[1] Whether the act of a person who administers the company's business had the company bear the joint and several liability for the company's obligation, and then arbitrarily withdraw it from the position of the person who keeps the company's funds, and use it for the repayment of the above individual obligation constitutes embezzlement separate from

[2] In a case where the representative director of Gap corporation and the defendants who are actual operators conspired to jointly issue promissory notes to pay personal debts to Eul, and Gap corporation's joint and several surety for the above debt, and paid the above debt to Eul, the case affirming the judgment below which acknowledged the crime of embezzlement against the defendants separate from the crime of breach of trust

[1] In light of the constituent differences between the crime of breach of trust and the crime of embezzlement, a person who administers another's business in relation to the company has violated his/her duty and caused the company to bear the joint and several liability for his/her own debt, and then voluntarily withdraw the company's funds as his/her own debt with the intent to repay his/her own debt, rather than the company's profit, and then use them for repayment of his/her personal debt constitutes a separate crime of embezzlement, not a separate act of crime of breach of trust, since it infringes on the new legal interests different from the crime of breach of trust due to the joint and several liability, and it is not different even if the funds withdrawn by the embezzlement were used for performing the joint and several liability obligation for which

[2] In a case where the representative director of Gap corporation and the defendants who are actual operators conspired to issue promissory notes jointly to pay their personal debts to Eul and jointly and severally guaranteed the above obligations, and voluntarily withdraw and pay them to Eul for the above obligations, the case affirming the judgment below that recognized the crime of embezzlement against the defendants on the ground that the defendants' act of using promissory notes in repayment of personal debts upon their own withdrawal as the case where the defendants did not own the company's profit in the position of the person who has the custody of the company Gap corporation's money but did not own the company's money to pay their debts to Eul and used the company's money to pay their debts to Eul constitutes a separate crime of embezzlement on the ground that the defendants violated the legal interests other than the crime of breach of trust against the company due to the payment of the promissory notes and the joint and several liability obligations,

[1] Articles 37, 355(1) and (2), and 356 of the Criminal Act / [2] Articles 30, 355(1) and (2), and 356 of the Criminal Act; Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

Defendant 1 and one other

Defendants

Law Firm Won et al.

Seoul High Court Decision 2010No1463, 2010No2754 decided December 23, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s defense counsel’s assertion

According to the judgment of the court below and the evidence duly examined by the court below, the court below is just in finding the defendant guilty of the facts charged as to the victim non-indicted 1 corporation of this case's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and occupational breach of trust against the victim non-indicted 2, and the fraud of the victim non-indicted 2 (excluding the non-indicted 2's acquittal portion). There is no

2. As to Defendant 2’s defense counsel’s assertion

The crime of breach of trust is established when a person who administers another’s business obtains pecuniary advantage or has a third party obtain such benefit by doing so, thereby causing damage to the principal. The crime of embezzlement is established when a person who keeps another’s property embezzled such property with the intent of unlawful acquisition. In the crime of embezzlement, “the intention of unlawful acquisition” refers to the intention of actual or legal disposition, such as in the case where the person’s property is in violation of his/her duty to pursue his/her own interest or a third party’s own property.

In light of the above differences between the crime of breach of trust and the crime of embezzlement, the crime of breach of trust established by a person who administers another's business in relation to the company by having the company perform the joint and several liability for the company's obligation, and then, the company's act of arbitrarily withdrawing the company's funds with the intent to repay its own obligation, not for the benefit of the company's owner, but for the case where the company's own funds are owned, and not for the act of infringing on the legal interests other than the crime of breach of trust and new legal interests arising from the joint and several liability burden, and thus constitutes a separate crime of embezzlement. It does not change even if the funds withdrawn by the embezzlement were used for performing the joint and several liability obligation owed by the company due to the preceding act of breach of trust.

In light of the above legal principles, the following circumstances revealed in the reasoning of the judgment below are as follows: (a) the Defendants conspired to pay the Defendant’s personal debt amounting to KRW 19 billion against Nonindicted Co. 3 by failing to perform their duties; (b) Defendant 1 was the representative director for the payment of the Defendants’ personal debt amounting to KRW 19 billion; and (c) Nonindicted Co. 4 Co. 4, who actually operated by Defendant 2, jointly issue a promissory note amounting to KRW 42.750 million; and (d) caused the risk of causing damage to Nonindicted Co. 4 by jointly conducting a joint and several surety; and (e) Nonindicted Co. 3 did not have any risk of causing damage to Nonindicted Co. 4’s debt amount and joint and several surety obligation; (c) Nonindicted Co. 4’s act of arbitrarily withdrawing the money in custody of Nonindicted Co. 4 for Nonindicted Co. 3 is not for the payment of the Defendant’s personal debt amount to Nonindicted Co. 3; and (d) the Defendants’ act of using the money at his own own own expense and its own own interest to constitute a new joint and joint and joint surety.

In the same purport, the court below is just to have rejected the assertion that the crime of embezzlement is not established because it constitutes an act of ex post facto punishment, and it does not err by misapprehending the legal principles on ex post facto punishment, as otherwise alleged in the

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)