[1] The person who bears the burden of proving the intent of the custodian's unlawful acquisition (=the prosecutor) and the method of proving the abstract use of the money in custody

[2] The elements to recognize that officers and employees of a corporation or organization embezzled the so-called so-called "market contribution" or "business promotion expenses" with the intent of unlawful acquisition

[3] The case holding that the judgment of the court below which inferred the intention of unlawful acquisition on the ground that the chief director of the bus transport business association did not explain the specific place of use for the market use expenses or the union activity expenses paid in cash or did not submit evidentiary materials is erroneous in the misapprehension of legal principles

[1] The burden of proof on the intent of unlawful acquisition is limited to the prosecutor. Thus, even if the specific purpose of use of money is specified abstractly, the custodian has a broad discretion to use it, and the custodian has the right to use it after the disbursement is made, and if it is of the nature for which a subsequent report or the submission of evidentiary materials is not required, the custodian shall not without permission be deemed to have expressed his intent of unlawful acquisition, on the ground that he used the money, fails to properly explain the location or location of the use, or fails to submit evidentiary materials, and the said money has been disbursed for personal interests regardless of its original purpose or has been disbursed for excessive use beyond a reasonable scope. It is natural that the prosecutor bears the burden of proof that the prosecutor proves the situation that can recognize the intention of unlawful acquisition, such as where the money has been disbursed for personal interests or has been disbursed beyond a reasonable scope.

[2] In a case where the so-called market official expenses or business promotion expenses paid by a corporation or organization under the articles of incorporation or other regulations to compensate for expenses incurred in performing duties for the executives and employees, which are nature of compensation for actual expenses, and the articles of incorporation or its payment standards do not have specific restrictions on their use or purpose, and where evidence such as receipts on its use does not require the submission of documents on its use, the judgment is given to the executives and employees, and such judgment should be respected first. Accordingly, in order to recognize the market official expenses, etc. as embezzlement with the intent of unlawful acquisition, it should be proved that the market official expenses, etc. were disbursed for personal benefits without relation to their duties or excessive disbursement beyond a reasonable scope even if they were related to their duties, and the officer and employees using the market official expenses, etc. failed to properly explain their whereabouts or use places, or failed to submit evidentiary documents on their use after the fact that they failed to do so without permission, and thus, they should not be embezzled with the intent of unlawful acquisition.

[3] The case holding that the court below erred in the misapprehension of legal principles, which held that the defendant embezzled some of the funds of the above union to the extent that the chief director of the bus transport business association did not explain the specific place of use for the market price or the union activity expenses paid in cash or did not submit evidentiary materials ex post facto, and the possibility that some of the funds of the above union was disbursed in accordance with its use and purpose cannot be ruled out

[1] Articles 355(1) and 356 of the Criminal Act, Articles 307 and 308 of the Criminal Procedure Act / [2] Articles 355(1) and 356 of the Criminal Act, Articles 307 and 308 of the Criminal Procedure Act / [3] Articles 355(1) and 356 of the Criminal Act, Articles 307 and 308 of the Criminal Procedure Act

[1] [2] Supreme Court Decision 2008Do6755 Decided June 24, 2010, Supreme Court Decision 2008Do6756 Decided June 24, 2010

Defendant

Defendant

Law Firm Chungcheong, Attorneys Song Hong-chul et al.

Seoul Central District Court Decision 2007No432 Decided July 4, 2007

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

The grounds of appeal are examined.

1. In the crime of occupational embezzlement, the prosecutor must prove that there is an act of embezzlement as an act of realizing the intent of unlawful acquisition. The evidence must be proved by strict evidence with probative value that leads to a judge to a reasonable doubt. If there is no such evidence, even if there is doubt of guilt against the defendant (see Supreme Court Decision 94Do998, Sept. 9, 1994). Here, the intent of unlawful acquisition refers to the intention of disposal of another person's property, which is in violation of his/her duties for the purpose of pursuing his/her own or a third party's interest, as in fact or in law, is the owner of another person's property, which is kept in custody for the purpose of realizing the intent of unlawful acquisition. If the defendant denies it, the facts constituting such subjective element are attributable to the intention of internal deliberation and the fact that the defendant was in custody, due to indirect facts or circumstantial evidence relevant to the nature of things, and it is inevitable to prove that the defendant's personal property or personal property was not sufficiently used for the above 90th of money or other evidence.

However, as seen above, since the burden of proof on the intent of unlawful acquisition is only imposed on the prosecutor, even if the specific purpose of use, place, time of use, etc. is specified abstractly, the custodian is granted the right to use the money with a wide range of discretion in relation to the specific purpose of use, place, time of use, etc., and if it is of the nature for which post-report or submission of evidentiary materials is not required after the disbursement, the custodian is not obliged to use the money, and explain the location or place of use, or to present evidentiary materials, without permission, on the ground that the custodian has failed to without permission, and regardless of the original purpose of use, the prosecutor bears the burden of proof that the money has been disbursed for personal interests or has spent it excessively beyond a reasonable scope.

On the other hand, if the so-called market official expenses or business promotion expenses paid by a corporation or organization under the articles of incorporation or other regulations to compensate for the expenses incurred in performing the duties, and the articles of incorporation or its payment standards comprehensively provide for the expenses to be incurred in performing the duties, and do not impose any specific restrictions on their purposes or purposes, and does not require evidence such as receipts on its use, the judgment on the place or scale of use and the relation to the duties shall be given to the officers and employees, and such judgment shall be respected first. Accordingly, in order to recognize the market official expenses, etc. as embezzlement with the intent of unlawful acquisition, it shall be proved that the market official expenses, etc. were disbursed for personal benefits without relation to the duties or excessive disbursement beyond a reasonable scope even if they were related to the duties, and it shall not be presumed that the officers and employees who used the market official expenses, etc. failed to properly explain their whereabouts or use places, or failed to submit evidence on their use ex post facto, and thus, embezzled them with the intent of unlawful acquisition.

2. We examine the instant case in accordance with these legal principles.

A. The part of the judgment below's attached [Separate List] Nos. 1 through 4, 6 through 10, 12, 21, 22, 23, 25, 29 through 36, 39, 41 through 44, 46, 50, 63, 66, 73, 79, 83, 84, 90, 91, 93, 95, 98 through 103 for each of the marketing expenses or the cooperative activity expenses (hereinafter "the marketing expenses of this case").

Examining the reasoning of the judgment below and the circumstances acknowledged by the evidence adopted and examined by the court below, the sales fund of this case was paid in cash to the defendant, who is the president of the Village Bus Transport Business Association in Seoul Special Metropolitan City (hereinafter "the cooperative of this case") from January 2003 to July 2005 in order to perform his duties, and the articles of association only provide that the defendant can be paid for the performance of his duties and did not impose restrictions on the target, purpose, and method of its use. In addition, the association of this case did not request the president, etc. to submit evidence, such as a receipt of the sales fund of this case, or to clarify the location of its use after using the sales fund of this case. Thus, even if the defendant, who is the chief director of the association of this case, used the sales fund of this case in his own judgment for the performance of his duties, he did not use the funds in excess of the reasonable scope of his personal intent to use the funds or to use the funds in this case without any reasonable explanation or explanation of the defendant's intent to use it.

On the contrary, the judgment of the court below which inferred the defendant's intent of unlawful acquisition of the trademark of this case on the ground that the defendant did not explain the specific place of use of the trademark of this case and there is no evidence to acknowledge that the defendant used the trademark of this case for the partnership, was erroneous in the misunderstanding of legal principles as to the intention of unlawful acquisition and the burden of proof of embezzlement in the crime of occupational embezzlement, which affected the conclusion of the judgment.

B. The part of each of the money listed in [Attachment 16, 38, 48, 75] Nos. 16, 38, 75 of the judgment below

Examining the reasoning of the judgment below and the circumstances acknowledged by the evidence adopted and examined by the court below, each of the above amounts is strictly limited to the purpose and purpose of the association of this case with the funds of this case. However, in light of the defendant's assertion and evidence evidence, it cannot be ruled out that each of the above amounts has been disbursed due to the construction cost (No. 16), or the Internet-related construction cost of the association of this case (No. 38) or due to the work cost of the association of this case related to the workshop of this case (No. 48), or the work cost of the union of this case (No. 75) or the work cost of the union of this case (no. 75). If there are such circumstances, each of the above amounts is hard to recognize the existence of the intention of illegal acquisition, it shall be deemed that the defendant explained the location or location, and there is any material to deem that it is consistent with this. Thus, it shall not be said that the defendant's intent of unlawful acquisition of each of the above amounts.

On the contrary, the judgment of the court below that recognized that the defendant embezzled each of the above money with the intent of unlawful acquisition is erroneous in the misunderstanding of legal principles as to the intent of unlawful acquisition and the method of recognizing the act of embezzlement in the crime of occupational embezzlement, which affected

C. Of the [Attachment List of Crimes] of the lower judgment, the remaining part of the money excluding the money in 16,38,48,75 of the sales fund of this case and the sequence 16,38,48,75

Examining the reasoning of the judgment below in light of the evidence duly adopted and investigated by the court below, this part of the money is strictly limited to the purpose and purpose of the association of this case. Thus, the association of this case must prove the defendant's embezzlement of this part of the money due to the status of the defendant, the purport of the entrustment and custody of the defendant, the method of management, the amount of money, the period of custody and management of the defendant's money and the circumstances before and after the death, etc., and further, there is no evidence to prove that the defendant used this part of the money for the association, and there is no evidence to prove that the defendant used this part of the money for the association. Accordingly, the defendant's intent of unlawful acquisition and embezzlement of this part of the money is recognized.

Therefore, it is just that the court below recognized that the defendant embezzled this part of the money with the intent of unlawful acquisition in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the intent of unlawful acquisition of occupational embezzlement, the method of recognizing the act of embezzlement, and the burden of proof.

3. 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 Jeon Soo-ahn (Presiding Justice)