2016Do18327 (a) Occupational embezzlement

(b) A teacher who prepares false official documents;

(c) Teachers who falsely prepare official documents; and

A person shall be appointed.

Defendant and Military Prosecutor

Law Firm B

Attorney C

Law Firm (LLC) D

Attorney E, F, and G

High Court for Armed Forces Decision 2016No152 Decided October 17, 2016

June 28, 2018

All appeals are dismissed.

The grounds of appeal are examined.

1. On the grounds of appeal by the military prosecutor, the lower court affirmed the first instance judgment that acquitted the military prosecutor of the occupational embezzlement on the grounds of the change in the purchase between the instant facts charged, on the grounds stated in its reasoning.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on intent of unlawful acquisition

Meanwhile, the military prosecutor appealed the entire judgment of the court below, but the remaining part of the judgment except for the aforementioned part is not indicated in the grounds of appeal in the petition of appeal, and the appellate brief does not state the grounds of appeal.

2. As to the Defendant’s ground of appeal

A. On the grounds indicated in its reasoning, the lower court found the Defendant guilty of occupational embezzlement due to the purchase, etc. of the two kinds of the facts charged in the instant case, and determined that the amount of the embezzlement was USD 61,156, which was calculated by settling the amount of the embezzlement in excess of the amount of the pay, and constituted USD 28,886, which was calculated by deducting USD 32,270 from USD 61,156 which the lower court acquitted the Defendant.

B. Although the Defendant is not designated as accounting personnel under Article 2 of the Act on Liability of Accounting Personnel, Etc., if he/she performs accounting-related affairs in the substance of his/her duties, he/she should be deemed to be in the custodian of the crime of occupational embezzlement (see Supreme Court Decision 99Du5498, Feb. 23, 2001). Therefore, the Defendant, who served as a commander of a H unit, and was the final manager in charge of the execution, control, and supervision of the budget while serving as a commander of the H unit, may be in the position of a custodian

However, according to the records, the court consistently stated that the defendant's order to purchase the two shares using the supply cost budget was consistent with J, K, distribution officers L, etc., the I deputy captain of the I, K, and the distribution officers, and accordingly, that the defendant purchased a large quantity of shares with the supply cost budget.

In full view of the statements of these witnesses and the evidence duly admitted by the first instance court and the lower court, the fact that the Defendant incurred the difference in the amount of the supplies out of the incidental budget by having L et al. prepare a false disbursement resolution, etc. Furthermore, in light of the type, quantity, purchase amount, details and methods of purchase, and the situation of use after purchase, etc. recorded in the record, the Defendant’s intent of unlawful acquisition to use them for personal purposes may be sufficiently recognized. Furthermore, as alleged by the Defendant, the Defendant either donated or used them on the spot to transfer part of the purchase share, as alleged by the Defendant.

Even if the crime was committed, it is only the situation after the crime, and it does not affect the establishment of the crime.

C. Therefore, the lower court did not exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal, and did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the status of custodian in the crime of occupational embezzlement, intent to obtain unlawful acquisition, specification and calculation of the amount of embezzlement, credibility of statements, preparation of false official documents, and teachers of events, etc., and by preventing the Defendant from exercising his defense right.

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

Justices Kim So-young

Justices Go Young-young

Justices Kim Jong-il

Jeju High Court Decision 205 Cho Jae-chul