In a case where Defendant (the president of a tourist resort development project cooperative) was indicted for embezzlement by receiving remuneration in the name of benefit from the cooperative’s account without going through the procedures stipulated in the articles of association, and using it for personal repayment, the case rejecting Defendant’s assertion that embezzlement cannot be established on the ground that Defendant cannot assert his/her claim for remuneration, unless he/she received remuneration through the resolution of the board of

In a case where Defendant (the president of a tourist resort development project cooperative) was indicted on charges of embezzlement by receiving remuneration in the name of personal debt, etc. from an account in the name of the cooperative without going through the procedures prescribed by the articles of association, the case rejecting Defendant’s assertion that the crime of embezzlement is a matter of civil settlement, even if the Defendant had a right to claim remuneration, on the ground that, in light of the fact that the development agreement, which is the articles of association, provides that remuneration for executive officers of the cooperative may be paid according to the resolution of the board of directors, and that remuneration for executive officers of the cooperative shall be governed by the regulations of the general meeting, unless he/she was paid by the resolution of the board of directors or the regulations of remuneration that is approved by the general meeting, he/she cannot assert the right to claim remuneration against the cooperative.

Articles 355(1) and 356 of the Criminal Act

Defendant

Defendant

Attorney Lee E-soo

Daejeon High Court Decision 2012No387 decided February 6, 2013

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed by a defense counsel).

1. The judgment of the court below

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which convicted the defendant, who is the president of the non-indicted 1 cooperative (hereinafter "the cooperative of this case"), committed embezzlement by delivering five promissory notes with a face value of KRW 30,000 from non-indicted 2 to non-indicted 3 for the payment of his personal obligations while he kept for the cooperative of this case in custody, and by using the amount of KRW 78 million from the account in the name of the cooperative of this case as the defendant's salary, without undergoing the development rules or the resolution of the board of directors as stipulated in the articles of association of this case.

2. Judgment on the grounds of appeal

A. The defense counsel asserts that since the defendant has the right to remuneration by serving as the chief of the association or the chief of the association of this case, even if he did not undergo the resolution of the board of directors stipulated in the articles of association, etc., this is a matter of civil settlement and cannot be established as embezzlement.

On the other hand, according to the evidence adopted by the court of first instance, Article 21 of the Development Regulations, which is the articles of incorporation of the association of this case, shall be paid by the resolution of the board of directors. Article 19 of the Articles of incorporation, which is the resolution of the general meeting of June 2, 2004 of the union of this case, provides that remuneration for union full-time officers shall be paid by the union of this case according to the regulations of remuneration authorized by the general meeting. Thus, unless the defendant is not paid by the resolution of the board of directors or by the regulations of remuneration which is approved by the general meeting of the union of this case, he cannot assert his right to remuneration against the union of this case. Thus, the above ground of appeal on the premise that his right to remuneration exists is without merit.

B. The defense counsel asserts that the defendant's legal effect of the above debt burden is not attributed to the union of this case but belongs to the defendant, since the defendant's legal effect of the above debt burden is not attributed to the union of this case by borrowing five promissory notes from non-indicted 2.

However, even if the representative of a corporation did not undergo a resolution of the board of directors with respect to external transactions, if the other party to the transaction knew or could have known that there was no resolution of the board of directors (see Supreme Court Decision 89Do570, May 23, 1989). According to the evidence duly adopted by the court of first instance, the court of first instance maintained by the court below decided on January 16, 2008 that the articles of incorporation of the association of this case included "the matters enumerated in the resolution of the general meeting, including the borrowing of funds," in Article 21 of the articles of incorporation of the association of this case in addition to the phrase "after the resolution of the board of directors and report to the subsequent general meeting", it is difficult to find that the above five promissory notes were borrowed from the board of directors of the association of this case before and after May 16, 2008, and there is no reason to view that the above part of the promissory notes was subject to the resolution of the board of directors. Therefore, it is difficult to find the above part of the grounds for appeal.

C. The defense counsel asserted that the "compensation payment rules" under Article 19 of the articles of association adopted at the general meeting of the union of this case on June 2, 2004 stipulated the salary of the president of the union as the salary of two million won per month and three million won per month. Thus, the defendant's embezzlement amount received should not include the remuneration stipulated in the above "compensation payment rules". However, upon examining the records, the defendant and his defense counsel asserted that the articles of association adopted at the general meeting of the first instance court from June 2, 2004 to the original court is invalid and that there is no provision on the payment of remuneration. Thus, the allegation in the grounds of appeal in the above grounds of appeal is the first appeal, and it cannot be a legitimate ground of appeal.

D. Examining the other allegations in the grounds of appeal by the court of first instance, which were adopted by the court of first instance maintained by the court below, or the evidence adopted by the court of first instance based on the records, the court below’s decision is justifiable. In so doing, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of the rules of evidence or by misapprehending the legal principles

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)