[1] In a case where the Defendant was indicted for violating the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) on the ground that the Defendant conspired with Gap private school managers Eul and used the tuition fees, etc. paid by students, etc. for other accounts than school expenses, the case affirming the judgment below holding that the Defendant’s arbitrary use of the tuition fees, etc. in collusion with Eul does not constitute embezzlement in addition to the crime of violation of the Private School Act even if the Defendant conspired with Eul and used them at will, barring special circumstances, since the tuition fees raised as tuition fees, etc. as a school

[2] Standard for determining whether the accounts for school expenses constitute the expenditure under the Private School Act and subordinate statutes, and whether embezzlement is established in itself in a case where the accounts for school expenses are used for another purpose (affirmative)

[3] In a case where the Defendant, the chief executive officer of a school foundation, was indicted for occupational embezzlement by using part of the building under his/her control for a residential purpose without any ground for the provision of the law and allowing the construction cost to be paid as revenue belonging to the university tuition accounts, the case affirming the judgment below convicting him/her on the ground that the above expenses are not included in the expenditure of school tuition accounts permissible

[1] In a case where the Defendant was indicted for violation (Embezzlement) of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 11304, Feb. 10, 2012) (Embezzlement) on the ground that the Defendant conspired with Party A’s private school manager and arbitrarily used tuition fees and other money paid by Party A’s students or parents to other accounts, the case affirming the judgment below holding that the Defendant’s crime of embezzlement is not established in addition to the crime of violation of the Private School Act even if the Defendant conspired with Party B and used them at will, on the ground that Party A’s school established and operated by Party B, etc., a private person, constitutes Party B, etc., and barring special circumstances.

[2] Article 13(2) of the Enforcement Decree of the Private School Act, which provides for matters concerning the expenditure of school expenses by delegation of Article 29(2) of the Private School Act, provides that the expenditure of school expenses shall be the expenses prescribed in each subparagraph. Since Article 13(2) of the Enforcement Decree of the Private School Act provides for personnel expenses and goods expenses necessary for school operation (No. 1), expenses for facilities and equipment directly required for school education (No. 2), and other expenses directly required for school education (No. 5), the determination of whether the expenditure from the revenue from school expenses constitutes the expenditure of school expenses which is permitted by the school expenses accounts should be made based on whether it is directly required for school education when comprehensively examining all the circumstances related to the expenditure of the school expenses. Meanwhile, the use of funds for purposes other than the limited purpose upon entrustment of a limited fund to others is derived from the personal purpose of use, as a result, from the realization of the intention of unlawful acquisition as an act of use even if the entrusted principal is above, the crime of embezzlement is established.

[3] In a case where the defendant, the chief executive officer of a school foundation, used part of the building of a university under his/her control for a residential purpose without any ground for the articles of association or any other provision, and paid construction cost to him/her as revenue belonging to the university school expenses accounts, and was prosecuted for occupational embezzlement, the case affirming the judgment below convicting him/her on the ground that the above expenses are not included in the expenditure of school expenses accounts permitted under the Private School Act because it used school expenses accounting funds for other purposes than directly necessary for school education

[1] Articles 30, 355(1), and 356 of the Criminal Act; Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Feb. 10, 2012); Articles 29(6), 51, and 73-2 of the Private School Act / [2] Articles 355(1) and 356 of the Criminal Act; Article 29(2) of the former Private School Act (Amended by Act No. 10906, Jul. 25, 201); Article 13(2)1, 2, and 56 of the Enforcement Decree of the Private School Act / [3] Articles 355(1) and 356 of the Criminal Act; Article 29(2)29(2) of the former Enforcement Decree of the Private School Act (Amended by Act No. 10930, Jul. 25, 2011)

[2] Supreme Court Decision 2007Do9755 Decided February 29, 2008 (Gong2008Sang, 491) Supreme Court Decision 2006Do3742 Decided May 29, 2008, Supreme Court Decision 2008Do1967 Decided December 24, 2009, Supreme Court Decision 2009Do6482 Decided March 11, 2010

Defendant

Defendant and Prosecutor

Law Firm LLC, Attorneys Lee Byung-soo et al., Counsel for the defendant-appellant

Seoul High Court Decision 2011No862 decided September 9, 2011

All appeals are dismissed.

The grounds of appeal by prosecutors and defendants shall be examined together by relevant facts charged.

1. As to the embezzlement related to construction cost of ○ University, a joint principal offender with Nonindicted 1 and 2, and the violation of the Private School Act

The court below found the defendant, the president of the non-indicted 3 school (hereinafter referred to as "the non-indicted 3 school") as co-defendant 1 and the secretary general of the non-indicted 2, who is the defendant's wife, in collusion with the non-indicted 1 and the non-indicted 2, who entered into a contract with the public corporation in connection with various construction works of the ○○ University, and returned the amount paid in installments. In addition, the court below found the defendant guilty of the non-indicted 1 and the non-indicted 2's statement that the defendant was ordered to raise and manage the funds for the purpose of private use, such as the defendant's political funds or living expenses, and embezzled the funds for the ○ University and transferred the funds belonging to the accounts of the ○ University to another account. In light of the facts charged, it is hard to find the defendant guilty on the ground that the non-indicted 1 and the non-indicted 2's statement was false in the process of raising the funds, the issue related to the estimate, the timing and significance of the first non-financial funds creation, and the relation with the defendant.

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just and acceptable, and contrary to the prosecutor's grounds of appeal, there is no violation of law of free evaluation of evidence against logical and empirical rules

2. As to embezzlement related to support for foreigners' schools located in △△△△△△△ (hereinafter "foreigner's schools") at ○○ University and violation of the Private School Act

In order to establish a joint principal offender under Article 30 of the Criminal Act, a subjective requirement is the intent and objective requirement of joint processing, which requires an execution of a crime through functional control based on a joint doctor. The intent of joint processing is not sufficient to recognize another person’s crime but to accept it without restraint. It is a single act to commit a specific criminal act with a joint doctor, and it must be transferred to the execution of one’s own intent by using another’s act (see Supreme Court Decision 2002Do7477, Mar. 28, 2003, etc.).

The court below found the defendant not guilty of this part of the facts charged on the ground that the foreigner's school received various assistance, such as free use of the building, from the ○○ University, and the defendant continued such assistance even after he assumed office on March 8, 2003 at the ○○ University president of the ○○ School. However, in light of the non-indicted 2's statement that the defendant did not participate in the support of the foreigners' school, it can be viewed that the defendant impliedly approved the support of the foreigners' school for the ○ University, which was practicely established. Furthermore, it cannot be viewed that the defendant conspiredd with the non-indicted 4, etc. to commit the crime or

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to co-principal as otherwise alleged in the prosecutor's ground of appeal.

3. As to embezzlement of school expenses for foreigners' schools and violation of the Private School Act

A. As to embezzlement

Since embezzlement is established by a person who keeps another's property to embezzlement or refuse to return the property, the subject matter shall be another's property.

In full view of the relevant Acts and subordinate statutes, including Article 10(1) of the Elementary and Secondary Education Act, Article 29(1), (2), (6), and Article 51 of the Private School Act, the lower court determined that the tuition fees and other charges paid by the students or parents of a private school shall not be entrusted to the school foundation or operator of the private school who establishes and operates the private school without reservation of ownership until used for the specified purpose and purpose, but shall be deemed to belong to the school foundation or operator of the private school upon receipt of the reservation of ownership by the students or parents. However, it is presumed that the income belonging to the school expenses accounts and the use thereof shall be strictly restricted pursuant to the relevant Acts and subordinate statutes. On the basis of the premise that the foreigners’ school was operated with Nonindicted 2 as the founder of the private school at around 196 and with Nonindicted 6 or the modification thereof obtained from the Superintendent of the Gyeonggi-do Office of Education, and the tuition fees and other charges paid by the students or parents of the foreigners’ school at will cannot be established in addition to the foreigners’ school or the private school.

In light of the above legal principles and records, the judgment of the court below is just and there is no error of law by misapprehending the legal principles as to occupational embezzlement, contrary to the prosecutor's grounds of appeal.

B. As to the violation of the Private School Act

The court below found the defendant not guilty on the charges of violation of this part of the Private School Act, on the ground that with respect to "the portion of use of funds for election funds or funds under the name of half of the revenues and expenditures" in this part of the facts charged, on the ground that the use of funds was conducted before the death of Non-Indicted 5 in front of the defendant who was the president of the foreigners' school, on the ground that Non-Indicted 2, who was involved in the creation of funds for the "the portion of raising and use of funds through a trader", stated not to raise funds in accordance with the defendant's instruction, etc., the defendant requested the non-Indicted 2, the president of the foreigners' school, to provide funds for election funds, etc. at the school's expense, or that the source of funds received was known as school expenses for the foreigners' school. On the other hand, with respect to "the portion of use of debit cards" and "the portion of use of funds under the name of the processed tuition fees", the defendant used the debit cards connected with the school expenses of the foreigners' school, etc.

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just and acceptable, and contrary to each allegation in the grounds of appeal, there were no errors of misapprehending the legal principles as to joint principal offender, or exceeding the bounds of free evaluation of evidence

4. As to the embezzlement of related school expenses, such as construction cost of ○ University, a joint principal offender with Nonindicted 4, and the violation of the Private School Act

A. As to the voluntary use of construction price under the pretext of the contract price

On March 24, 2004, the lower court found the Defendant not guilty on the ground that: (a) in collusion with Nonindicted 4, his father, the Defendant conspiredd with Nonindicted 4 that he embezzled the school expenses of ○ University in collusion with Nonindicted 4 on the sole ground that he would have received money from Nonindicted 4 at the time of election and used it for private purposes, such as election funds, by withdrawing KRW 773,300,000 from the school expenses account of ○ University; and (b) in so doing, the Defendant would not be readily concluded that he embezzled the school expenses of ○ University; and (c) there was no other evidence to acknowledge the

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just and acceptable, and contrary to the prosecutor's grounds of appeal, there is no violation of law of free evaluation of evidence against logical and empirical rules

B. As to the use of school expenses through processing services

The court below found the defendant guilty on this part of the facts charged on the ground that ○ University paid the salary in the form of service payment to Nonindicted Co. 8, a service supplier, Nonindicted 9, at the office of the defendant’s district office, Nonindicted 10 was a person working in the defendant’s election campaign, and Nonindicted 11 was a person working in the ○○ middle and high school, which is another school under the ○○ Institute’s control upon the defendant’s recommendation, and the defendant was registered as an employee of the service provider upon the permission of Nonindicted 4 or the principal of the ○ University, ○ University, and Nonindicted 12 (the mother of the defendant). On the other hand, in the case of Nonindicted 13, the court below acquitted the defendant on this part of the facts charged on the ground that there is no evidence that

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just and acceptable, and contrary to each allegation in the grounds of appeal, there were no errors of misapprehending the legal principles as to joint principal offender, or exceeding the bounds of free evaluation of evidence

5. As to the embezzlement of the teaching expenses of ○ University related to Nonindicted Co. 14 (hereinafter “Nonindicted Co. 14”) and the violation of the Private School Act

원심은, 피고인이 ○○대학 벧엘관 인테리어 공사를 한 공소외 14 회사에 공사비를 부풀려 지급하였다가 되돌려받는 방법으로 ○○대학 교비 2억 원을 횡령함과 동시에 교비회계에 속하는 수입을 다른 회계에 전출하였다는 이 부분 공소사실에 대하여, 공소외 14 회사의 공소외 15가 최초 검찰에서 공소사실에 부합하는 구체적인 진술을 하였고 이후 공소외 15가 피고인에게 2억 원을 빌려준 것이라는 취지로 종전 진술을 번복하기는 하였으나 번복진술은 그 판시와 같은 여러 사정에 비추어 믿기 어려운 점 등을 종합하여 이를 유죄로 인정하였다.

Upon examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just and there is no violation of law of free evaluation of evidence against logical and empirical rules, contrary to the defendant's ground of appeal.

6. As to embezzlement of school expenses of ○○ University related to the payment of construction expenses for private use and violation of the Private School Act

A. As to the payment of the construction cost in the first floor of e.g. coffee and ice cream burial

The lower court found the Defendant not guilty on the grounds that, in light of the circumstances as indicated in its reasoning, Nonindicted 1’s statement, consistent with the facts charged, is difficult to believe, and there is no other sufficient evidence to acknowledge the facts charged, in light of the content of the construction contract and the progress of construction, as stated in its reasoning, as to this part of the facts charged that the Defendant had the ○ University paid the ○○ University’s royalties to the 1st floor coffee and ice cream store on its first floor, which was scheduled to marry with Nonindicted 16, and thus, had the ○ University paid the ○ University’s expenses.

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just and acceptable, and contrary to the prosecutor's grounds of appeal, there is no violation of law of free evaluation of evidence against logical and empirical rules

B. As to the extension of the fifth floor of international official and the payment of the price for interior work

Article 13(2) of the Enforcement Decree of the Private School Act, which provides for matters concerning the expenditure of the accounts of school expenses by delegation of Article 29(2) of the same Act, provides that the expenditure of the accounts of school expenses shall be the expenses prescribed in each subparagraph. Since Article 13(2) of the Enforcement Decree of the same Act provides for personnel expenses and goods expenses necessary for school operation (Article 1), expenses for facilities and equipment directly necessary for school education (Article 2(2) (Article 5) and other expenses directly necessary for school education (Article 29(2) of the same Act, whether the expenditure from the accounts of school expenses falls under the expenditure of the accounts of school expenses permitted by the school expenses shall be determined by whether it is directly necessary for the school education at the time of comprehensive examination of all the relevant circumstances related to the expenditure. Meanwhile, it is established that the use of funds for any purpose other than the limited purpose is derived from the personal purpose, and as a result, it constitutes embezzlement because it realizes the intention of unlawful acquisition as its own act of use even if it is above the entrusted principal.

According to the reasoning of the judgment below, the court below found the defendant to be guilty of this part of the facts charged on the following grounds: (a) the defendant used the official residence of the fifth fifth floor of the International University for the purpose of residence, and used it for the education of the ○ University for the purpose of living with the non-indicted 16 around March 2008; (b) the construction for the expansion of the ○○ University to the living room and the interior of the living room and the interior of the kitchen; and (c) the construction cost for the interior of the living room and the bank was paid as the school expenses of the ○ University; and (d) the fact that the ○ University did not have an official residence from the beginning, and there was no provision that the ○ University will have an official residence; and (e) the above expenses were used for any purpose other than the educational purpose of the ○ University, and thus, it cannot be deemed that it was included in the expenditure of the school expenses accounts permitted under the Private School Act.

In light of the above legal principles and the records, we affirm the judgment of the court below as just, and there is no error in the misapprehension of legal principles as to intent of unlawful acquisition, as alleged in the defendant's ground of appeal.

7. Conclusion

Meanwhile, the prosecutor submitted a written appeal to the effect that he/she is dissatisfied with the entire judgment of the court below, but there is no specific grounds for appeal as to the guilty portion in the written appeal or appellate brief

Therefore, all appeals by the Defendant and prosecutor are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)