[1] Whether the crime of occupational embezzlement is established separately from the crime of provisional payment of share capital under the Commercial Act in a case where a person borrows money from another person and withdraws money and uses it for the repayment of the borrowed money (negative with qualification)

[2] Whether an unlawful acquisition intent may be inferred where the representative director of a corporation withdraws and uses the company's money (affirmative) and fails to present evidentiary documents as to the place of use (affirmative)

[1] In the crime of occupational embezzlement, the expression "an intention of unlawful acquisition" refers to an intention of disposal of the company's property in violation of his/her occupational duties, such as its own property or a third party's own property. In general, in cases where a person in charge of the establishment of a corporation borrows an amount equivalent to the paid-in capital from a third party other than the payment bank, and pays the paid-in capital, and withdraws it immediately after the registration of incorporation is completed, and uses it for repayment of the above borrowed debt, the payment of the paid-in capital shall be effective against the company and the immediately paid-in capital shall be deemed as the company's property. Thus, the act of withdrawal of the paid-in capital shall be deemed as an act of unlawful acquisition of company's property separate from that of the provisional paid-in capital under the Commercial Act, and it shall not be deemed as an act of establishing the company's own property, regardless of the fact that the person in charge of the establishment has actually contributed funds to be equipped with human resources and material resources prior to its incorporation, but it shall not be deemed as an act of withdrawing or using the paid-in capital immediately after the payment of the company's.

[2] If the representative director of a corporation withdraws and uses the company's money, and fails to present documentary evidence as to the place of use, and fails to give reasonable explanation as to the reason for withdrawal and payment of the money, such money may be inferred to withdraw the company's money with the intent of unlawful acquisition and use it for personal use.

[1] Articles 355(1) and 356 of the Criminal Act, Article 628 of the Commercial Act / [2] Articles 355(1) and 356 of the Criminal Act

[1] Supreme Court Decision 80Do537 decided Apr. 13, 1982 (Gong1982, 539)

Defendant

Defendant

Attorney Kang Han-soo

Gwangju High Court Decision 2002No84 decided May 9, 2003

The conviction part of the judgment below is reversed and the case is remanded to the Gwangju High Court.

1. As to the occupational embezzlement of Paragraph 1 of the first instance judgment as cited by the court below

A. Based on the evidence adopted by the court below, the court below acknowledged the facts charged that the defendant, as the actual manager of the non-indicted 1's company, deposited in the deposit account in the name of the representative director of the non-indicted 1 company on January 25, 1995, withdrawn the capital of 200 million won of the non-indicted 1 company, which was kept in the custody, and arbitrarily used for his personal debt repayment, and recognized the defendant's intent of unlawful acquisition, and maintained the court of first instance, which was sentenced to the crime of occupational embezzlement.

B. In the crime of occupational embezzlement, the expression "an intention of unlawful acquisition" refers to the intention of disposal of the company's property in violation of the occupational duties, such as its own property or a third party's own property. In general, where a person in charge of the establishment of a stock company borrows an amount equivalent to the paid-in capital from a third party other than the payment bank, and withdraws it immediately after the registration of incorporation is completed, and uses it for repayment of the above borrowed debt, the payment of the paid-in capital shall be effective against the company and the immediately paid-in capital shall be deemed as the company's property. Thus, the act of withdrawal of the paid-in capital shall be deemed as an act of unlawful acquisition of company's property separate from that of the provisional paid-in capital under the Commercial Act, but it shall not be deemed that the company's own property was established by contributing funds for the establishment of the company with substantial human and material facilities prior to its incorporation, but it shall not be deemed that there was an intention of withdrawal of the company's own property after its incorporation registration and its subjective withdrawal of the paid-in capital after its incorporation.

According to the records, the defendant established a non-indicted 1 company of KRW 200 million in capital for the purpose of operating general waste disposal business under the Wastes Control Act, and made efforts to have conditions for permission such as various facilities prescribed by the above Act by having the defendant take over the whole stocks from the establishment stage, and investing considerable expenses from the establishment stage of the company. On January 25, 1995, he borrowed the full payment amount of the stock price from a third party, deposited it to the payment bank for the stock price, withdrawn it after the registration of incorporation, and repaid the above borrowed debt. The defendant thereafter invested considerable money to the non-indicted 1 company by the end of June 1995, and applied for permission of general waste disposal business under the above Act to the competent government office as to which the defendant applied for the above general waste disposal business under the name of the non-indicted 1 company, and the defendant did not have an adequate amount of the capital before and after the incorporation of the non-indicted 1 company. Accordingly, according to the fact that the defendant did not have an adequate amount of the capital before and after its establishment, the amount of the above fixed asset amount of KRW 17.

Therefore, the court below should have deliberated more on the above point, and should have determined whether the defendant had the intent to obtain unlawful acquisition at the time of withdrawal of the above money, but without doing so, found the defendant guilty of embezzlement by recognizing the defendant's intent to obtain unlawful acquisition as to this part of the facts charged. In so doing, the court below erred by misapprehending the legal principles on the intent to obtain unlawful acquisition in embezzlement, which led to the failure to exhaust all necessary deliberations,

2. As to the embezzlement of business as provided in paragraphs 2 and 3 of the first instance judgment

A. The summary of this part of the facts charged is as follows: (a) as the representative director of Nonindicted Company 1, the Defendant arbitrarily transferred KRW 30,000,000 deposited in the account of Nonindicted Company 1 on January 26, 1998, to the account of Manam-do in the course of performing his duties, and embezzled it; (b) on June 12, 1998, the Defendant withdrawn KRW 193,925,000 deposited in the account of Nonindicted Company 1 in the course of performing his duties and embezzled it by arbitrarily using it as stock investment, etc. around that time.

B. The lower court’s recognition and determination

From 195 to 198, the Defendant: (a) lent the money borrowed from Nonindicted Company 1 in the form of a provisional loan from the Defendant’s personal or another person; and (b) has been repaid in the form of a half of the amount. The withdrawn money under paragraph (1) of the above facts charged was lent by the Defendant to Nonindicted Company 1 through a half of the borrowed money from another person; (b) the withdrawal money under Paragraph (2) above was transferred to Do-nam to the Defendant to repay the borrowed money as the representative director of Nonindicted Company 1; and (c) the Defendant received the borrowed money from her own or her own contribution to Nonindicted Company 1 and did not constitute an occupational embezzlement crime because it was difficult for the Defendant to believe that there was no intention to acquire the above money from 195 to 197; and (d) in light of the above facts charged, the lower court made it difficult for the Defendant to have stated that the Defendant lent the money to Nonindicted Company 1 in the form of an investigative agency and its source from 1995 to 197.

C. The judgment of this Court

However, it is difficult to obtain evidence preparation, fact-finding and judgment of the court below on this basis for the following reasons.

(1) The evidence that the first instance court maintained by the lower court acknowledged as guilty of this part of the facts charged has some of the Defendant’s prosecutor’s office and court’s statements, witness ore, or misunderstanding metal’s prosecutor’s office and court’s office.

(2) 기록에 의하면, 공소외 1 회사의 회계장부인 현금출납장 및 원장과 대차대조표(공판기록 175쪽 이하) 등에는 그 설립년도인 1995.부터 1999. 말까지 피고인이 공소외 1 회사에 가수금(주주·임원·종업원단기차입금) 형태로 대여한 금원의 잔액(편의상 십만단위 이하 금액은 반올림한 대략적 금액이다)에 관하여 ① 1995. 말 149,000,000원, ② 1996. 말 177,000,000원(당기 반제액 309,000,000원, 당기 차입액 338,000,000원, 전년 대비 순증가액 28,000,000원), ③ 1997. 말 375,000,000원(당기 반제액 550,000,000원, 당기 차입액 748,000,000원, 전년대비 순증가액 198,000,000원), ④ 1998. 말 133,000,000원(당기 반제액 898,000,000원, 당기 차입액 656,000,000원, 전년대비 순감소액 242,000,000원), ⑤ 1999. 말 39,000,000원(당기 반제액 270,000,000원, 당기 차입액 176,000,000원, 전년대비 순감소액 94,000,000원)으로 각 기재되어 있는데, 한편 (가) 피고인의 진술은, "피고인이 1995년도에 공소외 1 회사를 설립하여 폐기물처리업을 운영하면서 자본금과 회사의 영업이익 이외에 추가적인 투자금이 필요하여 그의 친인척들과 공소외 1 회사의 50% 주식을 보유한 구자헌으로부터 자금을 빌려서 이를 공소외 1 회사에 투입하였는데, 공인회계사인 오성철이 연 단위 또는 월 단위로 증빙서류를 수집하여 이를 근거로 일괄적으로 위 현금출납장 및 원장을 작성한 관계로 회계 기술상 가수금 반제 항목과 차용금 항목이 그 개별적인 부분에 있어서 일부 사실과 다르나 위 각 회계연도말의 가수금 잔액은 진실에 부합한다."는 취지이고, (나) 이광석의 진술은, "이광석은 1998. 7. 1.부터 공소외 1 회사의 경리부장으로 근무하였기 때문에 위 회계장부상의 1998. 이전의 가수금 내역에 관하여는 잘 알지 못하고, 다만 1998. 1.부터 1999. 말까지 가수금 내역에 관하여는 피고인으로부터 공소외 1 회사에 22,500,000원의 가수금이 입금된 것으로 알고 있을 뿐인데, 공인회계사가 작성한 공소외 1 회사의 현금출납장 및 원장에는 1998. 1.부터 같은 해 12.까지 합계 656,000,000원 정도의 가수금이 입금되고 합계 898,000,000원 정도의 가수금이 반제된 것으로, 1999년도에는 176,000,000원의 가수금이 입금되고 합계 270,000,000원의 가수금이 반제된 것으로 각 기재되어 있어 그 구체적인 내용이 사실에 부합하지 않으나, 이는 통상 공인회계사의 회계처리 관행에 따라 그와 같이 작성된 것으로 알고 있다."는 취지이며, (다) 오성철의 진술은 "자신은 공인회계사로서 1996.부터 공소외 1 회사의 법인세 신고자료인 현금출납장 및 원장 등의 기장 대리를 위임받았는데, 공소외 1 회사로부터 매월 증빙서철, 통장, 급여내역, 세금계산서 등을 제출받아 위 세무 장부를 작성함에 있어서 매일매일 회사의 자금흐름을 파악할 수는 없으므로, 회사의 일반비용지출(급여, 식사대금 등 성질상 당연히 현금지출이 예상되는 것)은 증빙서상 날짜에 현금지출이 된 것으로 가정하고, 세금계산서상의 매입, 매출(통상 외상거래가 예상되는 거래)은 외상거래가 이루어진 것으로 가정하여 장부에 기장을 하는 관계로 장부상의 기재와 현금잔고가 일치되지 않는 경우가 필연적으로 발생하고 따라서 이를 일치시키기 위하여 그 현금의 초과 또는 부족이 생기는 부분에 대하여는 임시로 대표이사 가수금의 입금 또는 반제로 처리하고, 그 후 회계연도 말에 실사를 하여 실제 계정상의 잔액과 장부상 계정 잔액을 일치시키다 보니 현금출납장 및 원장과 실제 회사의 현금흐름이 개별적으로는 일치하지 않을 수 있으나, 회계연도말에 가수금 계정의 총액은 실제와 일치하고 이와 같은 회계처리상의 시차는 회계관행상 흔히 있을 수 있다."는 취지이다.

If the Defendant entered in the account books and balance sheets, such as cash receipts and disbursements, and the president prepared and preserved by Nonindicted Company 1, it is clear that the Defendant had a claim to Nonindicted Company 1 in excess of the embezzlement funds stated in the above facts charged in the above facts charged in the form of a provisional collection. As such, the lower court recognized, based on the evidence cited above, that the items of provisional collection recorded in the above account books and balance sheets were fabricated by false evidence (including omission of revenues and excessive appropriation of expenses), and on the premise that the Defendant withdrawn the company’s money in the form of a half-yearly system, it seems that the Defendant attempted to obtain unlawful profits and recognized the establishment of the crime of embezzlement.

(3) However, according to the records, the defendant established a non-indicted 1 company on January 25, 1995 and operated general waste disposal business (interim waste disposal business) under the Wastes Control Act in the name of the real manager of the non-indicted 1 company, and invested a considerable amount of money in the non-indicted 1 company from before the date of its incorporation to the end of June 1995 in order to have conditions of permission for facilities, equipment, technical ability, etc. The defendant transferred 50 million won of shares of the non-indicted 1 company to the old 90 million won on April 8, 1996, and transferred 190 billion won of money to the non-indicted 1 company as a whole to the non-indicted 90 billion won of money, which was recorded on the balance sheet 90 billion won after the date of its incorporation and 90 billion won of money was recorded on the non-indicted 1's cash receipts and disbursements from the old 196 to June 29, 1996.

(4) The burden of proof for the criminal facts prosecuted in a criminal trial shall be borne by the prosecutor, and the conviction shall be based on the evidence of probative value, which makes the judge sure that the facts charged are true to the extent that there is no reasonable doubt. Therefore, if there is no such evidence, even if the defendant is suspected to be guilty, it shall be determined in the interests of the defendant. Thus, under the above circumstances, it is difficult to deem that the defendant made false items without the claim against the non-indicted 1, and based on this, it is proven that he withdrawn the funds of the non-indicted 1 in a half-yearly manner.

Therefore, the court below held that the defendant's withdrawal of money under the name of half of the provisional money and the personal use of money constitutes the crime of occupational embezzlement by pointing out that the defendant did not have paid provisional money to the non-indicted corporation 1 only with the statement of the above Lee Jong-seok and Masung iron, and that the defendant committed an unlawful act that affected the conclusion of the remaining judgment by misunderstanding the facts in violation of the rules of evidence.

3. As to the occupational embezzlement of Paragraph 4 of the first instance judgment

If the representative director of a corporation withdraws and uses the company's money, and fails to present evidentiary materials about the place of use, and fails to give reasonable explanation about the reason for withdrawal and the place of use, such money can be inferred to withdraw the company's money with the intent of unlawful acquisition and use it for personal use.

According to the evidence adopted by the court below, the court below acknowledged that the defendant used 148,430,00 won in total for personal use for 219 times from January 12, 1998 to December 18, 200 as a representative director of the non-indicted 1's office while the defendant kept cash from the construction company as the business partner as the representative director of the non-indicted 1's company for business purpose, and that he used 148,430,00 won for personal use without evidentiary documents. The above amount is used for a dump truck in the name of the defendant purchased from the non-indicted 1's funds for the non-indicted 1's company and the defendant did not have an intention of unlawful acquisition at the time of withdrawal. The defendant's assertion that some of it was used for the non-indicted 1's company without disclosing the use of the above amount, and that it was used as rent for the non-indicted 1's office without specifying the amount used by the defendant, and it is difficult to maintain the above intent of unlawful acquisition.

In light of the record on the premise of the above legal principles, in this case where there is no evidence to recognize the conclusion of the vehicle rental contract, the contents of the contract, the recovery of the money used by the non-indicted 1 for the non-indicted 1, and the details of the rent, etc., the decision of the court below that recognized the defendant's intent to acquire the above money used at his own discretion and maintained the first instance court that maintained the defendant's intention to constitute embezzlement, and there is no violation of law as shown in

4. On the violation of Article 5(5) of the Punishment of Tax Evaders Act in the first instance judgment

The grounds for objection to this part of the facts constituting an offense are not indicated in the appellate brief.

5. Therefore, among the judgment of the court of first instance, the part concerning the crime of occupational embezzlement as stated in paragraphs (1) through (3) of the judgment of the court of first instance is reversed. Since the above crimes and the remaining crimes were sentenced to a single punishment due to concurrent crimes under the former part of Article 37 of the Criminal Act, the whole conviction part of the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination.

Justices Lee Ji-dam (Presiding Justice)