Defendant

Defendant and Prosecutor

Last-young, Kim Mau (Court of Prosecution), Park Jong-hee, Park Jong-hee, De-Finance (Court of Public Trial)

East Western Law Firm, Attorneys Kim Jong-ju

1. Changwon District Court Decision 2010Da3078 decided June 3, 2011; / [2] Changwon District Court Decision 201Da2541 decided June 8, 2012

The guilty part of the judgment of the court below and the judgment of the court of second instance shall be reversed.

A defendant shall be punished by imprisonment for not more than ten months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Of the facts charged of this case, the occupational embezzlement of January 2, 2006 and January 19, 2006 shall be acquitted, respectively.

The prosecutor's appeal on the acquittal portion of the judgment of the court below is dismissed.

1. Summary of grounds for appeal;

A. Prosecutor (the second judgment of the court below)

1) misunderstanding of facts and misapprehension of legal principles (not guilty part)

The court below found the defendant not guilty on the ground that there was no proof of each charge and there was no objective ground that the defendant made a deposit prior to the payment of the provisional money or repaid the borrowed money from male machinery, with regard to the aggregate of KRW 13 million and KRW 5 million as stated in Nos. 1, 2, and 3 of the attached Table No. 2 of the judgment of the court below. The court below erred by misapprehending the legal principles and adversely affecting the conclusion of the judgment.

2) Unreasonable sentencing

The sentencing of the second instance court (ten months of imprisonment, two years of suspended execution) is too unhued and unfair.

B. Defendant (Defendants Nos. 1 and 2)

1) misunderstanding of facts in the judgment of the first instance

In the case of KRW 5-7,349,90, the sum of KRW 3,349,90 in [Attachment Table 1] 5-7] in the judgment of the court below, if Nonindicted 2 of the management department pointed out in advance that Nonindicted 3’s payment should not be made for July, 8, and September 2008, the Defendant would not transfer each of the above money from the beginning to Nonindicted 3’s account. In the case of KRW 8-12,151,90 in the aggregate of KRW 8-12,90 in the above list of crimes, the Defendant received a scholarship for the school expenses of Nonindicted 3, who is the major shareholder and representative director of the victim Nonindicted 4 (hereinafter “victim”), who is his child, as the representative director. Therefore, there was no intention to obtain unlawful acquisition of each of the above money.

Nevertheless, the judgment of the court of first instance which found the defendant guilty of this part of the charges is erroneous by misunderstanding the facts and affecting the conclusion of the judgment.

2) misunderstanding of facts and misapprehension of legal principles in the judgment of the second instance

① The Defendant returned the Defendant’s claim against the Defendant from the victimized company. Even if the embezzlement of this part is recognized, the amount of embezzlement should be recognized only to the extent of KRW 4,651,408, which is the remainder after deducting the provisional payment from the amount mentioned above. ② In the case of the money listed in 3-7 No. 3-7 of the same Table, the Defendant prepared and borrowed a monetary lending agreement with the victimized company. In particular, the Defendant paid the Defendant the amount of KRW 60 million, which is the sum No. 5 and 60,000,000, which is the sum No. 60,000,000, which is the sum No. 1 and No. 2 of the attached Table No. 1 of the judgment of the court below. 300,000,000 from the borrowing date. ③ Meanwhile, the Defendant operated the victimized Company as the de facto one before the date of the instant loan, in light of all the circumstances that the Defendant recovered personal funds invested in the victimized Company around the time of the instant case.

Nevertheless, the second instance judgment convicting of this part of the occupational embezzlement is erroneous by misapprehending the facts, and by misapprehending the legal principles as to the intention of unlawful acquisition of occupational embezzlement and prohibition of prosecution in the application for adjudication, which affected the conclusion of the judgment.

3) The judgment of the court below on the first and second grounds of unfair sentencing

The sentencing of the first and second court (the first court below's judgment: the fine of 2 million won, the second court's judgment: the imprisonment of 10 million won, the suspended sentence of 2 years) is too unreasonable.

2. Determination

(a) Scope of the court's adjudication

The court below found the defendant guilty as to embezzlement of KRW 9,327,46 on seven occasions, such as the No. 1-4, 13, 14, and 15 in the annexed list of crimes in the judgment of the court below, and found the defendant guilty as to the remaining occupational embezzlement related to each inclusive crime. The defendant appealed only the guilty part, and the prosecutor did not appeal. The non-guilty part in the judgment of the court of first instance is also subject to the judgment of the court below, but the part has already been separated from the object of attack defense between the parties, and is not subject to the judgment of the court of first instance. Thus, the judgment of the court below cannot be further judged about the acquittal part (see Supreme Court Decision 90Do2820, Mar. 12, 1991). Accordingly, this part of the judgment of the court of first instance should be subject to the conclusion of the judgment of the court of first instance, while the court of first instance declares the defendants guilty as to the crime of comprehensive embezzlement in the judgment of the court of first instance as follows.

B. Judgment on the prosecutor's assertion of mistake of facts and misapprehension of legal principles (the part of acquittal in the judgment of the second instance)

The court below found the Defendant not guilty of each of the charges on the grounds that the part of the funds listed in [Attachment 2] 1-4] No. 1-4 in the summary of the facts charged under the title of "not guilty portion" and the dissenting facts admitted by evidence was stated in the judgment of the court below, and the part of the funds listed in [Attachment 2] No. 1-4] as stated in the judgment of the court below is merely a collection of the funds used in advance for operating funds, or a part of the funds was received. In the case of the funds listed in [Attachment 2] 5] No. 5 of the same Table, it is insufficient to deem

In light of the records, a thorough examination of the evidence of this case is conducted. The second court's decision that the court below acquitted each of the occupational embezzlement listed in the sight table (2) on the basis of such evidence judgment is just and acceptable. The second court's decision did not err by misapprehending the facts or by misapprehending the legal principles as pointed out by the prosecutor, which affected the conclusion of the judgment. Thus, the prosecutor's allegation of mistake of facts and by misapprehending the legal principles is without merit.

C. Judgment of the court below of first instance and the judgment of the court of second instance on the guilty portion

Before determining the remaining grounds for appeal by the Defendant and the Prosecutor, the first and second court sentenced the Defendant to a fine of KRW 2,00,000,000,000,000,0000 for the former and two years, respectively, after completing separate hearings by the Changwon District Court Decision 201Da3078 decided June 3, 201 and by the Changwon District Court Decision 201Da2541 decided June 8, 201, respectively, and sentenced the Defendant to a fine of KRW 2,00,00,000,000 for the latter, and the Defendant was sentenced to a fine of KRW 1,20,00,000,000 for the latter, and the Prosecutor filed each appeal against the second and this Court decided to consolidate the above two appeals cases.

However, since the first and second court's offenses against the defendant are concurrent crimes under the former part of Article 37 of the Criminal Act, they should be sentenced to a single sentence within the scope of punishment aggravated by concurrent crimes pursuant to Article 38 (1) of the Criminal Act, and in this respect, the first and second court's judgment against the defendant cannot escape from reversal.

However, the defendant's assertion of misunderstanding of facts and misunderstanding of legal principles is still subject to the judgment of this court, which will be examined below.

D. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

1) As to the assertion of mistake of facts in the judgment of the first instance

A) In the first instance court, the defendant and his defense counsel have the same arguments as the reasons for appeal in this part, and the first instance court stated in detail the summary of the argument and related legal principles under the title of "determination on the defendant and his defense counsel's assertion" in the judgment of the court of first instance, and rejected the above argument on the ground that the defendant's act of embezzlement was committed immediately after the remittance of salary for July, 8, and September 2008 and the defendant's intention of unlawful acquisition is recognized regardless of whether the subsequent return was returned. In comparison with the above judgment, the first instance court's judgment is just and acceptable, and there is no error of law that affected the conclusion of the judgment by misunderstanding the facts.

나) 한편 피고인은 당심에 이르러, 2008. 10.부터 2009. 1. 21.까지 5회에 걸쳐 공소외 3의 계좌로 입금된 급여 합계 6,151,900원의 경우, 피고인이 피해회사의 대표이사로서 그 자녀인 공소외 3의 학자금을 지원받은 것이라고도 주장하나, ㉠ 이 사건 당시 피해회사에 위 주장과 같은 학자금지원제도가 있었다거나 그 무렵 공소외 3이 위 금원 상당의 학자금을 지원받을 자격이 되었다고 볼 근거도 전혀 없을 뿐만 아니라, ㉡ 공소외 3 스스로도 2008년 및 2009년에는 학교에 다니지 않았고, 2011년도에 복학하였다고 진술한 점(제1 원심 공판기록 217면), ㉢ 피고인도 제1 원심 법정까지는 이 무렵 공소외 3이 피해회사의 직원으로 정식근무하고 있어 그 급여를 지급한 것이라고만 주장하였고 위와 같은 학자금 지원 주장은 전혀 하지 아니하였음에도, 당심에 이르러 비로소 이러한 주장을 하는 점, ㉣ 피고인이 제출한 공소외 3의 계좌거래내역(제1 원심 공판기록 193~196면)에 의하더라도, 위 금원은 이 무렵 공소외 3의 생활비 또는 유흥비 등 용돈으로 사용되었을 뿐인 점 등에 비추어 보면, 피고인의 위 주장은 이유 없다.

C) Therefore, it is just that the first instance court found the Defendant guilty of this part of the facts charged, and the Defendant’s allegation of mistake of facts against the first instance judgment is without merit

2) As to the misunderstanding of facts and misapprehension of legal principles in the judgment of the second instance

A) Attached Table 1 and 2: (1) Nos. 1 and 2

According to the records, the defendant had a claim for provisional payments of KRW 30,425,172 against the defendant as of December 31, 2005. However, on December 31, 2006, it is recognized that the defendant transferred the claim for provisional payments of KRW 101,00,000 to the account under the name of the defendant (No. 35,137,139 of the trial records of the second instance court), since the defendant transferred the claim for provisional payments from the account of the damaged company to the account under the name of the defendant, the damaged company was liable for the provisional payments of KRW 30,425,172 against the defendant as of December 31, 2005. However, on December 31, 2006, the defendant's assertion that the defendant transferred KRW 5,00,000 from the account of the damaged company to the account under the name of the defendant was not guilty as of January 2, 2006 and there is no evidence that the defendant transferred the above portion as evidence No. 1271,24.

B) The remainder

(1) In the crime of embezzlement, the expression of intent of unlawful acquisition refers to the intent to dispose of another person's property in violation of his/her duties for the purpose of pursuing the benefit of himself/herself or a third party, such as his/her own property, and there is no intention to return, compensate, or preserve it later (see Supreme Court Decision 2005Do3045, Aug. 19, 2005, etc.). Further, even if the representative director of a company withdraws and uses large amount of company funds for purposes other than expenditure for the company under the pretext of provisional payment, etc., and it is nothing more than that of lending and disposal of funds for the company's private purpose by taking advantage of the status of the representative director, etc., and it cannot be deemed that embezzlement constitutes a crime of embezzlement, as it is nothing more than that of arbitrarily lending and disposal of funds for the company's private purpose (see Supreme Court Decision 2003Do1355, Apr. 27, 2006, etc.).

(2) The court below and the second instance court asserted that the defendant prepared four copies of the monetary lending agreement which were lawfully adopted and investigated as follows: ① on January 21, 2006, February 15, 2006, February 16, 2006, and February 16, 2006, four copies of the monetary lending agreement on the amount corresponding to 3-7 No. 4 of the attached Table 2 of the judgment of the court below were presented through four times on February 17, 2006, and the above monetary lending agreement did not state the due date (2-55 pages of the investigation record of the second instance court). ② The defendant did not prepare the monetary lending agreement after 2007, ② The defendant did not err in the misapprehension of legal principles as to the illegal lending agreement, which affected the defendant's right to dispose of and borrow money, and thus, the defendant did not have any error in the misapprehension of legal principles as to the remaining amount of money lending and lending as stated in the court below's judgment.

(3) Meanwhile, the defendant's defense counsel asserts that this part of the indictment should be dismissed since the decision to dismiss the application for adjudication by non-indicted 1 (the non-indicted 1) which is the defendant's complaint has become final and conclusive. However, the above defense counsel also asserted the same grounds for appeal in the second instance court's judgment, and the second instance court rejected the above assertion on the ground that the facts constituting an offense stated in the judgment of the court below in the second instance are not included in the subject of the decision to dismiss the above application for adjudication. In comparison with the records, the above judgment is just and acceptable, and there is no error of law by misunderstanding the legal principles as to the prohibition of prosecution of the application for adjudication, which affected the conclusion of the judgment.

(4) Therefore, the defendant's assertion of mistake of facts and misapprehension of legal principles as to the remaining occupational embezzlement except for the parts as set forth in [Attachment 1] 1 and 2 attached hereto is without merit.

3. Conclusion

Therefore, the prosecutor's appeal as to the acquittal portion of the judgment of the second instance is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act on the grounds that the prosecutor's appeal as to the acquittal portion of the judgment of the second instance is without merit, and all of the judgment of the first and the judgment of the second instance, which conviction part of the judgment of the first and the judgment of the second court, are reversed, and the appeal as to the defendant's second judgment is with merit within the scope of the above recognition, and therefore, the judgment of the first and the judgment of the second court in accordance with Article 364

The summary of the facts constituting the offense acknowledged by this court and the evidence related thereto is as follows: (a) Nos. 2-7 of the judgment of the court below in the second instance. (b) The Defendant: (c) “On January 21, 2006, the Defendant used the funds of Nonindicted Company 4 to the ○ Bank Account (Account Number 1 omitted) in the name of Nonindicted Company 4; (d) on January 21, 2006, the representative director transferred KRW 5,000,000 to the ○ Bank Account (Account Number 2 omitted) in the name of the Defendant, and consumed them for the personal purpose of the Defendant. The Defendant, from that time until October 15, 2009, except that the Defendant embezzled the total of KRW 19,50,000 in total over 26 times from that time until October 15, 2009, as stated in the table No. 3-28, thereby citing Article 369 of the Criminal Procedure Act as it is.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 356 and 355 (1) (including the part of the facts constituting the crime in the judgment of the court below) of each Criminal Code, and each choice of imprisonment

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

On the other hand, it cannot be deemed that the defendant denies each of the crimes of this case until the trial. The defendant's mistake does not seem to be seriously against his own wrong act, such as denying the defendant's criminal act of this case, and the defendant's representative director, which is not good for a long time, such as using funds of the damaged company as personal funds. The amount embezzled for about three years as a result of each of the crimes of this case amounts to about 29 billion won in total, and the place of its use was not revealed. However, it is recognized that the defendant was the first offender and most of the embezzled funds were returned to the damaged company after the crime of this case, and all of the sentencing conditions specified in the records and arguments of this case, such as the age, character and conduct, environment, motive, means and result of each of the crimes of this case, and the circumstances after the crime, etc., shall be determined as the sentence as per the disposition.

1. Summary of the facts charged

On January 2, 2006, while the Defendant kept the funds of Nonindicted Company 4 in his business on the account of ○ Bank (Account No. 1 omitted) in the name of Nonindicted Company 4, the Defendant transferred KRW 5,000,000 as the provisional payment by the representative director on January 2, 2006 to the account of ○ Bank (Account No. 2 omitted) in the name of the Defendant, and consumed it for the personal purpose of the Defendant.

From that time until January 19, 2006, the Defendant embezzled total of KRW 35,00,000 on two occasions, as shown in [Attachment Table 1-2] Nos. 1 to 2.

2. Determination

As examined in the above 2. D. (2) A, each part of the facts charged falls under a case where there is no proof of the crime, and thus, a not guilty verdict is rendered under the latter part of Article 325 of the Criminal Procedure Act.

[Attachment]

Judges Lee Dong-chul (Presiding Judge)