Whether the existence of a partnership relationship is subject to examination in a case prosecuted for simple embezzlement

In a case prosecuted for simple embezzlement, if the defendant used and consumed the money held by him even if he is not in a partnership with the victim and refused to return the money, the crime of embezzlement is established, but the court below did not examine only the relationship of the business and the usefulness of the money of the partner, and did not examine and determine the details of the custody of the money, the preparation of a documentary evidence, etc.

Articles 355 and 356 of the Criminal Act; Article 308 of the Criminal Procedure Act

Defendant

Prosecutor

Daejeon District Court Decision 82No346 delivered on December 22, 1982

The judgment of the court below is reversed and the case is remanded to Daejeon District Court Panel Division.

We examine the grounds of appeal.

According to the reasoning of the judgment below, in order for the defendant to be liable for the crime of embezzlement like the facts charged of this case, the court below held that the defendant is in the position of keeping the money of this case due to the relationship between the defendant's Kim Jae-in, Cho Jae-sik and Cho Jae-ma's sales business, and that the defendant's voluntary consumption of the money of his partner is required without the above partners' consent, and considering the macroscopic evidence, from March 1976, the defendant and the non-indicted Cho Jae-sung operated a business of supplying feed with the trade name of Dong Jae-sung, and the above Cho Jae-sung operated a joint investment and distribution of profits against his mutual name, but whether the defendant and the non-indicted Kim Jae-sung operated the above business of supplying the money of this case, since the defendant's statement after the investigation agency of the above Cho Jae-sung and the defendant's use of the money of this case was inconsistent or merely inconsistent before and after the above investigation agency, it cannot be viewed that the defendant did not have any other relation with the above 70 of the above 0 of the contract of embezzlement and the money of this case.

The crime of embezzlement is classified into two forms of embezzlement: (a) occupational embezzlement established by a person who keeps another’s property in violation of his/her duties to embezzlement or refuse to return such property; and (b) simple embezzlement is not established by a person holding another’s property in violation of his/her duties; (c) the amount, time, circumstances, etc. of his/her use and consumption are somewhat different; (d) the fact that the defendant consumeds a certain amount of eight million won as the recovery title of investment funds invested in the enterprise; and (e) the defendant did not have invested a cash in the enterprise of this case (i) there was no fact that the defendant has invested a certain amount of KRW 3,500,000 in the same business with the early exchange division, and (iii) there is no evidence to recognize the defendant’s investment in the same case by deeming that the defendant’s investment was made by his/her related person, including the defendant, and it is difficult to view that the defendant’s investment was made by his/her own writing and signed and sealed. Moreover, even if the defendant prepared and delivered the above fact that he/she did not have any criminal liability for embezzlement.

Therefore, the court below should have deliberated and finalized the process of keeping the above amount of KRW 15,00,00 or 15,000 or 15,00,00 or 8,700,00 or 8,700,000 (the correct amount according to the defendant's legal action) used and consumed by the defendant. However, in order to impose a criminal charge on the defendant, the defendant is in the status of keeping the money of this case due to the relationship between the above Kim Jae-sung and Cho Jae-sik and the sales business, and even though he does not reach the premise that the defendant's money should be consumed on his own without the consent of the above partners, the court below erred in the misapprehension of legal principles as to simple embezzlement and the crime of occupational embezzlement, which led to the failure to exhaust all necessary deliberation, and thus, the appeal that caused the error is justified.

Therefore, the judgment of the court below is reversed, and the case is remanded to the Daejeon District Court Panel Division for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Il-young (Presiding Justice)