2017Do3414 Occupational embezzlement

A

Defendant

Law Firm B

Attorney C, D, E, F, Q, AR

Seoul Central District Court Decision 2016No3018 Decided February 9, 2017

July 18, 2017:

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

The grounds of appeal are examined.

1. In a criminal trial, there is no room for a judge to make a reasonable doubt about the criminal facts;

The prosecutor must be based on strict evidence of probative value, which leads to the degree of conviction of B, and thus the prosecutor must do so.

If the certification does not reach the extent that it would lead to such conviction, the State of the defendant

Even if there are suspicions of guilt, such as the head of the Gu/U.S. or non-competence or non-competence;

The interest of the Defendant ought to be determined (see Supreme Court Decision 2015Do119, May 14, 2015).

2. The summary of the facts charged in the instant case is that the Defendant was a director in charge of overseas affairs of the victim company.

The injured company was engaged in the duty of managing the sales of scrap metal while taking overall charge of the steel business;

In the course of borrowing business funds, the defendant provided a claim for the return of deposit money for lease as security.

Part of the sales proceeds without notifying the victim company of the fact after the sale of scrap metal.

Children of US$ 5500 on February 20, 2012, who will be used for personal use.

Using US$ 80,000 on March 2, 2012 for expenses incurred in studying, etc., and children's expenses incurred in studying.

Using it as a common use, embezzlement of USD 135,00 for the funds of the victim company.

On this basis, the court below held that the victim company's 1,00 tons of scrap metal in V Co., Ltd. (hereinafter "V")

The purport that the defendant was determined to receive the sales proceeds of the said scrap metal from V;

The respective contracts of this case as of January 18, 2012 and the letter of payment agreement for the transfer and takeover of goods and the letter of payment for the sale price of goods (hereinafter referred to as "

in writing, but this does not recover the claim for the return of the deposit provided as security by the defendant.

In preparation for such cases, it is determined that a contract is made to receive 1,00 tons of scrap metal as security for transfer in preparation for such case;

The defendant's claim for the return of the deposit has not been confirmed yet; and

A. The Defendant guilty of the instant facts charged on the grounds that the act of disposal constitutes embezzlement

The judgment of the first instance court, which judged as above, was maintained.

3. However, the lower court’s determination is difficult to accept for the following reasons.

(1) The Defendant, on behalf of the victim, has provided the victim with a claim to return the deposit on behalf of the victim.

and as such, each of the contracts of this case was drawn up with the title of compensation, and the filing of such agreement by the victim

The sales proceeds equivalent to 1,00 tons are asserted to the effect that they are entitled to be used at will.

The charges are denied.

(2) Each of the instant contracts is executed between the victim company and V with respect to the transfer of goods and V.

As a written agreement for the payment of the sales price of goods made between the defendant, the following are included:

1. A victim company: 1,00 tons in scrap metal in V in return for services provided by V to the victim company.

the transfer should be made by March 31, 2012 to the place designated by V.

2. V receives delivery from the injured company of 1,00 tons of scrap metal which is the price for the service, and then sells it.

sales proceeds (including value-added tax) generated by sale shall be avoided on the day on which V receives sales proceeds;

the account designated by the person. The defendant shall pay from V all of his powers on the sale.

may take place with delegation.

(3) The amount to be paid by V to the defendant shall be taxes and taxes accruing from the payment of sales proceeds.

An amount obtained by subtracting all expenses (transport expenses, etc.), and where a defendant requests the issuance of a tax invoice, he/she shall do so.

tax shall be borne by each party to the tax.

④ Each contract of this case takes effect upon conclusion of the contract.

(3) As seen above, if the injured company transfers 1,00 tons of scrap metal in return for the service in V, V:

(1) have sold directly or by delegation to the defendant, and then the defendant shall have 1,00 tons or more of scrap metal.

the fact that the sale proceeds are to be received is clearly disclosed in the text of each contract of this case.

C. Nevertheless, until the recovery of the claim for the return of the deposit is confirmed, the victim.

Sales proceeds equivalent to 1,00 tons of scrap metal of a company are still owned by the victim company, and the defendant is still owned by the victim company.

A victim may be directly admitted as direct evidence of whether the sales proceeds are not entitled to be used.

The corporation's representative director I made a statement, and the facts charged in this case are recognized by such statement.

In order to exclude the reasonable doubt, there should be credibility to the extent of exclusion.

However, in light of the following circumstances known by the record, I’s statement

such terms are difficult to believe.

1. I provides each of the contracts of this case as security by the defendant with a claim for the return of deposit for lease.

In the process, the use to show his wife is required to be prepared in a formal manner; and

Merely prepared, and the fifth representative director is not involved in the preparation process.

The objective evidence supporting the statement was not submitted.

② On the other hand, the Defendant for the smooth recovery of the right to refund the deposit in the court of first instance.

I advise that the person should enter into a contract with the same content as each of the instant contracts, and that person

I directly draw up its content on behalf of the defendant. A corporate body of the victim company directly from the defendant I

A. At the time, I was affixed a seal, and at that time I refused to affix a half or a half of the seals.

was made by the statement of the I, and there is no objective circumstance to suspect that it is false, in addition to the statement of the I.

does not do so.

③ In addition, each contract of this case is "the purpose of the contract, terms and conditions of payment, rescission/ termination, dispute resolution, etc."

written in detail by detailed matters, which is merely formally drawn up;

It is difficult to see it.

4. Furthermore, in the first instance court, I lectures the defendant to recover the claim for the refund of the deposit.

In regard to the question of whether or not to require a claim, the sales proceeds before the defendant's demand is made.

The defendant made a statement to the effect that he/she first promised to do so upon entry, which is the first day.

There is room to regard each of the instant contracts as a statement consistent with the details of the preparation thereof.

(4) The Defendant provided a claim for the return of deposit on a deposit basis in the form of transfer for security.

It seems that the company knew that the claim for the return of the deposit may be returned upon the repayment of the loan.

may be deemed to be appropriate.

However, even if the defendant's claim for the return of the deposit is likely to be refunded, such return may be made.

When and when it is impossible to know at any time and when funds are needed by the defendant, he shall prepare for the funds before such time.

the victim company as compensation for the provision of security by giving up the claim for the return of the deposit;

Since the defendant may agree to receive money in advance, the defendant may have the right to return the deposit.

It is agreed to receive 1,00 tons of scrap metal as security for transfer in preparation for cases where it is not possible to recover.

It cannot be readily determined. Defendant also needs funds, such as expenses incurred in studying in the Republic of Korea at an investigative agency for children.

The claim for the refund of the deposit is waived or the amount equivalent to the claim for the refund of the deposit is repaid.

I made a statement.

(5) Under each of the contracts of this case, the injured company 1,00 tons of scrap metal for services in V by the injured company

Transfer, and after V directly or by delegation to the Defendant, the Defendant has sold the sales proceeds.

If such receipt was made, it is doubtful whether the sales proceeds can be viewed as the ownership of the victim company.

(6) Nevertheless, the lower court, on the sole basis of the circumstances indicated in its reasoning, held by the Defendant guilty.

The lower court determined that the Defendant embezzled funds owned by the victim company as stated in the record. Such lower court’s determination

In doing so, exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules or embezzlement.

In so determining, the lower court erred by misapprehending the legal doctrine regarding 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.

We conclude that it is so decided as per Disposition by the assent of all participating Justices.

Supreme Court Decision 200

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Park Sang-ok