[1] Requirements for admissibility of the defendant's written statement and the degree of proof

[2] The degree of proof of the act of embezzlement as an act of realizing the intent to obtain unlawful acquisition

[1] In the case of a written statement written by the defendant's written statement, since the person who prepared the document is a person who has made the statement at the same time, it is recognized as having been duly formed, and when the statement was made under particularly reliable circumstances pursuant to the proviso of Article 313 of the Criminal Procedure Act, it shall be admissible, and such special circumstance constitutes the requirement of admissibility of evidence, and the prosecutor must specifically assert and prove the existence thereof, but this is related to facts in litigation, so it is sufficient

[2] The prosecutor must prove that there was an act of embezzlement as an act of realizing an intent to acquire unlawful acquisition. The proof should be based on strict evidence with probative value that makes a judge not having any reasonable doubt, and if there is no such evidence, even if there is a doubt as to the defendant's guilt, it is inevitable to determine it as the defendant's interest. However, if the defendant did not properly explain his/her whereabouts or place of use even though he/she had no money in his/her custody on commission, it can be presumed that the defendant voluntarily consumed and embezzled it.

[1] Article 313 of the Criminal Procedure Act / [2] Article 355 (1) of the Criminal Act, Articles 307 and 308 of the Criminal Procedure Act

[2] Supreme Court Decision 94Do998 delivered on September 9, 1994 (Gong1994Ha, 2679) Supreme Court Decision 97Do1962 delivered on February 13, 1998 (Gong1998Sang, 823) Supreme Court Decision 99Do457 delivered on March 14, 200 (Gong200Sang, 105)

Defendant

Prosecutor

Law Firm International Law Firm, Attorneys Lee Won-chul et al.

Busan District Court Decision 99No3019 delivered on April 10, 2000

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

We examine the prosecutor's grounds of appeal.

1. The court below found the defendant guilty on the facts of this case that the defendant embezzled 20,973,00 won in total for personal consumption and embezzlement between February 3, 1998 and February 3, 1998, while taking charge of general affairs and accounting affairs at the victim Kim-hee's kindergarten located at the bottom of the Busan Sung-dong from February 26, 1997 to February 3, 198. The court below found the defendant not guilty on the grounds that the defendant's preparation of evidence, which correspond to the evidence, was made out of the above facts of this case on the ground that it was difficult to find the defendant not guilty on the ground that there was a lack of evidence to prove that there was no embezzlement without being placed the defendant in his book, and that there was no other charges of compelling the defendant to pay the remainder of the facts of this case to the public prosecutor's office, such as Kim Jong-hee's daily experience, and that there was no other evidence to prove that the remaining defendant was forced to pay it from each prosecutor's office.

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

A. As to the admissibility of evidence in each letter

In the case of a written statement written by a defendant's writing, when it is recognized that the document maker is simultaneously the person who prepared the document, and the statement was made under particularly reliable circumstances in accordance with the proviso of Article 313 of the Criminal Procedure Act, it shall be admissible, and such special circumstance constitutes the requirement of admissibility of evidence, and the prosecutor must specifically assert and prove the existence thereof, but this is related to facts in litigation, so it is sufficient to prove free without strict proof.

According to the records, the defendant graduated from a high school even before serving in the kindergarten for the management of the victim, and there is a record of being engaged in the accounting affairs for about five years. Each of the above records of this case is naturally recorded in the defendant's statement that is disadvantageous to the defendant. On February 4, 1998, at the above kindergarten room, the victim and the defendant as well as the four teachers of the kindergarten as well as the non-indicted Gunn Line confirmed the payment of the books prepared by the defendant and the educational expenses of the parents in the same place.

In addition to these circumstances, in light of the fact that the defendant tried to reach an agreement on the amount of embezzlement with the victim after preparing the defendant's age, social experience, and a letter recorded in the record, it is difficult to readily conclude that the above letter was prepared by force, such as Kim Jong-hee, before the defendant, who was a witness at the site at the time of the preparation of the above letter in his own pen, and ascertains the process of preparation.

Nevertheless, the court below erred in failing to exhaust all necessary deliberations as to the admissibility of evidence of a letter of commitment that the court below held that the above letter of commitment was made by force, such as Kim-hee, without examining the preparation process of the above letter of commitment. The grounds for appeal pointing this out are with merit.

B. As to the violation of the rules of evidence

A prosecutor must prove that there was an act of embezzlement as an act of realizing an intent to acquire unlawful acquisition. The evidence should be based on strict evidence with probative value, which makes a judge not more reasonable doubt, and if there is no such evidence, even if there is a doubt of guilt against the defendant, the interest of the defendant should be determined. However, if the defendant does not properly explain his/her whereabouts or place of use even though he/she had no money in his/her custody, it can be presumed that the defendant voluntarily consumed and embezzled it (see Supreme Court Decision 94Do998, Sept. 9, 194).

According to the records, while recognizing the fact that the custody of educational expenses, etc. recorded in the facts charged was received from the parents of the kindergarten students, the defendant used the above money as necessary expenses of the kindergarten or claimed that the above money was sent to the victim in cash. On the other hand, even according to the daily income set by the defendant, the defendant deposited all the educational expenses and the beneficiary charges received from the parents of the kindergarten students into the passbook of the victim. On the other hand, even if the defendant was based on daily income set up in the daily income set up by the defendant, the defendant deposited the funds into the passbook of the victim. The victim was directly paid to the victim in cash only when the victim reported extracurricular lessons, and the defendant did not have any statement about the details of the use or the balance, and there is no receipt related thereto. On the contrary, the defendant paid the kindergarten's expenses to the reserve fund of KRW 100,000,000 which was received by the victim once every several days from the victim.

If the facts are different, the funds used in the necessary expenses of the kindergarten claimed by the defendant are not the educational expenses received by the defendant, but the funds used in the necessary expenses of the defendant should be deemed appropriated as the reserve funds received by the victim. Since there is no evidence to prove that the above funds have been used due to the necessary expenses claimed by the defendant, there is no evidence to prove that the above funds have been used, the defendant's assertion about the location or location of the above funds in custody cannot be accepted, and the credibility of the Kim-hee's prosecutor's office and prosecutor's statement in the court cannot be easily rejected. Accordingly, in this case where the defendant did not properly explain his whereabouts or location even if the funds such as educational expenses he had been entrusted, it is sufficient to presume that the defendant voluntarily consumed and embezzled them.

Nevertheless, the court below rejected the statements of the victim Kim-hee and judged that it is not sufficient to recognize the facts charged only with the books, such as the remaining daily revenue ledger, merely on the grounds as stated in its reasoning, is an unlawful act that affected the conclusion of the judgment by misunderstanding the facts against the rules of evidence. The grounds of appeal pointing this out are with merit.

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

Justices Seo-sung (Presiding Justice)