(a) The case holding that it cannot be readily concluded that there was no resolution of the board of directors on the above matters unless all the directors who agreed to the resolution of the board of directors with the intention of attending the meeting, although the board of directors was not held regularly on the resolution of the clan;

(b) The case holding that it is impossible to recognize the intention of unlawful acquisition by the directors of a clan who have agreed to lend the money of the clan to the officers, etc. of the clan without holding a board of directors regularly;

A. The case holding that, although the lending of the clan money to the clan members is a resolution of the board of directors of the clan, the quorum of the board of directors of the clan shall be held with the attendance of the majority of the registered directors, and shall be decided with the 2/3 or more of the members present at the meeting, and it cannot be concluded that the lending of the above money was made without the resolution of the board of directors as long as 5 members of the board of directors agreed to the holding of the board of directors except 4 members who were residing in the area nine members of the total members of the board of directors.

(b) The case holding that if part of the funds deposited by the members of a clan were withdrawn from the funds of the insurance company to lend them to the executives, etc. of the clan, and there was no provision prohibiting the lending of the clan property to the members of the clan under the clan Regulations, and if the above clan members had the condition that they pay interest above the interest rate paid by the insurance company to the above funds, they cannot be deemed that the person who keeps the clan property, that is, the intention of acquiring the clan property, had the intention to dispose of them for his own or for a third party's interest against the purpose of the entrustment.

Articles 356 and 355(1) of the Criminal Act

B. Supreme Court Decision 84Do2112 delivered on November 13, 1984 (Gong1985,51) 90Do599 delivered on May 8, 1990 (Gong190,1301)

A

Defendant

Attorney B

Seoul Criminal Court Decision 91No6260 delivered on January 30, 1992

The judgment of the court below is reversed and the case is remanded to the Panel Division of the Seoul Criminal Court.

We examine the Defendant’s grounds of appeal.

According to the reasoning of the judgment below, the court below acknowledged the facts charged that the defendant, who was working as the vice-chairperson of the clan C, conspired with other officers of the above clan C, deposited the education insurance in the name of three members such as the chairperson of the clan, and deposited the above clan's deposit in an occupational custody, and then embezzled the amount of KRW 1.2 million from among the above clan's deposit in the above clan's possession without the resolution of the above clan D, and recognized the facts charged that the defendant embezzled the amount of KRW 6 million by withdrawing and lending the amount of KRW 6 million without the resolution of the above clan.

However, the establishment of embezzlement requires a person who keeps another's property in his/her own possession in violation of the purpose of entrustment for his/her own interest or for the benefit of a third party. According to the evidence cited by the court below, although the above rules of the clan provide that the defendant shall obtain a resolution of the board of directors or the general meeting, he/she can recognize that he/she should withdraw and lend the money as stated in its reasoning from the deposits which are clan properties without the general meeting or the general meeting of the board of directors. However, in full view of the above evidence and a copy of examination of witness (record 100) of the above rules of the clan clan and Da, and the above rules of the clan clan clan 136 (No. 136), matters concerning the establishment and operation of the general meeting shall be resolved by the board of directors, and the quorum of the board of directors shall be more than 2/3 of the members present at the meeting of the board of directors, and the above rules of the clan 4 or more of the members present at the meeting and the above rules of the E clan excluding the above 4 or the members of the above clan.

According to the above facts, the lending of each of the above money to the defendant and the above E constitutes the operation of a clan property, which can be done by the resolution of the board of directors, and as long as all the directors who have been considered to be able to attend the board of directors have consented thereto, it cannot be concluded that the lending of the above money was done without the resolution of the board of directors, and it cannot be said that there was an intention of the person who keeps the clan property, that is, the intention of unlawful acquisition, to dispose of it as he own or for a third party's interest in violation of the purpose of the entrustment, and there is no other evidence to acknowledge the intention of unlawful acquisition by the defendant

Therefore, although the facts charged of this case cannot be recognized as the intention of unlawful acquisition in the crime of occupational embezzlement, it constitutes a case where there is no proof of crime, the judgment of the court below which found the defendant guilty of excessive debt shall be erroneous in the misunderstanding of the legal principles as to the crime of occupational embezzlement, which affected the conclusion of the judgment, and therefore, the argument of this case is with merit.

Therefore, without examining the remaining grounds of appeal, 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.

Justices Kim Sang-won (Presiding Justice)