[1] The meaning of "the intention of unlawful acquisition" in the crime of occupational embezzlement

[2] The meaning of "an act in violation of one's duty" in breach of trust

[3] Type of attribution of church properties (=general ownership)

[4] The case holding that the use of a church fund by a church pastor in order to commemorate an individual corruption or to handle an illegal act constitutes an act of violating its duties, and it cannot be said that a legitimate resolution has been obtained from the members of the church on the use of public fund, and it constitutes an act of embezzlement or breach of trust

[5] The starting point of the statute of limitations for a single comprehensive crime

[1] Articles 355(1) and 356 of the Criminal Act / [2] Article 355(2) of the Criminal Act / [3] Articles 275 and 276 of the Civil Act / [4] Articles 355(1) and (2), and 356 of the Criminal Act / [5] Article 252(1) of the Criminal Procedure Act

[1] Supreme Court Decision 2001Do5439 decided Feb. 5, 2002 (Gong2002Sang, 709) / [2] Supreme Court Decision 2002Do758 decided Jan. 10, 2003 (Gong2003Sang, 660) / [3] Supreme Court Decision 99Du5566 decided Jun. 15, 2001 (Gong2001Ha, 1621) / [5] Supreme Court Decision 2002Do2939 decided Oct. 11, 2002 (Gong200Ha, 2778)

Defendant

Defendant

Law Firm Chungcheong, Attorney Park Yong-ok et al.

Seoul High Court Decision 2003No3175 delivered on January 18, 2005

The appeal is dismissed.

1. As to the assertion that the use of the defendant's church money conforms to the intent of the members

In the crime of occupational embezzlement, the term "an intention of unlawful acquisition" means an intention to dispose of another person's property in violation of his/her occupational duty with the intention of having the custodian of another person's property gain his/her own interest or a third person as in the case of his/her own property (see, e.g., Supreme Court Decision 2001Do5439, Feb. 5, 2002). In the crime of occupational embezzlement, the term "an act in violation of his/her duty" includes any act in violation of his/her fiduciary duty by failing to perform an act as a matter of course that should not be expected under the provisions of statutes, the content of the contract, or the good faith principle, or by performing an act that is expected not to perform as a matter of course, in light of the content and nature of the business performed (see, e.g., Supreme Court Decision 2002Do758,

It is reasonable to see that the form of church properties belongs to collective ownership, and therefore, if the church's articles of association or other regulations are not followed, the management and disposition of the church properties shall be made by a resolution of the majority of the members of the general meeting (see Supreme Court Decision 99Du5566, Jun. 15, 2001). Thus, if the church's unconstitutional money is used in conformity with the intentions of the members of the church belonging to the church, it shall not be deemed as an act of violating its duties.

However, it is clear that the use of church money in order to commemorate or deal with the defendant's personal corruption or irregularities, such as embezzlement, property issues, illegal election of the chief supervisor, and female problems, constitutes an act of violating his/her duties, and it cannot be deemed that it conforms with the intent of the members.

According to the records, the confirmation of the members at the church meeting (the name omitted) shall be confirmed that the defendant prepared the audit results report, and the audit shall be delivered to the auditor immediately before the church, and the audit shall be reported to the auditor, and the detailed details of the use of the church fund shall not be reported at all, and it shall be made by the defendant in a way that the defendant passed through the church with the numbers of the members, and it shall be made by inducing the members to pass through the church, and it shall be confirmed that the defendant "if there is any fact that he has reported in a way to the members, he shall check the audit results report to the church office," and it shall be confirmed that there is no one who has raised or confirmed the matter of the audit results report from among the members, such as each of the facts charged in this case, the defendant shall not be deemed to have lawfully obtained

According to the records, the individual church members belonging to the Korea Youth Association have to establish a planning committee and consult on important matters in order to facilitate the operation of the collective church. While the defendant uses the public fund of a church, most of the above procedures are required to use the church fund after the resolution by the planning committee or the execution committee, even if the defendant has passed the resolution by the planning committee or the execution committee pursuant to the provisions inside the church, the act of the planning committee or the execution committee's members' consent to use the church fund to interfere with the defendant's personal corruption or irregularities or handle the defendant's private complaint constitutes an act of breach of trust against the members, and according to the records, the defendant is the head who is the member of the planning committee of the Korea Youth Association. But according to the records, the defendant withdraws the form of election by voting at the planning committee, but in fact, the decision of the planning committee is elected by all persons who are living in the defendant, and it is difficult to see that the defendant's genuine opinion is not only the defendant's own opinion but also the defendant's opinion to open it to the public with the planning committee's opinion.

In addition, according to the records, around August 2003, which was after the investigation of this case started, it is recognized that some of the details of the church contributions used by the defendant were revealed to the members of the church (name omitted) church, and that consent was obtained, but even in obtaining such consent, the defendant decided to use it as a customary one for the illegal election expenses of the chairman of the supervisory committee, and there is no responsibility for himself, and the court's decision is made by the planning committee on the use of various newspaper advertising expenses that reflect the defendant's personal corruption and the fees for attorney fees related to the case (name omitted of broadcasting station and program). The court's decision is made with respect to the use of the public funds of the (name omitted of the church) church for the termination of the Buddhist relationship with the non-indicted 1 or the use of the public funds of the (name omitted of the church) church for the criminal case against him, and therefore, the use of the funds for the purpose of gathering it is difficult to see that the defendant unilaterally obtained the consent of the members in favor of the defendant.

The judgment of the court below to the same purport is just, and there is no violation of law such as the use of church contributions and the misapprehension of legal principles on church decision-making.

Therefore, the argument in the grounds of appeal on the premise that the use of the church money of this case conforms to the intention of the members or went through the planning committee or the execution committee does not constitute embezzlement or breach of trust is without merit.

2. As to the assertion of misunderstanding the legal nature of the relationship between the church and the church pastors

Even if the defendant has contributed to the growth and development of the church (the name omitted of the church) and is a member of the church (the name omitted of the church), the church (the name omitted of the church) is a separate organization of the defendant as the representative of the defendant, and the defendant's embezzlement, property issues, illegal election of the chief supervisor, female problems, etc. are merely illegal acts of the defendant, and thus, they cannot be deemed as pertaining to the affairs of the church (the name omitted of the church). The defendant's personal corruption or improper acts are revealed in TV, and thus, the reputation of the (the name omitted of the church) church or its members cannot be deemed to be harmed because the defendant's personal corruption or improper acts are revealed in TV, or the defendant is subject to criminal punishment. Thus, the use of the public fund of the (the name omitted of the church) church to raise or deal with such personal corruption or irregularities constitutes an act of violating his duties.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the relation between a church and a church pastor.

Therefore, all of the arguments in the grounds of appeal on the premise that the defendant's act of denying or handling the above individual corruption is not an act of violating his/her duties, or that the defendant's act of violating his/her duties is not an act of violating his/her duties, or that he/she did not intend to obtain unlawful recognition, are without merit.

3. As to the assertion of violation of the rules of evidence as to each of the occupational embezzlement and occupational breach of trust in this case

Examining the admitted evidence of the court below in light of the records, it is just that the court below found the defendant guilty of the crime of occupational embezzlement and occupational breach of trust in the judgment of the court below, and there is no violation of the rules of evidence as alleged in the grounds of appeal.

4. As to the argument that the statute of limitations expired

The statute of limitations for a blanket crime is in progress from the time when the last criminal act was completed (see Supreme Court Decision 2002Do2939, Oct. 11, 2002). The statutory penalty for occupational embezzlement is imprisonment or a fine not exceeding 10 years and the statute of limitations expires after the lapse of 7 years from the end of the crime (Article 249(1)3 of the Criminal Procedure Act). The defendant used his funds for election and the exercise of election expenses from July 30, 1995 to January 26, 197 in a single and continuous manner under the same method under the following following of the crime, and even if it is a single and continuous criminal, the crime was committed repeatedly for a certain period of time with respect to embezzlement against the victim (name omitted), which is a blanket crime, and it is obvious that the statute of limitations for the defendant has not yet been instituted for the above crime until 203 years have passed since the end of the crime.

Therefore, the ground of appeal pointing this out is without merit.

5. As to the argument as to whether the defendant is a building owner under the Building Act

Article 2(1)12 of the Building Act provides that "the term "project owner" means a person who orders construction or substantial repair of a building, installation of building equipment, or construction of a structure, or who executes such construction on his/her own with a field manager assigned." According to the records, the defendant purchased four lots of land, such as Gangwon (detailed number omitted) in the name of Nonindicted 3, the defendant's wife, and since the owner of the above land was Nonindicted 3, a building report for constructing a villa on the above land was also made in the name of Nonindicted 3. Meanwhile, according to the records, the defendant discussed the overall contents of the construction design for a villa to be newly constructed on the above land and requested the construction work of the above villa to him/her, and it can be seen that the defendant ordered construction of the above villa building to be managed and supervised by Nonindicted 5 and Nonindicted 6, the chief executive officer of the school association, and the defendant who ordered construction of the above villa building, is the actual owner of the building.

In the same purport, the court below is just in finding the owner of the above villa as the defendant and finding the defendant guilty of the violation of each Building Act as to each judgment against the defendant, and there is no error of law by misunderstanding facts against the rules of evidence or by misapprehending the legal principles of the Building Act, as alleged in the grounds of appeal.

6. Conclusion

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

Justices Park Jae-sik (Presiding Justice)