[1] The meaning of "illegal acquisition intent" in the crime of embezzlement and whether the intent to return, compensate or preserve the embezzled property after the fact can be recognized (affirmative)

[2] Whether the crime of obstruction of performance of official duties is established in a case where violence or intimidation is committed against a public official performing an act of duties lacking legality (negative)

[3] In a case where the first instance court omitted the judgment on part of the facts charged in relation to concurrent crimes, the measures to be taken by the appellate court

[1] Article 355 (1) of the Criminal Code / [2] Article 136 of the Criminal Code / [3] Article 364 (2) of the Criminal Procedure Act

[1] Supreme Court Decision 2005Do3045 Decided August 19, 2005 (Gong2005Ha, 1536), Supreme Court Decision 2010Do9871 Decided June 14, 2012 / [2] Supreme Court Decision 2004Do4731 Decided October 28, 2005, Supreme Court Decision 2010Do10305 Decided May 26, 201 / [3] Supreme Court Decision 2008Do7848 Decided February 12, 2009 (Gong2009Sang, 356)

Defendant 1 and three others

Defendants and Prosecutor

Gwangju District Court Decision 2011No648 Decided May 20, 2011

Of the judgment of the court below, the part on Defendant 1, the part on the conviction against Defendant 2, and the part on the occupational embezzlement are reversed, and this part of the case is remanded to the Panel Division of the Gwangju District Court. All of the appeals by Defendants 3 and 4, the Prosecutor’s remaining appeals against Defendant 2, and the appeals against Defendant 3 are dismissed.

1. We examine the Defendants’ appeal.

The Defendants did not submit a statement of the grounds for appeal within the statutory period, and the petition of appeal does not contain any information in the grounds for appeal.

2. Prosecutor's grounds of appeal are examined.

A. As to Defendant 1 and 2’s occupational embezzlement

(1) In full view of the adopted evidence, the court below acknowledged the fact that the ○ Medical Foundation was entrusted to the ○ Medical Foundation with the term of entrustment from June 1, 2004 to May 31, 2009 with the term of entrustment, which was established for the purpose of medical treatment and recuperation of dementia and patients with the nature of the elderly, and that the above Defendants, who were in office as the advisor of the ○○ Medical Foundation and the chief director, were deprived of the re-entrustment review due to the expiration of the term of entrustment, refused to accept the transfer of part of the medical devices, equipment, etc. purchased during the term of entrustment used by the ○ Medical Foundation (hereinafter “the instant medical device, etc.”) as the hospital they operated.

Meanwhile, Article 4(1) of the Ordinance on the Establishment and Operation of Public Long-Term Care Hospitals for the Aged in Mineyang-si provides that "the Mineyang-si may establish and operate a hospital: Provided, That if the Mayor deems it necessary, it may be entrusted to the Mayor, and Paragraph (4) of the same Article provides that "the trustee may, if deemed necessary, be entrusted with the affairs such as construction of the hospital's facilities and purchase of medical equipment." In such cases, the facilities, medical equipment

The lower court: (a) interpreted that the provision of the above Municipal Ordinance provides that the medical device purchased at the ○ Medical Foundation’s expense by directly purchasing the Mayang-si or by acting for the ○○ Medical Foundation on behalf of the Mayang-si and purchased at the Mayang-si’s expense, but the medical device purchased by the ○○ Medical Foundation at its operating income of the instant convalescent hospital or its foundation loan shall belong to the ownership of the ○○ Medical Foundation; and (b) based on such interpretation, if the medical device was purchased with the operating income of the instant convalescent hospital, not the Mayang-si’s funds, or the foundation loan, as alleged by the above Defendants, as alleged by the above Defendants, the medical device was owned by the ○○ Medical Foundation; and (c) on the ground that there is insufficient evidence to support that the medical device was owned by the Mayang-si-si

(2) However, we cannot accept the above judgment of the court below as it is.

According to the evidence duly adopted by the court below and the first instance court, ① the previous school foundation’s 00 billion won was selected as a new trustee when it renounced the operation of the instant convalescent hospital for financial reasons; ② the 00 ○ ○ ○ 200 million won was decided to be transferred along with △△ Hospital operated separately from △△ 2000,000, and ③ the subject of the transfer and acquisition of ○ ○ 207,482,000,00 won was 40,000,000,000 won was 50,000,000 won was 20,000,000,000 won was 153,70,000,000 won was 20,000,000 won was 20,000,000,000 won was 30,000,000 won was 13,000,000 won.

In light of the facts, 50 million won, which was appropriated for the loans of the convalescent Hospital in the balance sheet in 2004, is the sum of initial expenses borne by the ○○ Medical Foundation to operate the convalescent Hospital and the instant convalescent Hospital upon entrustment (100 million won for the instant convalescent Hospital + the transfer amount of 427,482,00 won for the instant ○○ Medical Foundation. This is not related to the instant convalescent Hospital, which is not the convalescent Hospital, or the investment funds paid before the instant convalescent Hospital was entrusted to the instant convalescent Hospital, and it is evident that the instant convalescent hospital was not used as operating funds while the instant convalescent was entrusted to the instant convalescent hospital. Meanwhile, since the foregoing Incorporated Loan was finally 460,000,000 won (=560,000,000 won-10,0000 won) during the period of entrustment, it is reasonable to view that the Defendant’s assertion that the instant loans were accrued during the period of entrustment.

Article 33(2) of the Medical Service Act prohibits the establishment of a medical institution for profit-making purposes. This is merely to maintain the quality of medical care and to protect people's health by establishing a sound order in medical care, and to prevent risks to people's health that may arise when a medical institution is established for profit-making purposes (see Constitutional Court en banc Order 2001Hun-Ba87, Mar. 31, 2005). In light of the purport of prohibition of profit-making hospitals, medical corporations as well as their members can not distribute operating profits to other medical corporations that are entrusted with the establishment. Article 7(2) of the above entrustment contract provides that "the operation of a hospital shall be kept separate accounts, and the operating profits of the hospital shall be used for the operation of the hospital and its re-investment in the facilities of the hospital." Thus, it should be viewed that ○○○ Medical Foundation's ownership or profit-making profit-making profit-making profit-making profit-making profit-making profit-making expenses of the medical institution of this case should be included in the instant medical institution.

Ultimately, the Defendants embezzled the instant medical device, etc. owned by Mineyang-si, and the intent of unlawful acquisition in the crime of embezzlement refers to the intent to dispose of another person’s property in violation of his/her duty for the purpose of pursuing his/her own or a third party’s interest, such as in the case of his/her own possession, and even if there is an intention to return, compensate, or preserve it later, there is no difficulty in recognizing the intent of unlawful acquisition (see, e.g., Supreme Court Decision 2005Do3045, Aug. 19, 2005). Thus, the Defendants cannot be deemed to have no intention of unlawful acquisition solely on the ground that the losses suffered by the Defendants incurred in Yangyang-si in relation to the operation of the instant convalescent hospital could be deducted from the deposit money of

Therefore, the lower court acquitted the Defendant of this part of the facts charged on the ground that there is insufficient evidence to acknowledge that the instant medical device, etc. was owned by the ○○ Medical Foundation on the premise that the operating revenues of the instant convalescent hospital belong to the ○○ Medical Foundation. In so doing, the lower court erred by misapprehending the legal doctrine on the ownership of and the status of the custodian in embezzlement of the instant medical device, etc.

B. As to the obstruction of performance of official duties by Defendant 2 and 3

The crime of obstruction of performance of official duties stipulated in Article 136 of the Criminal Code is established only when the execution of official duties is legitimate. Here, legitimate execution of official duties refers to not only the abstract authority of the public official, but also the case where the specific requirements and methods are met. Thus, even if the act of assault or intimidation against the public official performing the act of lack of legality, it cannot be deemed that the crime of obstruction of performance of official duties is established (see Supreme Court Decision 2004Do4731, Oct. 28, 2005).

After recognizing the facts as indicated in its reasoning based on the adopted evidence, the lower court maintained the first instance court’s measure that acquitted the Defendants of this part of the charges on the following grounds: (a) the primary purpose of the instant provisional disposition is to exclude the Defendants’ possession of all the medical devices, including the building in the convalescent hospital in this case and the goods carried out, and to transfer the possession thereof; (b) such obligation is not a direct exercise of power in the compulsory realization of it; and (c) it is not an alternative act obligation; and thus, (d) it cannot be deemed a legitimate performance of duties due to its failure to meet the requirements under the Administrative Vicarious Execution

In light of the above legal principles and records, the judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the duty of alternative act subject to vicarious administrative execution or the legality requirement

3. The decisions are made ex officio;

According to the records, in addition to the facts charged by the court below which found Defendant 1 not guilty, the facts charged of this case against Defendant 1 included that " around June 22, 2009, at the second floor of the convalescent hospital of this case, Defendant 1 collected documents files on his book from the department of the second floor of the convalescent hospital of this case and assaulted the victim." However, the court of first instance and the court below did not make any judgment on this part.

If the judgment of the court of first instance is omitted on part of the facts charged in relation to concurrent crimes, the court below should reverse ex officio the omitted part of the first instance court and render a judgment on that part without any allegations by the parties (see Supreme Court Decision 2008Do7848, Feb. 12, 2009). Nevertheless, the court below’s failure to make any judgment on the facts charged in relation to which the court of first instance omitted a trial in the court of first instance had an error of law that affected the conclusion of

4. Scope of reversal

Of the judgment of the court below, the part not guilty against Defendant 1 (the point of occupational embezzlement) of the judgment of the court below should be reversed, and since the part of assault against Defendant 1’s non-indicted victim is omitted in the judgment, it should also be reversed. This is also a concurrent crime under the former part of Article 37 of the Criminal Act with the conviction against Defendant 1. Therefore, the part of the judgment of the court below against Defendant 1 in its entirety should be reversed

Of the judgment of the court below, the part concerning the occupational embezzlement of Defendant 2 (the occupational embezzlement and the obstruction of performance of official duties) should be reversed. This is a concurrent crime with the conviction of Defendant 2, and one sentence should be sentenced in relation to the concurrent crimes under the former part of Article 37 of the Criminal Act. Therefore, the part concerning the conviction of Defendant 2 and the acquittal of the occupational embezzlement of the judgment of the court below should be reversed in its entirety.

5. Conclusion

Therefore, the part of the judgment of the court below as to Defendant 1, the guilty part against Defendant 2, and the part concerning occupational embezzlement are reversed, and that part of the case is remanded to the Panel Division of the Gwangju District Court for further proceedings consistent with this Opinion. Defendant 3 and 4, the Prosecutor’s remaining appeals against Defendant 2, and the Prosecutor’s remaining appeals against Defendant 3 are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)