(영문) 창원지방법원 2012.4.19.선고 2011노2535 판결

The guilty portion of the judgment of the court below is reversed. The embezzlement of value-added tax refund among the facts charged in this case is acquitted.

Reasons

1. Summary of grounds for appeal;

At the ordinary general meeting of the trade union in 2005, the amount equivalent to 10% of the value-added tax refunds has been resolved in advance by the partners who shall use it as a gift expense for the union members and pay only the remainder to the union members. Accordingly, since the Defendant partially used the value-added tax refund, it cannot be said that the Defendant had an intent of embezzlement or illegal acquisition. Nevertheless, the lower court found the Defendant guilty of this part of the facts charged, which erred by misapprehending the legal doctrine

2. Determination

A. Summary of embezzlement of value-added tax refunds among the facts charged in the instant case

From August 25, 2001 to April 30, 207, the Defendant paid 39,984,000 won in total on 12 occasions from around August 25, 2007 to around April 30, 200, and paid 00,000 won in total to the above ○○○ Bank’s head office, which received 39,984,000 won in total on 12 occasions from around 14, 2006 and received 30,000 won in total as value-added tax refund for the year 205 from the above company’s head office around January 6, 2006 and received 0,000 won in total from the above ○ Bank’s head office and received 0,000 won in total on 14, 14,50,000 won in business, or value-added tax 37,300,000 won in total and 36,008 won in total.

B. The judgment of the court below

According to the evidence duly adopted and examined by the court below, the court below determined that the defendant's act of using the above money in the above OO bank account under the name of the defendant and the 124,000 won received from the company on May 9, 2007 as the refund of value-added tax on the company's members can be recognized as a specific amount, and if the purpose of using the money is strictly restricted in an association such as a union, the use of the money for the purpose of its original purpose itself is the realization of the intention of unlawful acquisition, even if it is for the association, so it cannot be denied the intention of unlawful acquisition (see, e.g., Supreme Court Decisions 87Do1901, Oct. 10, 1989; 2006Do2238, Feb. 22, 2007). Thus, since the defendant's act of using the above money in itself constitutes embezzlement, it does not interfere with the establishment of the crime of embezzlement even if it used the above money for the union's members.

C. Judgment of the court below

1) Article 106-4 of the former Restriction of Special Taxation Act (amended by Act No. 7332 of Jan. 5, 2005) (amended by Act No. 7332 of Jan. 5, 2005) (i) The amount of the value-added tax payable for a general taxi transport business entity under the Passenger Transport Service Act shall be reduced by the taxable period ending on or before December 31, 2006.

2) Considering the nature of the refund of the value-added tax of this case, the relevant provisions on the use of the amount of the value-added tax of this case and the following circumstances shown in the records of this case, namely, ① the value-added tax refund that is paid to taxi engineers from ○○ taxi company was officially calculated by multiplying the working date of an individual taxi engineer by a certain index (Evidence No. 144, 155 pages), ② the value-added tax refund of this case was used before the company and its labor union divided into 6:4 levels; ② the portion was then purchased after the company and its labor union divided the amount into 6:4 parts (Evidence No. 154 pages of evidence record); ③ In the case of unpaid taxi commission members, the company paid the amount of the unpaid amount after deducting the amount of the value-added tax from the value-added tax refund (Evidence No. 33,48, 49, 72, 112, 145 pages), and the total amount of the value-added tax refund of this case cannot be deemed to be paid in cash by the association members.

However, according to the minutes of the 22-year general meeting of the 20-year general meeting of the 20-year general meeting of the 20-year company (the trial record No. 258), the fact that the 10% of the refund amount of value-added tax at the 2005 trade union held on August 23, 2005 had been resolved in advance by more than a majority of the union members on the use of 10% of the refund amount of value-added tax for the purpose of the gift for union members. Thus, it is difficult to view that the Defendant used 2,031,660 won of the 39,984,000 won deposited as the refund amount of value-added tax in 205 and the value-added tax refund received from the company on May 9, 2007 by other means without paying in cash to union members. There is no other evidence to acknowledge this otherwise.

3) On the other hand, Supreme Court Decision 2006Do2238 Decided February 22, 2007, etc. cited in the judgment of the court below, where the purpose of the fund is strictly limited, the use for other purposes cannot be denied as an act of use itself, and even if a resolution for settlement of accounts was made after the act of use for other than the specified purposes, it does not affect the crime of occupational embezzlement already established. Thus, it is not appropriate to use the case in this case where the members, who are the parties to the refund of value-added tax, have made a prior resolution for 10% of the refund of value-added tax to use it as gift expenses for the union members, and the purpose of the fund is limited only by cash payment.

4) Therefore, since the embezzlement of value-added tax refunds among the facts charged in the instant case constitutes a case where there is no proof of crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the

3. Conclusion

Thus, the defendant's appeal of this case is with merit, so the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

The summary of this part of the facts charged is as indicated in Article 2-1(a) of the Criminal Procedure Act, and as seen in Article 2-2(c) of the same Act, the facts charged in the instant case constitutes a case where there is no proof of crime, and thus, the acquittal shall be pronounced pursuant to the latter part of