(영문) 서울중앙지방법원 2014.4.4. 선고 2013고합1072 판결

From April 6, 2003, the defendant is the chairperson of the "victim's clan" (hereinafter referred to as the "victim's clan") who represents the Victim's clan and has been in charge of general affairs.

Around October 6, 2003, the Defendant transferred KRW 946,857,00 from the Korea Land Corporation to the agricultural accounts in the name of the Defendant, 14,59 square meters of land E 14,59 square meters, and around April 8, 2005, transferred KRW 379,794,300 to the same account for five parcels of 15,769 square meters of farmland owned by the victim from the Korea Land Corporation; KRW 15,78,300 among the above offices of 0,75 square meters of 0,753 square meters of land owned by the victim; KRW 20,00,000 among the above offices of 20,000, the Defendant paid KRW 15,000 to the above 20,000,000,000 for the above 20,000,000 among the above offices of 20,000 square meters of 7,00.

Summary of Evidence

1. The defendant's partial statement in the first protocol of trial;

1. Legal statement of witness P;

1. The statement of the witness P in the third protocol of trial;

1. Examination protocol of the accused by the prosecution (including the substitute part);

1. Each police statement of P;

1. Court rulings (1) (2) , written judgments (2) , written judgments (3) , statement of transactions of ordinary deposits, list of applicants for subsidies by each resolution of the board of directors, list of applicants for subsidies, deposits without passbooks, certificates of transfer without passbooks, investigation reports (Submission of Materials A), data list, minutes, statement of intent to attend meetings, meeting records, certificates of intent to attend meetings, certificates of membership of the board of directors (articles of incorporation, etc.), register of participants of the board of directors, list of applicants for previous support funds, list of applicants for written judgments (decisions of temporary clans), written judgments (adjudications invalidity of a resolution of a general meeting of the board of directors), full certificates of matters to be registered, list of members of the clans, rules of association, articles of association, list of articles of association of the D clans Association, copy of protocol of admission, written rulings (Seoul Central District Court Decision 2009Gahap4568), written judgments

Application of Statutes

1. Article applicable to criminal facts;

Article 3 (1) 2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Feb. 10, 2012); Article 356 and Article 355 (1) of the Criminal Act [In general, the upper limit of imprisonment shall be 15 years of imprisonment prescribed by the main sentence of Article 42 of the former Criminal Act (Amended by Act No. 10259, Apr. 15, 2010)];

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

1. Social service order;

Article 62-2(1) of the Criminal Act, Article 59 of the Act on Probation, etc.

Judgment on the defendant and his defense counsel's assertion

1. Summary of the assertion

A. The defendant received approximately KRW 4.38 billion as compensation for the confinement of the victim's clans in the position of the chairperson of the victim's clan and distributed approximately KRW 1.7 billion among them to the clan members, but this was only legitimately distributed in accordance with the resolution of the victim's clans board, and the defendant did not dispose of it at will.

B. There was no criminal intent or illegal acquisition of the victim’s clan properties for embezzlement.

2. Facts of recognition;

According to the evidence duly adopted and investigated by this Court, the following facts can be acknowledged.

A. Since 1951, the victim clan created Q 17 years Q 17 years R has been practically engaged in the activities of the victim clan, such as setting aside a vision on October 12, 1951, which is the starting day of each year, and applying for management of a certain land as a memorial. Since the 1970s, S has been taking overall control over the victim clan as a similar clan, and thereafter, T (the defendant's punishment) has been representing the victim clan as the chairperson or similar.

나. P은 1994. 1. 30.경 ① 피해자 종중인 'D종회' 회칙과 결의서를 작성한 것을 비롯하여 ② 'Q 휘 U [R의 아들, J의 조부(祖父), Q 18세]자 H종회', ③ 'Q 휘 V [R의 손자, J의 부(父), Q 19세자 H총회', ④ 'Q 휘 J [R의 증손자, Q 20세)자 H종회', ⑤ 휘 W [R의 증손자, Q 20세)자 H종회', ⑥ 'Q 휘 X (J의 아들, Q 21세)자 H총회', ⑦ 'Q 휘 Y[한자로는 'Z'로 기재되어 있으나 한글로는 'Y'로 기재되어 있음, J의 아들, Q 21세] 자H총회', ⑧ 'Q 휘 AA (J의 손자, Q 22세)자 H총회', ⑨ 'Q 휘 AB [한자로는 AC' 기재되어 있으나, 한글로는 'AB'자로 기재됨, J의 손자, Q 22세]자 H종회', ① 'Q휘 AD (J의 증손자, Q 23세)자 H총회' 등 총 10개 종중의 회칙과 결의서를 작성하였다. 당시 피해자 종중의 회장인 T를 비롯한 종중 원로들은 일부 종원들 앞으로 명의신탁되어 있던 피해자 종중 소유의 토지에 관하여 대종중인 피해자 종중과 소종중들인 ② 내지 10① 종중 등의 명의로 소유권이전등기를 경료하기로 한 다음 그 부동산등기 부상 각 종중 대표자 명의를 P으로 하기로 결정하면서, P에게 종원들 앞으로 명의신탁되었던 피해자 종중 토지에 대하여 ① 내지 10 종중 명의로 소유권이전등기를 마치는 실무적 업무를 처리하도록 하였다.

C. Accordingly, P was registered in P as the representative of the above ① or ① clans from 1994 to 1995 because it received several parcels of land trusted by the victims' clans, including the victim's clans, and completed the registration of ownership transfer in each of the above clans. The real estate register was registered in P as the representative of the above ① or ① clans (However, P did not have the above qualifications for a part of the clans, because P did not have the qualifications for a clans, it cannot be viewed as the "chairperson who actually represents P ① or 10 clans," and it appears to have been registered as the representative of the real estate register for the convenience of registration affairs).

D. Around April 6, 2003, the victim clan opened an extraordinary general meeting on the ground that the victim clan held the regular general meeting at the beginning of January of each year, but due to the sudden election of the former president (T, which was the chairperson of the victim clan, died on January 2003), it shall hold an extraordinary general meeting on the grounds that it will hold a meeting by gathering the opinions of the members in order to efficiently operate a meeting and transparently manage the union and revise the articles of association, and manage the finance. The defendant was elected as the chairperson at the above general meeting. The defendant was elected as the chairperson at the above general meeting, and not only the descendants of the 20-year-old J, but also the descendants of the 20-year-old AE, 'W' and '20-year-old AE' were present.

(4) On April 6, 2003, the minutes were recorded as if they were prepared by the H branch. However, as seen below, the H branch is a similar organization newly organized on May 4, 2003, and the 'D branch' is held on April 6, 2003. Meanwhile, since the Defendant was appointed as the president of the victim clan on April 6, 2003, he was in charge of the protection of graves and religious rites of the clan until 2008.

E. However, on May 4, 2003, the descendants of "J 20 years old, including the defendant," among the descendants of "J 17 years old and older, held a general meeting of the clan on May 4, 2003 and elected the defendant as the representative of the clan. The articles of incorporation provide that "H clan" shall be the latter descendants of "J 20 years old and older," and that "a person who resides or resided in AF may become a member of the family" (Articles 1 and 5).

F. After that, on August 2003, the Defendant completed the registration of change of the indication of the registered titleholder who changed the name of the representative on the real estate register from P to the Defendant, on land where ownership registration has been made in the name of the victim clans, including the victim clans.

G. From the beginning of 2003, a part of the real estate which completed the registration of transfer of ownership in the name of the victim clan was conducted by public institutions such as Young-si from the beginning of 2003, and as a result, the compensation for the amount equivalent to the compensation was deposited in the account under the name of the defendant who deposited the victim clan as the depositer or was registered as the representative, and the defendant received the compensation for expropriation of KRW 4,381,33,300 (hereinafter referred to as the "compensation for expropriation of this case") in total as stated in

H. However, around November 25, 2007 and around April 11, 2008, the defendant held each board of directors to pay part of the compensation for expropriation of this case to the applicants under the articles of incorporation only for the amount of KRW 10 million per household or KRW 5 million per five million per household in the name of the applicants from among the Class 1 applicants who are admitted to membership (the descendants of the JJ at the age of 20), and to pay the total amount of KRW 5 million in the name of operating expenses for each type of paper. In addition, around November 25, 2007, the defendant paid KRW 415,000,000,000 including the defendant among the Class 5 applicants among the Class 1 applicants including the defendant among the Class 3 applicants on April 11, 2008, the total amount of KRW 308,000,000,0000 among the Class 2 applicants and KRW 308,000,00 each of the Class 20.

3. Determination as to whether the act constitutes embezzlement

A. Relevant legal principles

Since the property owned by a clan belongs to the collective ownership of members of the clan, it shall comply with the rules of the clan first, and since there is no rules of the clan concerning the management and disposition thereof, it shall follow the resolution of the general meeting of the clan, even though it is a disposition of the property of the clan by the representative of the clan, its act is null and void without following such procedures (see, e.g., Supreme Court Decision 92Da27034, Oct. 10, 192).

On the other hand, a clan is a clan with a separate entity that differs from the members of the common clan because the common ancestor who is the object of the members of the clan is established according to who is the common ancestor who is the object of the members of the clan and the scope of the members of the clan can be determined based on this basis (see, e.g., Supreme Court Decision 2001Da58870, Aug. 23, 2002). In addition, a clan with its unique meaning does not require a special organization as a clan organization in naturally occurring custom for the purpose of protecting the graves of the common ancestor, conducting religious services, and promoting friendship among the members of the common ancestor, and part of the descendants of the common ancestor cannot be arbitrarily excluded from its members. Thus, an organization that only some members of the common ancestor reside in a specific area is merely a similar organization of the clan and its unique meaning cannot be a clan (see, e.g., Supreme Court Decision 200Da16800, Apr. 12, 2002).

B. Determination

In full view of the following circumstances recognized by the evidence duly admitted and investigated by this court, the Defendant, without authority, arbitrarily paid the shares of this case owned by the victim clan for the benefit of himself or the members of the clan, and embezzled them for the benefit of himself or the members of the clan.

① Article 17 subparag. 2 of the Rules of the Victim’s clan provides that “The matters concerning the acquisition and disposal of fundamental property shall be decided by the general meeting: Provided, That if necessary, the duties of the general meeting may be promoted and performed by the board of directors to the board of directors.” [The 13-2 No. 13-2 (Investigation Records 331), the 14, 15th of the judgment No. 15] of the evidence list, and the distribution of the compensation for the accommodation of this case is about the disposal of the clan’s property, so the resolution of the general meeting of the Victim’s clan is necessary to distribute the compensation for the confinement of this case. However, the defendant who is the representative of the Victim’s clan cannot distribute the compensation for the confinement of this case

In contrast to the unique meaning of the clans of Q 17 years old as a joint ancestor, the victims' clans are members of the clans of the clans of the clans of 20 years old and over 30 years old as the descendants of J on May 4, 2003 with respect to the qualifications of members of the clans of the clans of 20 years old and above, and in other cases, a person who resides or has resided in AF may become a member of the clans of the clans of the clans of this time. Therefore, the victims' clans of the clans of the clans of the clans of the same clans of the same clans of the same clans of this time, and their legal nature are different.

③ Although the Defendant had adopted a resolution of the board of directors on November 25, 2007 and April 11, 2008 to distribute part of the instant compensation for confinement mainly to the members of the clan to which he belongs, it is merely a resolution of the board of directors of each clan similar to the clan, which is not a resolution of the general meeting of the victims’ clans.

4. Whether the criminal intent of embezzlement and the intention of unlawful acquisition are recognized;

A. Relevant legal principles

In embezzlement, unlawful acquisition intent means an intention that a person who keeps another’s property intends to dispose of it by himself/herself without authority contrary to the purpose of entrustment (see, e.g., Supreme Court Decision 2013Do12155, Feb. 27, 2014).

Meanwhile, where the Defendant denies the criminal intent of embezzlement or the intent of unlawful acquisition, the facts constituting the subjective element of the crime of embezzlement are bound to be proven by the method of proving indirect facts having considerable relevance to the nature of the things given the nature of the things, and what constitutes indirect facts having considerable relevance ought to be reasonably determined by the method of reasonably determining the link of facts based on the strict observation or analysis power based on normal empirical rule (see, e.g., Supreme Court Decision 2010Do3842, Nov. 10, 201).

B. Determination

In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by this court, the Defendant was deemed to have disposed of the shares of this case without authority as the intention of embezzlement and the intention of unlawful acquisition for the benefit of the accessories himself/herself or the small guns.

(1) Not only difference between the victim and the clan members, the qualification for the clan members, the number of members, etc., but also there is no particular reason to confuse the adopted child in light of the victim's family and the clan members' status and activity experience, etc.

Since most of the compensation for accommodation was registered in the name of the victim clan, and the defendant received the compensation for accommodation of this case as the representative of the victim clan, it shall be deemed that the compensation for accommodation of this case was clearly aware that it is the property of the victim clan.

③ The Defendant intentionally committed the instant crime under the subjective judgment that most of the real estate owned by the victim clans was acquired by the contribution of the lineal descendants of 20 years old and later, instead of distributing the instant compensation by confusion between the victim and the clans of the clans, the compensation for accommodation of the instant case, which was acquired therefrom, shall also be attributed to the clans comprised of lineal descendants of 20 years old and latter descendants of J.

④ Although the Defendant distributed the instant shares to some of the lineal descendants of “W” and “AG’s 20 years of age,” the victim’s clan members (200 persons) are about 10 times the number of the members of the clan (200 persons), while the Defendant’s descendants of “20 years of age from among the 205 persons who received the distribution of the instant shares of KRW 1.75 billion among the 205 persons who received the distribution of KRW 1.75 million, the latter descendants of “20 years of age from among the 205 persons who received the distribution of the instant shares of KRW 1.75 million, including AH, and the latter descendants of “20 years of age,” are only 10 persons, such as AI (total KRW 100 million). Accordingly, it is difficult to deem that the distribution of the instant compensation for expropriation is in mind of the victim’s entire clan members.

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for one year and six months to seven years; and

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of Punishment] Embezzlement and Breach of Trust, Type 3 (at least KRW 500 million, but less than KRW 5 billion)

【Special Convicted Person】

[Scope of Recommendation] Two to Five years of imprisonment (Basic Area)

3. Determination of sentence;

In light of the fact that the crime of this case was committed with the custody of the compensation money for the confinement of the victim's clan as the chairperson of the victim's clan was embezzled by distributing it to the members of the clan mainly among the members of the clan as if it was the property of the clan, and that there was a large amount of damage to the victim's clan which caused about 1.7 billion won to the victim's clan, the crime of this case is poor in its nature, and that it did not reach an agreement with the victim's clan and did not completely recover from damage. Meanwhile, the defendant did not have any previous conviction before the crime of this case since he was 72 years old, and the defendant seems to have contributed to the operation and activities of the victim's clan, such as embezzlement of the clan property for a considerable period of time, not embezzlement of the defendant's clan property for personal exploitation, all of the persons who received the distribution of this case are members of the victim's clan in the future and caused large damage to the victim's clans by taking account of various circumstances, such as the motive and circumstances of this case's settlement, etc.

It is so decided as per Disposition for the above reasons.

Judges

The presiding judge of the Supreme Court;

Judges Kim Gin-han

Judges in the order of precedence

Note tin

1) A prosecutor filed a prosecution on March 28, 2005 stating this part of the expropriation compensation of KRW 379,714,300 for four parcels, including a square meter of the F forest owned by the victim's clan, at the Daejeon regional land management office located in the new Si, Si, Si, Si, Si, Myeon, Eup, Myeon, Dong-si, the Daejeon regional land management office, located in the area of road compensation for the defendant's clan, stating that "the expropriation compensation of KRW 379,714,300 for the same account is remitted." However, according to the records, the fact that around April 8, 2005, the expropriation compensation of KRW 379,794,30 [Article 370,206, L, M, and N, etc. for four parcels] + KRW 9,587,400 (i.e., the expropriation compensation of KRW 348 square meters prior to 0,000 in the Asia).