The case denying the establishment of embezzlement on the ground that there is no intention to obtain it;

In the event that the defendant, who is the representative director of the transportation company and the president of the Mutual-Aid Association, has repaid the debt to the creditor who attached the vehicle belonging to the company with the funds of the Mutual-Aid Association which have collected money to share the amount of damages in the event of traffic accidents, it cannot be said that the defendant had the intention to obtain profits

Article 356 of the Criminal Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Kaddrid 5031 delivered on July 31, 1959, Counsel for plaintiff-appellant)

Defendant

Defendant and Prosecutor

Seoul Criminal Court of the first instance (74 High Court Decision 74Gohap375)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

One hundred and seventy days out of the detention days prior to the declaration of the original judgment shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for two years from the date of the final decision.

The sentence of a fine against the accused shall be suspended.

The charge of violation of the Punishment of Tax Evaders Act and embezzlement shall be acquitted.

The summary of the grounds for appeal by the defendant's defense counsel is as follows: first, although the defendant was in the form of a representative director of the non-indicted 1 corporation at issue in this case, the representative director could not perform his duties, the defendant cannot be held liable for criminal liability even if he failed to pay the traffic fees specified in the facts charged. Even if the defendant did not use the funds of the above company for its original purpose, it cannot be held liable for embezzlement unless it was used for the above company. However, the court below found the defendant guilty of all the facts charged against the defendant, and it is erroneous that the judgment of the court below erred in misunderstanding the facts and misunderstanding the legal principles of embezzlement, and thus, it cannot be reversed in this regard. Second, the judgment of the court below is improper because the sentencing of the court below is too too unreasonable. The summary of the grounds for appeal by the prosecutor is that the sentencing of the court below is too unreasonable.

First of all, as to the assertion of mistake of facts regarding the above traffic tax payment, the defendant stated the facts from December 1970 to April 30, 1973 that the representative director of the non-indicted 1 corporation and the non-indicted 1 corporation were the head of the above corporation's mutual aid association, or considering various evidences duly examined by the court below and the judgment of the defendant (in particular, the testimony of the non-indicted 2), the defendant is holding office as the representative director from December 1970 to August 1973, but the non-indicted 3 was unable to properly examine the above company's business from January 1, 1973 to April 30, 1973, and the defendant cannot be held liable for the above non-indicted 4 and 5's business affairs to the non-indicted 3 corporation's representative director, who was the non-indicted 3 corporation's representative director and the non-indicted 4 corporation's representative director, and he cannot be held responsible for the above non-indicted 3 corporation's business affairs.

Therefore, the court below erred by misapprehending the facts that the defendant was guilty on the whole amount of the traffic tax stated in the facts charged, and this affected the conclusion of the judgment. Therefore, the appeal by the defendant is with merit.

As to the embezzlement of the following facts charged, if it is clear that the defendant does not consume the funds of the above company by using the funds of the above company even if based on the facts charged itself, and it is combined with the legitimate evidence investigated by the court below and the court below, the defendant, a creditor of the above company, committed a provisional seizure of the vehicles belonging to the above company in order to receive a loan to the above company, so it can be acknowledged that the defendant first paid the company's debt by dividing the money stated in the facts charged into three times and paying it to the non-indicted 6, and if so, the defendant does not constitute the so-called embezzlement.

Nevertheless, the court below's finding the defendant guilty of embezzlement among the facts charged against the defendant is clear that the court below erred by misunderstanding the facts or by misapprehending the legal principles of embezzlement, which affected the conclusion of the judgment. Therefore, the appeal against this point is also justified.

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the members are again decided as follows after pleading.

guilty Part

The facts constituting a crime: The defendant is the representative director of the non-indicted 1 corporation and the person in the position of the president of the above company's Mutual-Aid Association from January 12, 1970. The defendant did not pay the total amount of KRW 6,070,443 because he did not pay it to the competent tax office within each payment period, even though he collected the traffic tax due to the operation of the vehicle belonging to the above company from January 1, 1973 to April 1973 through the borrower of the above company about two months before the payment period.

+------------------------- ＋ £«

| 표 | 징수한 통행세액 | 납부하지 아니한 세액 |

+------------------------- ＋ £«

| 1973.1. 분 | 1,362,986원 | 1,182,786원 |

| | | |

| 1973.2. 분 | 2,098,542원 | 2,048,542원 |

| | | |

| 1973.3. 분 | 1,955,360원 | 1,449,994원 |

| | | |

| 1973.4. 분 | 2,089,122원 | 1,389,121원 |

+------------------------- ＋ £«

| | | 합계 6,070,443원 |

+------------------------- ＋ £«

Summary of Evidence: 1. Statements consistent with the facts set forth in the original judgment and the trial court of the defendant;

2. Statement that corresponds to the facts indicated in the protocol of examination of the accused prepared by the public prosecutor;

3. Statement consistent with the facts stated in the judgment among the written accusation and supplementary documents of the head of the Seoul Cleanness Tax Office;

4. Statement that conforms to the facts set forth in the judgment in the process of receiving traffic tax for Nonindicted 7 prepared by the Seoul Cheongyang Tax Office.

5. Entry of confiscated taxes, public charges, and collection books, and deposit sheets, respectively;

The court below held that the defendant's decision falls under Article 8 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 9 (1) of the Punishment of Tax Evaders Act, and Article 8 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes should be imposed concurrently. However, the defendant's failure to pay the above passage tax was due to the reason that he would temporarily cover the above company's emergency purpose such as installment payment, etc., and then due to the fact that the defendant's failure to pay the above passage tax, together with additional tax, paid the unpaid passage tax in full, etc. Thus, the defendant shall be punished by imprisonment with prison labor for not more than one year and six months and fine for not more than 6,100,000 won and by applying Article 57 (1) 3 and 6 of the Criminal Act to the punishment of imprisonment with prison labor for not more than 170 days prior to the sentence under Article 57 of the Criminal Act, and the above sentence of imprisonment with prison labor for not more than 260 years shall be suspended.

Of the facts charged, a party member did not admit that he/she was guilty of the unpaid traffic tax in the attached Table 5,6,7,8 (referred to as the attached Table 5,97.9.9-12, 1973) on the grounds as stated in the reasoning of appeal in determining the grounds for appeal. However, since it constitutes one crime in combination with the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes,

Parts of innocence

The summary of the charge of violation of the Punishment of Tax Evaders Act against the defendant is that the defendant, as the representative director of the non-indicted 1 corporation, was unable to pay the above traffic tax to the head of the competent tax office as well as 1,849,701 won, and 1,738,936 won as of January 1, 1974 as of February 2, 1974 as of February 2, 1974, even though the defendant collected the above tax from the branch owner of the company through the above branch owner of the company, he did not pay the above tax within the payment period. Thus, as stated in the reasoning of the appeal above, the defendant could not pay the above traffic tax to the head of the competent tax office as of February 1, 1974, and the above charges were returned to the absence of proof of the crime. Thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

The summary of embezzlement in the facts charged is that the defendant was the Chairperson of the above company and the above Mutual-Aid Association Fund will manage the funds in the course of business despite the fact that the borrower was disbursed to share the amount of damages to be borne by the borrower in the event of a specific accident by the above company.

A) From November 26, 1973 to December of the same year, between the above borrower and the above borrower from the above borrower's office, 500,000 won of the Mutual Aid Association Fund, which was paid from the above borrower as compensation for damages from the above borrower's office to the above borrower's number-free taxi belonging to the Central cab Co., Ltd., was embezzled as the debt repayment of the above company unrelated to the said Mutual Aid Association on February 1974.

B) At the time, at a place, and at the same time, paragraph (a) of the preceding paragraph, KRW 320,00 of the Mutual Aid Association Fund 120,000,000,000, which was received from the borrower from Nonindicted 8, 9, or 6, a taxi affiliated with the said company, in the same manner and manner as described in the preceding paragraph, was used for the said company’s expense and the remaining amount of KRW 200,000,000,000,000 in the same manner and embezzled

C) At the same time and place as set forth in the preceding paragraph (a) and at the same time, the above company used 30,000 won out of 197,30,000 won of the Mutual Aid Association Fund 197,300, which was received by the above borrower from the above borrower as damages for losses inflicted on the above borrower 10, and embezzled by using the same method as the expenses for repayment of debt to the non-indicted 6 in the manner as set forth in the preceding paragraph (a) of the beginning of February 1974. The above facts charged are as follows: as the defendant used the above money for the above company for which the above member of the Mutual Aid Association was designated as the owner of the land by the owner, the above defendant used the money, and eventually, the above facts charged do not constitute a crime, and thus, it is pronounced not guilty pursuant to Article 32

It is so decided as per Disposition for the above reasons.

Judges Oral-ho (Presiding Judge)