[1] Whether the representative director of the company's act of withdrawing and using large company funds under the name of provisional payment, etc. for purposes other than expenditures for the company without going through lawful procedures such as a resolution of the board of directors without the agreement on interest or maturity of payment constitutes embezzlement (affirmative)

[2] The meaning of "illegal acquisition intent" in the crime of occupational embezzlement, and whether an intent to return, compensate, or preserve the embezzled property after the fact is recognized (affirmative)

[1] Articles 355(1) and 356 of the Criminal Act / [2] Articles 355(1) and 356 of the Criminal Act

[1] [2] Supreme Court Decision 2010Do399 Decided May 27, 2010 / [1] Supreme Court Decision 2003Do135 Decided April 27, 2006 (Gong2006Sang, 969) / [2] Supreme Court Decision 82Do75 Decided September 13, 1983 (Gong1983, 1521), Supreme Court Decision 2005Do3431 Decided June 22, 2006 (Gong2006Ha, 1292), Supreme Court Decision 2010Do9871 Decided June 14, 2012

Defendant

Defendant and Prosecutor

Law Firm LLC, Attorneys Park Jong-mun et al., Counsel for the plaintiff-appellant

Gwangju High Court ( Jeju) Decision 2014No41 Decided August 20, 2014

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

The representative director of a company who withdraws and uses large amount of company funds for purposes other than expenditure for the company under the pretext of provisional payment, etc., and without going through lawful procedures such as a resolution of the board of directors, etc., does not constitute embezzlement by arbitrarily lending and disposing of company funds for private purposes by using the status of the representative director beyond the generally acceptable scope (see, e.g., Supreme Court Decisions 2003Do135, Apr. 27, 2006; 2010Do3399, May 27, 2010). The intent of illegal acquisition in the crime of occupational embezzlement refers to an intention of disposal of another person's property, such as in fact or in law, which is in violation of his/her duties for the purpose of pursuing his/her own or a third party's interest, and it does not interfere with the recognition of the intent of unlawful acquisition (see, e.g., Supreme Court Decisions 2003Do1325, Sep. 13, 1983; 2006Do36365.

According to the reasoning of the judgment below, the court below acknowledged the fact that the defendant, the representative director of the victim non-indicted 1 corporation (hereinafter "non-indicted 1 corporation"), based on the evidence duly adopted by the court of first instance, withdrawn 12.15 million won in total from the account under the name of the non-indicted 1 corporation for the provisional payment, etc., and used the company's funds for stock investment or personal purposes, and did not go through legitimate procedures, such as approval of the board of directors, as well as there was no agreement on interest or maturity. The court below determined that the defendant's status at the non-indicted 1 corporation, the process of withdrawing funds, and the purpose of using the withdrawn funds, the defendant was under the non-indicted 1 corporation's withdrawal from January 2009 to June 2012, the defendant was not aware of a large amount of debt, and thus the motive or purpose of the investment of the non-indicted 1 corporation cannot be deemed to have been used at any time for the transfer of the company's funds in the name of the defendant's director or the Internet account.

Examining the reasoning of the judgment below in light of the aforementioned legal principles, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the intent of unlawful acquisition in embezzlement and the timing of taking

B. Each fraud against the victim Nonindicted 3 and Nonindicted 4

The allegation in the grounds of appeal on this part is unlawful as it is merely an error of finding evidence and fact-finding, which belong to the lower court’s exclusive authority, with the purport that each statement made by the victim Nonindicted 3 and Nonindicted 4 is not reliable.

C. Violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment

The judgment of the court below which found the defendant guilty of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) among the facts charged in this case was just. Thus, the ground of appeal on the other premise is without merit.

In addition, the court below is just in taking measures to increase concurrent crimes by considering the defendant's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the violation of the Act on the Regulation and Punishment of Punishment of Criminal Proceeds Concealment as the substantive concurrent crimes relationship under the former part of Article 37 of the Criminal Act (see Supreme Court Decision 2012Do6079, Sept. 27, 2012), and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension

2. As to the Prosecutor’s Grounds of Appeal

Examining the reasoning of the judgment below in light of the records, the court below reversed the judgment of the court of first instance which found the guilty on the ground that there is no proof of the crime as to the part of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) due to payment of capital gains tax among the facts charged in this case, and found the guilty not guilty on the ground. Contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds of the principle

3. Conclusion

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

Justices Kim Yong-deok (Presiding Justice)