In a case where a transport company receives a certain amount of wages from the transport company and pays the transport income on the day to the transport company, and the transport company enters into an agreement to settle the transport income on a monthly basis, whether the act of the employee’s arbitrary consumption of the transport income constitutes embezzlement (affirmative), and whether the same applies to the case where the employee has a right to receive a partial allocation of income exceeding the taxi commission (affirmative

If a transport company and its employees receive a certain amount of wages from a transport company and then pay the transport income on the same day to the transport company. However, if the transport income exceeds the taxi commission, which is the standard amount of monthly transport income, the transport company shall calculate the transport income paid by the employee on a monthly basis, and if an agreement was concluded between the transport company and its employees to adjust the excess amount by allocating it at a certain rate to the transport company and its employees, and if the agreement was concluded to deduct and adjust the shortage from the worker’s wages was made, it is reasonable to deem that the total amount of the transport income that the employee was faced by the employee to own directly on his own, unlike the case where the employee directly reverts the excess amount of taxi commission, is under the management and control of the transport company. Thus, if the employee arbitrarily consumes the transport income, the crime of embezzlement is constituted. This is the case where the employee has a right to receive a partial allocation of the transport income exceeding

Articles 355(1) and 356 of the Criminal Act

Defendant 1 and one other

Defendants

Public-service Maximum Mymar

Daegu District Court Decision 2013No344 decided June 28, 2013

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

If a transport company and its employees receive a certain amount of wages from a transport company and then pay the transport income on the same day to the transport company. However, if the transport income exceeds the taxi commission, which is the standard amount of monthly transport income, the transport company shall calculate the transport income paid by the employee on a monthly basis, and if an agreement was concluded between the transport company and its employees to adjust the excess amount by allocating it at a certain rate to the transport company and its employees, and if the agreement was concluded to deduct and adjust the shortage from the worker’s wages was made, it is reasonable to deem that the total amount of the transport income that the employee was faced by the employee to own directly on his own, unlike the case where the employee directly reverts the excess amount of taxi commission, is under the management and control of the transport company. Thus, if the employee arbitrarily consumes the transport income, the crime of embezzlement is constituted. This is the case where the employee has a right to receive a partial allocation of the transport income exceeding

Examining the records in light of the aforementioned legal principles, it is justifiable for the lower court to have found the Defendants guilty of the instant charges on the grounds stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the rules of logic and experience, or by misapprehending the legal doctrine on the custodian in the course of embezzlement.

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

Justices Kim Chang-suk (Presiding Justice)