appeal assigning this error

4. Therefore, the part of the judgment of the court of first instance regarding the crime No. 1 and 3 of the judgment of the court of first instance is reversed, and that part of the case is remanded to the court below. The appeal against the crime No. 2 of the judgment is dismissed. It is so decided as per Disposition

Justices Park Jae- Jae (Presiding Justice)