Defendant 1 and one other

Defendants

He/she shall file prosecutions, Kim Jong-Un (Trial)

A public-service advocate for best use

Daegu District Court Decision 2012Gohap3124 Decided January 16, 2013

The Defendants’ appeal is dismissed.

1. Summary of grounds for appeal;

A. According to the labor contract between the Defendants and the victim non-indicted 1 corporation (hereinafter “victim company”), if the Defendants fail to pay monthly transport earnings standard amount to the victimized company, the victimized company has practically implemented the taxi commission scheme as above. However, the said labor contract providing the taxi commission scheme is null and void in violation of Article 21(1) of the Passenger Transport Service Act. Thus, the Defendants cannot be deemed to have been in the position of a person who keeps the money as stated in the facts charged.

B. The Defendants were permitted by Nonindicted 2, the head of the business department of the victimized company, to use part of the transportation revenues at will due to food, tobacco value, expressway tolls, etc., and even if there was no permission for such disposition, even if the victimized company did not pay the full amount of the transportation revenues during the said period, and thus, there was no intention to acquire unlawful profits or to make an occupational embezzlement. As such, the Defendants believed that there was no intention to acquire unlawful profits or to make an occupational embezzlement.

C. Nevertheless, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous in mistake or misapprehension of legal principle.

2. Determination

A. Whether there is a person who keeps in custody of business

According to the evidence duly adopted and examined by the court below, the defendants paid the total transport income on the day between the victimized company and the company in full, and the wages are paid in accordance with the separate wage standard table, and the amount exceeding the standard amount of monthly transport income (2,125,000 won per day (85,000 won per day in the case of the defendant 1), and 2,200,000 won in the case of the defendant 2 (88,000 won per day) in the case of the defendant 2) shall be paid in 60% by the workers, and the employer shall be paid in piece rate by 40%, and the labor contract (hereinafter referred to as the "labor contract in this case") shall be concluded for the shortage.

On the other hand, Article 21(1) of the Passenger Transport Service Act provides that "a transport business entity prescribed by Presidential Decree shall obtain the full amount of the fare or charge that a transport employee receives from a transport employee after being qualified to engage in driving service pursuant to Article 24 and is obliged to collect the total amount of the fare or charge that he/she receives from the transport employee." In addition, it is apparent in the language that Article 21(1) of the Passenger Transport Service Act provides only the obligation to collect the total fare or charge that the transport employee receives, unless otherwise provided for in the distribution of the fare or charge that he/she receives, and there is no provision regarding the working conditions such as the wage level of each workplace and the wage system. As such, the transport business entity may determine the total amount of the transport fare or charge that he/she receives from the transport employee under the Labor Standards Act as an autonomous consultation between the labor and the transport employee under the conditions as prescribed by the Labor Standards Act (see Supreme Court Decision 2004Du7665, Mar. 30, 207).

Therefore, the Defendants are obligated to pay the full amount of the transport revenues on the day according to the instant employment contract, and the right to settle the amount exceeding or falling short of the standard amount of transport revenues on the monthly basis. Therefore, it is reasonable to view that the Defendants are in the position of a person who keeps the total amount of transport revenues on the same day for the damaged company. Accordingly, this part of the Defendants’

(b)the intent of unlawful acquisition or occupational embezzlement;

As seen earlier, as long as the Defendants were obligated to pay the full amount of the transport revenues on the day to the damaged company, it can be sufficiently inferred that there was the intent of unlawful acquisition or occupational embezzlement. The testimony by Nonindicted 2, Nonindicted 3, and Nonindicted 4 of the witness of the lower court, and the statement in the written statement by Nonindicted 2, Nonindicted 3, and Nonindicted 4, are sufficient to allow the victimized company to use part of the transport revenues at will, or it is difficult to recognize that Nonindicted 2 had the authority to grant the above disposition on behalf of the victimized company, even if Nonindicted 2, even though he did so, he did not have the authority to allow the above disposition on behalf of the victimized company). Since it is insufficient to recognize that the Defendants knew that he had been aware of the Defendants’ arbitrary use of part of the transport revenues (in the testimony by Nonindicted 2 of the original witness, Nonindicted 5 of the victimized company’s regular director, even if based on the testimony by Nonindicted 2, the fact that the transport employees were aware of the embezzlement and the fact that the employees were deprived of human resources. However, this is not justified.

3. Conclusion

Therefore, the defendants' appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since there is no reason to dismiss the defendants' appeal. It is so decided as per Disposition.

Judges Lee Jin-hee (Presiding Judge)