Whether embezzlement is established in case where a person entrusted with administrative affairs involving the receipt of money has reverted to money received from a third party for the delegating person based on such act, and where the delegating person has set off and appropriated the money to his/her own claim against the delegating person on his/her own (affirmative)

Article 355(1) of the Criminal Act

Supreme Court Decision 2001Do3100 Delivered on September 10, 2002

Defendant

Defendant

Seoul Southern District Court Decision 2006No852 decided Nov. 28, 2006

The appeal is dismissed.

The grounds of appeal are examined.

Unless there is any special agreement that a person to whom the administration of affairs involving the receipt and receipt of money receives money from a third party for the delegating person, the money received from the delegating person on the basis of the act belongs to the delegating person’s ownership at the same time with the receipt of the money, and the delegated person shall be deemed to have a relationship in the custody of the delegating person, barring any special circumstances. The delegated person shall also be deemed to have a relationship in the custody of the delegating person. The money received from a third party for the delegating person on the ground of the act is not used in accordance with the purpose or purpose of the delegation, and the offset appropriation for the defendant’s claim against the delegating person in mind without using it in accordance with the purport of the delegation. Unless there is an agreement that he/she would make a offset settlement, it constitutes embezzlement (see Supreme Court Decision 2001Do3

The court below maintained the first instance court's decision that found the defendant guilty of the crime of this case on the ground that the defendant's arbitrary use of the consignment amount to be attributed to the non-indicted corporation in the course of the settlement of offset or the absence of the declaration of set-off will constitute embezzlement, by ordering the defendant to convert the consignment amount into the credit sales amount in the future, and to dispose of the money received through the consignment amount as the sales amount of juria cosmetic cosmetic cosmetic cosmetic cosmetic cosmetic cosmetic cosmetic cosmetic. The defendant arbitrarily used the consignment amount collected at each shop. On the contrary to the above legal principles and the records, the court below affirmed the first instance court's decision that found the defendant guilty of the crime of this case on the ground that it constitutes embezzlement, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the omission of judgment, mistake of facts due to violation of the rules of evidence, and intention

The Supreme Court precedents cited in the argument in the grounds of appeal are different from this case, and they cannot be applied as they are in this case.

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

Justices Kim Young-ran (Presiding Justice)