[1] In a case where an operator or a manager of a corporation has no relation with a corporation or raises a separate funds with a corporation fund for personal purposes, whether the “illegal acquisition intent” in the crime of occupational embezzlement is recognized (affirmative) and the standard for determining the existence of such funds

[2] The case affirming the judgment below which acquitted the defendant et al. as to the facts charged of occupational embezzlement on the ground that the act of allowing the employees to deposit regular deposits entrusted by the employees in the off-the-counter transaction system itself cannot be deemed as the act of creating a separate funds from the official funds of the above credit cooperative

[3] The case affirming the judgment below which acquitted the defendant et al. of violation of the above Act (private financial assistance) on the ground that the act of lending regular deposits deposited in the off-the-counter transaction system to union members does not constitute "private financial assistance" under Article 8 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[4] Whether the crime of evading compulsory execution is established where a creditor of compulsory execution does not recognize the existence of a claim (negative)

[1] For the establishment of the crime of occupational embezzlement, there must be an intention of unlawful acquisition, which refers to an intention of disposal of the property of another person in his/her custody in violation of his/her occupational duty for the purpose of pursuing the benefit of himself/herself or a third party, such as his/her own property. Even if an operator or a manager of a corporation created funds through the fund of a corporation, it is difficult to recognize the intention of unlawful acquisition in the account book for the purpose of making it difficult for a third party, other than the owner of the relevant non-fund, to discover the funds, or if it is recognized as a means of raising funds necessary for the operation of a corporation, it is difficult to recognize the intention of unlawful acquisition. However, if the operator or manager of a corporation, not for the purpose of a corporation, but for the purpose of deducting funds from a corporation for personal use, if he/she or it separately raises funds for the purpose of taking them out for the personal use, the act of creation itself can be deemed as realizing the intent of unlawful acquisition. In such a case, whether it was the nature of the corporation should be determined by comprehensively taking into account all the circumstances such as the creation of funds.

[2] The case affirming the judgment below that the defendant et al., who is an officer of a community credit cooperative, had the above community credit cooperative's employees deposit the regular deposit to the foreign transaction system, not the normal transaction system, on the ground that it is merely an act of entering the deposit amount in the foreign transaction system's account or the borrowed name account in the integrated computer network's account, and it cannot be deemed an act of raising a separate fund from the official funds of the above community credit cooperative in itself, on the ground that the above act of having the employees of the above community credit cooperative deposit to the foreign transaction system, not the normal transaction system.

[3] The case affirming the judgment below which acquitted the defendant et al. of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (private financial brokerage, etc.) on the ground that the act of lending a regular deposit deposited in the off-the-counter transaction system, not a normal transaction system, to union members, cannot be deemed as lending a loan to the defendant et al.'s account or to a third party's account other than a credit cooperative, and thus it does not constitute private financial brokerage under Article 8 of the Act

[4] The crime of evading compulsory execution is a creditor's right, which is the basis of compulsory execution, because the protection of creditor's right is the principal legal interest, so the existence of a creditor's right is the elements of the crime of evading compulsory execution. Therefore, if the existence of a claim is not recognized, the crime of evading compulsory execution

[1] Articles 35 (1) and 356 of the Criminal Act / [2] Articles 30, 32, 355 (1), and 356 of the Criminal Act; Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [3] Articles 30 and 32 of the Criminal Act; Article 8 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [4] Article 327 of the Criminal Act

[1] Supreme Court Decision 99Do2889 Decided September 17, 199 (Gong1999Ha, 2269) Supreme Court Decision 2005Do2626 Decided June 27, 2006, Supreme Court Decision 2007Do9318 Decided August 21, 2008, Supreme Court Decision 2006Do694 Decided February 12, 2009 / [4] Supreme Court Decision 88Do48 Decided April 12, 198 (Gong198, 864) (Gong198, 2007Do305 Decided May 8, 2008)

Defendant 1 and nine others

Defendant 1 and one other and the prosecutor

Law Firm Han-gu et al.

Daejeon High Court Decision 2010No88 decided August 4, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

For the purpose of establishing a crime of occupational embezzlement, there must be an intent of unlawful acquisition, referring to the intention of de facto or legal disposal of the property of another person, which is in violation of one’s duties for the purpose of pursuing one’s own or a third party’s interest. Even if an operator or a manager of a corporation creates a non-financing by using a corporation’s funds, it is difficult to recognize an intent of unlawful acquisition if it is merely a subdivision on the books for the purpose of making it difficult for a third party, other than a juristic person, to discover it, or it is recognized as a means of raising funds necessary for the operation of a juristic person (see, e.g., Supreme Court Decisions 9Do2889, Sept. 17, 199; 2007Do9318, Aug. 21, 2008). However, if an operator or a manager of a juristic person separate funds from a juristic person for the purpose of taking advantage of the corporate purpose, not for a juristic person’s own purpose, it shall be determined as 20.6.

The court below held that the act of Defendant 1 and Defendant 6, who served as the actual operator of the community credit cooperatives of this case, to have their employees deposit their deposits in the bank for an embezzlement in the relationship with the bank. The court below held that if the bank's regular deposit is deposited in the bank for personal purposes without any connection with the bank, it should be deemed that the money should be kept and managed separately from the customer's deposits deposited through the normal transaction system, and it should be deemed that the act of Defendant 1's act of embezzlement and embezzlement of the part of the bank's funds should not be recognized as being identical to the amount of funds separate from the amount of funds of the bank's official funds. The court below held that the act of Defendant 1 et al.'s act of embezzlement and embezzlement of the part of the bank's funds belonging to the bank's employees for the purpose of embezzlement of the Act on the Aggravated Punishment and Aggravated Punishment and Aggravated Punishment of Specific Economic Crimes (the act of Defendant 1 et al. of embezzlement of the part of the bank's funds.)

Examining the evidence and records in light of the above legal principles, the above fact-finding and judgment of the court below are just and acceptable. Contrary to the prosecutor's grounds of appeal, there were no errors in the misapprehension of legal principles as to the criteria for recognition of illegal acquisition or intent, thereby affecting the conclusion of the judgment.

Meanwhile, the court of final appeal may investigate and determine only within the extent of filing an appeal based on the grounds of final appeal. As such, the grounds of final appeal should specify the grounds of final appeal and explain specific and explicit reasons as to which part of the judgment below is in violation of the statutes. If the grounds of final appeal submitted by the appellant does not explain such specific and explicit reasons, it cannot be deemed that the legitimate grounds of final appeal have been submitted (see, e.g., Supreme Court Decisions 9Do5513, Apr. 21, 2000; 2008Do5634, Apr. 9, 2009).

According to the records, while the prosecutor filed an appeal against the defendants 2, 4, 9, 10, 11, 19, and 20 in the petition of appeal against the defendants 2, 4, 9, 10, 11, 19, and 20, the prosecutor does not state specific and explicit grounds for appeal as to which part of the judgment below is unlawful or unjustifiable. In light of the above legal principles, the part of the judgment below as to the above defendants among the judgment below is difficult to be deemed to have been submitted with legitimate grounds for appeal, and thus,

2. As to Defendant 1’s ground of appeal

In full view of the various circumstances as indicated in its reasoning, the lower court convicted Defendant 1 and Defendant 3 of this part of the facts charged on the ground that Defendant 1, in collusion with Defendant 3, forged documents related to loans made by Nonindicted 1 and 2, and by exercising this right, he can be recognized that he received the money in its holding from the Defendant 3 and 4 for the purpose of borrowing money without the victim Nonindicted 3 and 4’s ability or intent to repay the amount of the loan and the money embezzled.

The grounds of appeal asserted by Defendant 1 as to this part are merely grounds for the selection of evidence and fact-finding which belong to the exclusive authority of the lower court, and cannot be deemed legitimate grounds of appeal. In addition, in light of the reasoning of the lower judgment, the court below’s conviction of each part of the charges on the grounds of various circumstances as stated in its holding is justified. In so doing, contrary to what is alleged in the grounds of appeal, there is no error of law by misunderstanding facts contrary to logical and empirical rules, which affected the conclusion of the judgment.

3. As to Defendant 3’s ground of appeal

The court below found Defendant 3 guilty of this part of the charges on the following grounds: (a) in collusion with Defendant 1, Defendant 3 forged documents related to loans made by Nonindicted 1 and 2; (b) embezzled the amount equivalent to the loans in its holding; and (c) as a breach of duty to extinguish Defendant 1’s security against loan claims against Defendant 1 held by the instant credit cooperative; and (d) obtained pecuniary benefits equivalent to the loans in its holding, and caused property damage equivalent to the same amount to the above credit cooperative; and (c) thereby, found Defendant 1 guilty of this part of the charges.

The grounds of appeal asserted by Defendant 3 as to this part are merely grounds for the selection of evidence and fact-finding which belong to the exclusive authority of the lower court, and cannot be deemed legitimate grounds of appeal. In addition, in light of the reasoning of the lower judgment, the court below’s conviction of each part of the facts charged on the grounds of various circumstances as stated in its holding is justified. In so doing, contrary to what is alleged in the grounds of appeal, there is no error of law by misunderstanding facts contrary to logical and empirical rules, which affected the conclusion of the judgment

4. Conclusion

Therefore, both prosecutor and Defendant 1 and 3’s appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)