[1] The case where it can be inferred that the money kept in the crime of occupational embezzlement was embezzled with the intent of unlawful acquisition

[2] In a case where the purpose of the money in custody is determined abstractly, the person who has the burden of proving the intent of unlawful acquisition by the custodian (=public prosecutor) and the method of proving it

[3] Requirements for recognizing that the head of a local government prior to the enactment of the "Regulations on the Execution of Business Promotion Expenses by Local Governments" has embezzled the so-called business promotion expenses with the intent of unlawful acquisition

[4] The case affirming the judgment below holding that it is difficult to view that the charges that the defendant, a local government head of local government, embezzled business promotion expenses whose location is unclear in collusion with his head of his office of secretary, to the extent that there is no reasonable doubt

[1] Articles 355(1) and 356 of the Criminal Act, Articles 307 and 308 of the Criminal Procedure Act / [2] Articles 355(1) and 356 of the Criminal Act, Articles 307 and 308 of the Criminal Procedure Act / [3] Articles 355(1) and 356 of the Criminal Act, Articles 307 and 308 of the Criminal Procedure Act / [4] Articles 355(1) and 356 of the Criminal Act, Articles 307 and 308 of the Criminal Procedure Act

[1] [2] [3] Supreme Court Decision 2007Do5899 Decided June 24, 2010 (Gong2010Ha, 1503) / [1] Supreme Court Decision 99Do457 Decided March 14, 200 (Gong2000Sang, 105) Supreme Court Decision 2006Do3272 Decided August 24, 2006, Supreme Court Decision 2009Do495 Decided April 23, 2009, Supreme Court Decision 2008Do8356 Decided February 25, 2010

Defendant

Defendant and Prosecutor

Law Firm Head of Law Firm, Attorney Jeon Do-young

Gwangju District Court Decision 2008No337 Decided July 4, 2008

All appeals are dismissed.

The grounds of appeal are examined.

1. In the crime of occupational embezzlement, the prosecutor must prove that there is an act of embezzlement as an act of realizing the intent of unlawful acquisition. The evidence must be proved by strict evidence with probative value that leads to a judge to a reasonable doubt. If there is no such evidence, even if there is doubt of guilt against the defendant (see Supreme Court Decision 94Do998, Sept. 9, 1994). Here, the intent of unlawful acquisition refers to the intention of disposal of another person's property, which is in violation of his/her duties for the purpose of pursuing his/her own or a third party's interest, as in fact or in law, is the owner of another person's property, which is kept in custody for the purpose of realizing the intent of unlawful acquisition. If the defendant denies it, the facts constituting such subjective element are attributable to the intention of internal deliberation and the fact that the defendant was in custody, due to indirect facts or circumstantial evidence relevant to the nature of things, and it is inevitable to prove that the defendant's personal property was either short of the defendant's whereabouts or other material used for the defendant's personal property.

However, as seen above, since the burden of proof on the intent of unlawful acquisition is only imposed on the prosecutor, even if the specific purpose of use, place, time of use, etc. is specified abstractly, the custodian is granted the right to use the money with a wide range of discretion in relation to the specific purpose of use, place, time of use, etc., and if it is of the nature for which post-report or submission of evidentiary materials is not required after the disbursement, the custodian is not obliged to use the money, and explain the location or place of use, or to present evidentiary materials, without permission, on the ground that the custodian has failed to without permission, and regardless of the original purpose of use, the prosecutor bears the burden of proof that the money has been disbursed for personal interests or has spent it excessively beyond a reasonable scope.

On the other hand, business promotion expenses in a local government refer to expenses incurred in performing duties of the head of the local government and expenses incurred in performing duties of the head of the local government, implementing policies, and facilitating investment projects (Article 2 subparag. 1 of the Regulations on the Execution of Business Promotion Expenses of the local government), and Article 144(2) of the Enforcement Decree of the Local Finance Act of March 11, 2008, the Ministry of the Interior and Safety comprehensively provided that business promotion expenses in the guidelines for budget compilation should be disbursed in relation to public affairs, such as the operation of institutions or policies, etc. before the enactment of the "Rules on the Execution of Business Promotion Expenses of the Local Government" under Article 144(2)5 of the Enforcement Decree of the Local Finance Act. Furthermore, there are many cases where it is difficult for the head of the local government to receive and execute funds after taking internal settlement procedures in advance because it is difficult to clarify the timing and scope of the execution, and it is difficult for the head of the local government to obtain and execute them after using them due to cash transactions, etc., from the head of the local government without reasonable evidence or the scope of the public affairs.

2. We examine the instant case in accordance with these legal principles.

A. As to the Defendant’s ground of appeal

In light of the circumstances acknowledged by the evidence adopted by the court below, it is just in accordance with the above legal principles to recognize that the defendant received a total of 6850,000 won from 18 times to 18 times in the name of the defendant from the account that the non-indicted 1 directed the non-indicted 1, the chief secretary of the non-indicted 1, and kept and managed the abnormally commercialized business promotion expenses by pretending the payment of meal expenses, etc. from September 30, 2003 to April 21, 2006, and embezzled it for personal purposes, such as the telephone fee of the defendant or his family member, and otherwise, it is not erroneous in the misapprehension of legal principles as to the intent of unlawful acquisition and the method of recognizing the embezzlement

B. As to the Prosecutor’s Grounds of Appeal

1) First, examining the reasoning of the lower judgment on the portion of KRW 2,437,600, which was paid as accommodation costs from the abnormally commercialized business promotion expenses, in light of the records, the lower court’s determination that the Defendant cannot be deemed to have embezzled it with the intent of unlawful acquisition, on the ground that there is room to deem that it was used directly or indirectly for the business of directly or indirectly related to the former military policy implementation projects, etc. in light of the user status or the circumstances in which the said container was reflected in the said container, etc. on the grounds as stated in its reasoning, on the grounds that there is room for deeming that it was used directly or indirectly for the business of directly or indirectly related to the former military policy implementation projects, etc. or the former military policy implementation projects, etc.

2) Next, examining the reasoning of the lower judgment in light of the records and records on the part of KRW 486,779,30, which was executed at the expense of abnormally commercialized business promotion expenses as above, but whose place of use is unclear, the lower court determined that the facts charged that the Defendant embezzled this part of the money with the intention of unlawful acquisition are not proven to the extent that there is no reasonable doubt as to the facts charged, in collusion with Nonindicted 2 and 1, the chief secretary, and there is no error in the misapprehension of legal principles as to the method of recognizing illegal acquisition and embezzlement or the burden of proof, etc., as stated in its reasoning.

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

Justices Jeon Soo-ahn (Presiding Justice)