[1] The meaning of concealment as a form of embezzlement, and whether concealing the company's secret funds in the account books to the general fund on the account books constitutes such concealment (negative)

[2] The meaning of the intention of co-processing as a subjective element of co-principal

[1] The concealment as a form of embezzlement means that the custodian of another's property is in a difficult condition to discover the property in conflict with the original part of the commission. Even if the funds raised by the defendant were concealed in the company's account books, it is merely a subdivision of the account books to make it difficult for a third party, other than the owner of the funds, to discover the funds. Thus, the intent of unlawful acquisition by the defendant cannot be acknowledged merely because the funds raised by the defendant were concealed in the company's account books.

[2] As a subjective element for the establishment of a joint principal offender, the intent of joint process is not sufficient only to recognize another person’s crime and to accept it without restraint, and it should be one of the joint intent to commit a specific criminal act, and it should be deemed that one’s own intent is transferred by using another person’s act.

[1] Article 355 (1) of the Criminal Act / [2] Article 30 of the Criminal Act

[2] Supreme Court Decision 96Do2427 delivered on January 24, 1997 (Gong1997Sang, 708), Supreme Court Decision 97Do1940 delivered on September 30, 1997 (Gong1997Ha, 3364), Supreme Court Decision 97Do3297 delivered on June 26, 1998 (Gong1998Ha, 2044), Supreme Court Decision 98Do1832 delivered on September 22, 1998 (Gong198Ha, 2633)

Defendant 1 and one other

Prosecutor and Defendant 1

Attorneys Hah Ho-bong et al.

Seoul High Court Decision 99No829 delivered on June 23, 1999

All appeals by Defendant 1 and the Prosecutor are dismissed.

1. Defendant 1’s defense counsel’s grounds of appeal are examined.

In light of the records, the evidence of the first instance court maintained by the court below and maintained the first instance court which found the defendant guilty of committing the crime in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) in the judgment of the court below is just, and there is no illegality of recognizing the act corresponding to the act after the misappropriation or of expanding the scope of the intent

The concealment as a form of embezzlement means that the custodian of another's property is in a difficult condition to discover the property against the original intent of the entrustment. Even if the funds raised by Defendant 2, etc. are concealed in the company's account books, it is merely a subdivision on the account books to make it difficult for a third party, other than the owner of the relevant non-financial funds, to find it difficult, and thus, it cannot be recognized as the defendant's intent of unlawful acquisition. Thus, from the contrary perspective, the argument that the act of voluntary use of the non-financial funds constitutes an act subsequent to punishment cannot be accepted, on the premise that the funds of this case were already concealed in the account books, on the premise that the funds of this case were already embezzled.

All of the arguments in the grounds of appeal are rejected.

2. Prosecutor's grounds of appeal are examined.

A. As to the acquittal part against Defendant 1

(1) As to Defendant 1’s breach of trust with a total amount of KRW 250,000,000 received from gambling vibration

In light of the records, the court below is justified in rejecting the statements made in the prosecution and the court of first instance in the court of first instance, which correspond to the facts charged that Defendant 1 received a total amount of KRW 250,000,000 from booms, and thus rejected the statements made in the prosecutor's office and the court of first instance for the reasons as stated in its holding, and it is not erroneous in matters of law that misleads the facts against the rules of evidence.

The ground of appeal on this point is rejected.

(2) As to Defendant 1’s occupational embezzlement of KRW 300,000,000 in collusion with Defendant 2

As a subjective requirement for the establishment of a joint principal offender, the intent of joint process is insufficient only to recognize another person’s crime but not to restrain it, and the intent to jointly commit a specific criminal act should be one of the parties’ intent to move one’s own intent by using another’s act (see, e.g., Supreme Court Decisions 97Do3297, Jun. 26, 1998; 98Do1832, Sept. 22, 1998).

The court below found Defendant 2's finding Defendant 1 as the council member's office around the beginning of August 1997, and found that Defendant 2 had already resigned from the representative director of the non-indicted corporation and had already been the adviser of the non-indicted 1 to solve the problem of the non-indicted 1, that he had no choice but to give 300 million won to the non-indicted 1 in order to resolve the problem of the non-indicted 1, and that Defendant 1 had agreed to this, and that he did not report the payment to Defendant 1 thereafter, and found Defendant 1 not guilty on the ground that it is insufficient to recognize that Defendant 1 had committed the crime in collusion with Defendant 2.

In light of the records and the legal principles as seen above, the recognition and decision of the court below is just and there is no illegality in the misapprehension of legal principles as to the accomplice.

We cannot accept the allegation in the grounds of appeal on this point.

B. As to the acquittal part against Defendant 2

In light of the record, the court below affirmed the judgment of the court of first instance which acquitted Defendant 2 of the facts charged that Defendant 2 embezzled the sales price of KRW 1,500,00,000 in collusion with Nonindicted 2 and 3 on the charges of embezzlement of KRW 1,50,000 from the purchase price of shares owned by an Abandoned Automobile Co., Ltd., on the grounds that Defendant 2 and 3 knew of the fact that the sales price of shares would not be used for the Abandoned Automobile Co., Ltd., and would be illegal as Defendant 1’s election fund, and there is no evidence to prove that Defendant 2 and 3 participated in the crime. In so doing

We cannot accept the allegation in the grounds of appeal on this point.

3. Conclusion

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

Justices Kim Jong-sik (Presiding Justice)