The case holding that the crime of occupational embezzlement is not established in case where the money raised under the pretext of the Culture and Arts Promotion Act was arbitrarily consumed before the Constitutional Court unconstitutionality is decided based on the former Culture and Arts Promotion Act which lost its effect by the

The case holding that the crime of occupational embezzlement is not established on the grounds that the defendant's ownership of the Culture and Arts Promotion Fund collected belongs to the Korean Culture and Arts Promotion Institute or the defendant's status as a person who keeps the money in custody of the Korean Culture and Arts Promotion Institute under the provisions of Articles 19 (5) and 19-2 (3) of the former Culture and Arts Promotion Act (amended by Act No. 6132 of Jan. 12, 2000), and Articles 34 and 35 of the former Enforcement Decree of the Culture and Arts Promotion Act (amended by Presidential Decree No. 1690 of Oct. 23, 200), if the defendant arbitrarily consumed the money collected under the pretext of the Culture and Arts Promotion Fund, and the validity of the Constitutional Court's decision of unconstitutionality under Articles 19 (5) and 19-2 (3) of the same Act was extinguished.

Articles 355(1) and 356 of the Criminal Act; Articles 19(5) and 19-2(3) of the former Culture and Arts Promotion Act (Amended by Act No. 6132, Jan. 12, 2000); Articles 34 and 35 of the former Enforcement Decree of the Culture and Arts Promotion Act (Amended by Presidential Decree No. 16990, Oct. 23, 200)

Defendant

Prosecutor

Kim Ho-ro

Seoul Central District Court Decision 2000Kadan307 delivered on February 5, 2004

The prosecutor's appeal is dismissed.

1. Summary of the prosecutor's grounds for appeal;

Article 19(5) and Article 19-2(3) of the former Culture and Arts Promotion Act (amended by Act No. 6132, Jan. 12, 200; hereinafter referred to as the "Act") with respect to the payment of the Culture and Arts Promotion Fund of this case, the contents and scope of the decision of unconstitutionality of the Constitutional Court is not to be determined as unconstitutional but to be delegated to the Presidential Decree without specifying the scope of delegation as to the entire amount and method of the Culture and Arts Promotion Fund of this case. Thus, since the provision on the method of collecting the Culture and Arts Promotion Fund of this case cannot be deemed as unconstitutional because it has no effect on the ownership relation of the money actually collected, the ownership of the Culture and Arts Promotion Fund should belong to the Korean Culture and Arts Promotion Institute, and as long as the defendant under the supervision of the defendant has kept the subject and scope of the decision of unconstitutionality of the Korean Culture and Arts Promotion Fund of this case, the defendant is not found to be not guilty on the ground that he was not guilty.

2. Determination on the grounds for appeal

A. Summary of the facts charged in this case

The Defendant, a person operating a performance planning company, who is engaged in the business of collecting and paying money from the visitors to the public performance hall by lending the performance hall, etc. which is a facility for raising the Culture and Arts Promotion Fund, and is engaged in the business of collecting and paying money from the said visitors. From June 2, 1998 to May 23, 199, the Defendant embezzled KRW 12,305,134, which was collected from visitors for the purpose of the Culture and Arts Promotion Fund, for the purpose of the Victim’s Korean Culture and Arts Promotion Foundation, while performing their duties, he arbitrarily consumed and embezzled it for private purposes, such as production costs, etc.

(b) unconstitutional recommendations and decisions of the Constitutional Court on the provisions relating to the former Culture and Arts Promotion Act;

(1) relevant provisions of law

Article 19 (Raising of Funds) (1) The Korean Culture and Arts Promotion Institute may, if deemed necessary for raising the Fund, raise funds to those who view or use the following facilities with the approval of the Minister of Culture and Sports:

1. Performance halls;

2. Museums and art galleries; and

3. Designated cultural properties for which the admission fee is collected under Article 39 of the Protection of Cultural Properties Act (excluding the cultural properties owned by religious organizations).

(2) The Minister of Culture and Sports shall, upon approval under paragraph (1), notify it to the Minister of Home Affairs and publicly announce it in the Official Gazette.

(3) The Korean Culture and Arts Promotion Institute shall, when it obtains approval for raising funds pursuant to paragraph (1), notify the operator of the facilities subject to raising of the details of approval for raising funds, and the operator of the facilities subject to raising funds notified of the details of such approval shall collect from persons who view or use the relevant

(4) When the operator of the facilities subject to collection under paragraph (3) pays the collected amount, he/she shall submit the data related to such collection together.

(5) The amount of contributions raised, designation of a fund-raising agency, fees for contributions, method of contributions-raising, relevant data and other necessary matters shall be determined by the Presidential Decree.

(1) A person who rents a facility from the operator of the facility subject to collection referred to in Article 19 (3) of the Act shall, in lieu of the operator of the facility subject to collection, raise money from those who view or use the facility in question, and pay the collected amount and submit related materials to the operator of the facility subject to collection.

(2) An operator of facilities subject to collection shall pay and submit the collected amount and related data referred to in paragraph (1) to the Korean Culture and Arts Promotion Institute.

(3) Necessary matters concerning the amount of raising funds, fees, method of raising funds, and related data under paragraph (1) shall be prescribed by Presidential Decree.

(2) On February 7, 2002, the court below requested an adjudication on the unconstitutionality of Article 19(5) and Article 19-2(3) of the Act to the Constitutional Court. On December 18, 2003, the Constitutional Court rendered a decision of unconstitutionality as to the above provision of the Act (the Constitutional Court en banc Decision 2002Hun-Ga2, Dec. 18, 2003). Since four Justices' opinions per se infringe on the property rights of the people beyond the limit of special charges, the above provision of the Act, which delegates the designation of the collection agency, collection fee, collection method, etc. to the Presidential Decree, was unconstitutional, and the four Justices' opinions were unconstitutional, which make it necessary to comprehensively determine the scope of delegation of the above provision of the Act, which is an essential provision of the Act, and thus, it is more specific that the legislative authority and method of collecting property rights of the people, which is an essential element of delegation of the Act.

C. The judgment of the court below

As long as the Constitutional Court rendered a decision of unconstitutionality with respect to Articles 19(5) and 19-2(3) of the Act, the lower court found the Defendant not guilty of the facts charged of this case under the former part of Article 325 of the Criminal Procedure Act, on the ground that the Defendant did not have a status as a person who keeps money in the name of the Culture

D. Judgment of the court below

The above decision of unconstitutionality of the Constitutional Court does not include cases where the applicable provisions of the facts charged in this case (Articles 356 and 355(1) of the Criminal Act) are sentenced, and it is necessary to determine whether the defendant's status as a custodian is extinguished due to the above decision of unconstitutionality through interpretation of the relevant legal provisions. The relevant provisions of the law applied at the time when the defendant takes charge of public performance as shown in the facts charged in this case are as mentioned above. The Enforcement Decree of the Korean Culture and Arts Promotion Institute (amended by Presidential Decree No. 1690 of October 23, 2000) delegated under Articles 19(5) and 19-2(3) of the Act provides for the "amount of money raised to visitors for each facility subject to collection" with the approval of the Minister of Culture and Sports in accordance with Article 34(1) of the Enforcement Decree of the Korean Culture and Sports, and the head of the Korean Culture and Sports Promotion Promotion Institute may designate the amount of money collected by proxy with the approval of the Agency under Article 14(3) of the Act.

Furthermore, according to the records, the Korean Culture and Arts Promotion Institute at the time determined the subject of the collection of the Culture and Arts Promotion Fund in 198 and 199 as a paid public performance, etc. conducted by the State, local governments, public institutions, or individuals located in each city (including the Special Metropolitan City and Metropolitan Cities) throughout the country. The method of the collection is to collect a certain rate based on the user's admission fees or admission fees of facilities subject to the collection, excluding theaters, at least 3,001 entrance fees, 6% of entrance fees in cases of other performance halls, excluding theaters, and the collection agency shall be the operator of the performance hall operated by the State, local governments, public institutions, or private institutions, or private organizations, at the 1998 and 3rd of December 23, 1997; the Korean Culture and Arts Promotion Institute from the 196th of March, 198 to the 196th of March, 198; and the above performance hall includes the Seoul Culture and Arts Promotion Center, the Seoul Education Center from the 196.

In light of the above facts and relevant regulations, the letter of approval for the collection of the Culture and Arts Promotion Fund and the contents of notification in 198, 199, the defendant is deemed to have collected the Culture and Arts Promotion Fund in this case equivalent to 6% of entrance fees as a fund-raising agency of the Korean Culture and Arts Promotion Institute. The decision of the court below that held the defendant not guilty on the ground that the defendant's act constitutes an act of collecting the Culture and Arts Promotion Fund under the former part of Article 19 (5) and Article 19-2 (3) of the Act, which is a specific basis for the "amount of approval by the Minister of Culture and Sports, designation of fund-raising agency, collection fee, collection method, related data and other matters", which is a delegation law of the Enforcement Decree of the Korean Culture and Arts Promotion Fund, has lost its validity as the decision of unconstitutionality of the Constitutional Court. Accordingly, the decision of the court below which held the defendant not guilty on the ground that the defendant's act of collecting the Culture and Arts Promotion Fund cannot be deemed to fall under the status of the Korean Culture and Arts Promotion Institute.

3. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Jin-jin (Presiding Judge)