[1] In a case where the representative of a corporation pays the litigation expenses for the provisional disposition case of a director who received an application for the suspension of performance of duties from the corporate expenses (negative in principle), whether the crime of occupational embezzlement is established (negative)

[2] Where a corporation becomes a party to a lawsuit, whether attorney fees may be paid at the cost of the corporation (affirmative in principle)

[1] Articles 355(1) and 356 of the Criminal Act / [2] Articles 355(1) and 356 of the Criminal Act

[1] Supreme Court Decision 2006Do9100 Decided December 28, 2007, Supreme Court Decision 2008Do10826 Decided March 12, 2009 (Gong2009Sang, 517) Supreme Court Decision 2010Do4512 Decided June 24, 2010 / [2] Supreme Court Decision 2007Do9679 Decided June 26, 2008

Defendant

Defendant

Changwon District Court Decision 2016No179 decided April 7, 2016

The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

The grounds of appeal are examined.

1. The summary of the facts charged in the instant case is that the Defendant, elected by the chairperson of the Operation Committee of the Operation Committee of the ○○ Complex Management Steering Committee (hereinafter “the instant Steering Committee”) for shop occupants, withdrawn KRW 3300,000 from around March 13, 2015, while carrying out management expenses on behalf of the shop occupants, and embezzled them as attorney fees, etc. for the case of application for temporary suspension of the performance of duties, which is one’s personal use (hereinafter “instant application case”).

2. According to the reasoning of the lower judgment, the lower court determined that: (a) in light of the following: (i) the instant application case and the instant case of nullification of invalidation of an election instituted against the instant Steering Committee (hereinafter “instant case”), the litigation brought to substantially nullify the election of the Defendant; (ii) the decision was rendered to suspend the performance of duties of the Defendant in the instant case; and (iii) the decision was rendered to confirm that the election of the Defendant as the Chairperson of the Operation Committee (hereinafter “instant election”) was invalid; and (b) the decision was issued by the first instance court to suspend the performance of duties of the Defendant; and (iii) the appointment of the Acting Director after the decision to suspend the performance of duties of the Defendant was issued and the appointment of the Acting Director would not interfere with the performance of duties

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. In a case where an application for provisional disposition against a director of a corporation is accepted, it is apparent that the performance of duties by the director who performs the duties of the corporation would substantially interfere with the corporation’s performance of duties. As such, the corporation concerned needs to bring an objection against the application for provisional disposition unless there is no room for dispute because the absence of director qualification is objectively obvious, and the representative of the corporation pays litigation expenses incurred in the pertinent provisional disposition case from the corporation’s expense. Accordingly, it cannot be deemed that such payment was embezzled for corporate expenses (see Supreme Court Decision 2010Do4512, Jun. 24, 2010). This legal doctrine likewise applies to cases where the attorney’s fee appointed by the chairman of the Commercial Building Management and Operation Committee to respond to the application for suspension of duties raised against him/her is paid from the commercial building management expenses.

In addition, in case where a corporation itself becomes a party to a lawsuit, the performance of the lawsuit can, in principle, be deemed as the performance of the corporation's business, so that the corporation is a party to the lawsuit formally and there is a separate party to the lawsuit, and the corporation has no particular interest in the outcome of the lawsuit, the attorney fee may be paid as the expenses of the corporation unless there are special circumstances to deem that there is no particular interest in the outcome of the lawsuit (see Supreme Court Decision 2007Do9679,

B. Examining the records in light of the above legal principles, ① the defendant paid attorney fees for the case on the merits of this case to which the management committee of this case was a party to the case of the 3.3 million won for management expenses, and the case of this case which was brought to the 3.3 million won for which the management committee of this case was a party, ② the shop occupants also raised an objection to the composition of the management committee of this case, so the qualifications of the defendant and the members of the management committee of this case and the validity of the business handled by the management committee of this case can be a chain of problems, so there was a substantial interest to the management committee of this case. ③ The case of this case and the first instance court of this case did not have an objective possibility of dispute over the management expenses of this case, and ③ the election of this case were invalidated under the premise that the election of this case would be invalidated only when it is deemed that there was a violation of laws and regulations in the election process, and the appellate court of this case withdraws the lawsuit in this case, while the mediation of this case would be established to accept the election management expenses of this case.

C. Nevertheless, the lower court erred by misapprehending the legal doctrine on occupational embezzlement, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)